Citation Nr: 1444167	
Decision Date: 10/03/14    Archive Date: 10/10/14

DOCKET NO.  07-08 520	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for residuals of a head injury.

2.  Entitlement to service connection for a psychiatric disability.

3.  Entitlement to an initial rating higher than 10 percent for a thoracolumbar strain.

4.  Entitlement to an initial rating higher than 10 percent for a cervical strain.

5.  Entitlement to an initial rating higher than 10 percent for a left ankle strain and weakness.

6.  Entitlement to a higher initial rating for right ankle degenerative joint disease, rated noncompensable prior to November 1, 2010 and 10 percent disabling since that date.

7.  Entitlement to an initial rating higher than 20 percent for a right shoulder strain.

8.  Entitlement to a rating in excess of 30 percent for left total knee arthroplasty since May 1, 2011.

9.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney at Law


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

B. Elwood, Counsel


INTRODUCTION

The Veteran served on active duty from September 1964 to October 1968.

These matters come before the Board of Veterans' Appeals (Board) from October 2005, August 2012, and March 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Cleveland, Ohio and St. Petersburg, Florida and the Appeals Management Center (AMC) in Washington, DC.  The RO in St. Petersburg, Florida currently has jurisdiction over the Veteran's claims.  In the October 2005 decision, the RO denied entitlement to a rating in excess of 20 percent for residuals of a fracture of the left tibia and fibula with one-inch shortening and denied entitlement to a rating in excess of 10 percent for internal derangement of the left knee.  

In the August 2012 decision, the AMC made the following determinations: granted service connection for a thoracolumbar strain and assigned an initial 10 percent disability rating, effective from October 13, 2004; granted service connection for a cervical strain and assigned an initial 10 percent disability rating, effective from October 13, 2004; granted service connection for a left ankle strain and weakness and assigned an initial 10 percent disability rating, effective from October 13, 2004; granted service connection for right ankle degenerative joint disease and assigned an initial noncompensable disability rating, effective from October 13, 2004; and granted service connection for a right shoulder strain and assigned an initial 20 percent disability rating, effective from October 13, 2004.

In the March 2013 decision, the RO denied the Veteran's petition to reopen a claim of service connection for residuals of a head injury as new and material evidence had not been submitted and denied entitlement to service connection for a psychiatric disability.

The Veteran testified before the undersigned at an October 2010 videoconference hearing at the RO.  A transcript of that hearing has been associated with his claims folder.

In March 2011, the Board remanded for further development the issue of entitlement to a rating in excess of 20 percent for residuals of a fracture of the left tibia and fibula with one-inch shortening prior to March 31, 2010 and in excess of 30 percent for a total left knee arthroplasty on and after May 1, 2011.

The Board denied the claim for an increased rating for the service-connected left knee disability by way of a January 2013 decision.  The claim for a TDIU was also remanded by the Board for further development.  The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court).

In September 2013, the Court set aside the Board's January 2013 decision, in part, and remanded the case for readjudication in compliance with directives specified in an August 2013 Joint Motion filed by counsel for the Veteran and VA.  In pertinent part, the Joint Motion specified that the parties only sought remand as to that portion of the Board's decision that denied entitlement to a rating in excess of 30 percent for a total left knee arthroplasty since May 1, 2011.

In a January 2014 decision, a Decision Review Officer assigned an initial 10 percent disability rating for right ankle degenerative joint disease, effective from November 1, 2010.

The Veteran's claim of service connection for residuals of a head injury was originally denied in a January 2008 rating decision on the basis that the Veteran's cognitive/memory impairments were not incurred in service.  A January 2008 VA physical therapy consultation note was subsequently associated with the Veteran's paperless records in the Virtual VA system.  This record includes a report of memory problems dating back to the time that the Veteran was hit by a car in service in 1965.  As VA was in possession of this treatment record at the time of the January 2008 decision and it includes evidence of a continuity of symptomatology which suggests a possible relationship between a current disability and an in-service head injury, the Board finds that new and material evidence was received within a year of that decision.  See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992); 38 C.F.R. § 3.156(a).

Hence, the initial January 2008 decision which denied entitlement to service connection for residuals of a head injury is not final, the Veteran's initial claim of service connection for that disability remains pending, and the Board will adjudicate the claim on a de novo basis.  See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156 (a), (b).

In addition to the paper claims file, there are Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims files associated with the Veteran's claims.  The documents in these files have been reviewed and considered as part of this appeal.
The issues of entitlement to service connection for residuals of a head injury and a psychiatric disability and entitlement to a higher initial rating for a right shoulder strain are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Since October 13, 2004, the Veteran's thoracolumbar strain has been manifested by pain, stiffness, tenderness, muscle spasms, and painful motion; thoracolumbar spinal flexion has been to between 70 and 90 degrees or greater, extension has been to between 10 and 20 degrees, and right and left lateral flexion and lateral rotation have all been to between 20 and 30 degrees or greater, with no additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, or flare ups; there has been no spinal ankylosis, abnormal gait due to the service-connected back disability, abnormal spinal contour, or incapacitating episodes of intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician.

2.  Since October 13, 2004, the Veteran's cervical strain has been manifested by pain, stiffness, fatigue, lack of endurance, tenderness, muscle spasms, and painful motion; cervical spinal flexion has been to between 45 and 55 degrees, extension has been to between 35 and 60 degrees, right and left lateral flexion have both been to between 30 and 40 degrees, right lateral rotation has been to between 55 and 80 degrees, and left lateral rotation has been to between 60 and 80 degrees, with no additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, or flare ups; there has been no spinal ankylosis, abnormal gait due to the service-connected neck disability, abnormal spinal contour, or incapacitating episodes of intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician.

3.  From October 13, 2004 through April 19, 2007 and since March 30, 2011, the Veteran's left ankle strain and weakness has been manifested by pain, instability, tenderness, deformity, swelling, lack of endurance, and stiffness; ankle dorsiflexion has been to between 10 and 20 degrees or greater and plantar flexion has been to between 25 and 40 degrees, with no additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, or flare ups; there has been no ankylosis, malunion of the os calcis or astragalus, or astragalectomy.

4.  From April 20, 2007 through March 29, 2011, the Veteran's left ankle strain and weakness was manifested by pain, weakness, and tenderness; ankle dorsiflexion was to 5 degrees and plantar flexion was to 20 degrees; there was no ankylosis, malunion of the os calcis or astragalus, or astragalectomy

5.  Since October 13, 2004, the Veteran's right ankle degenerative joint disease has resulted in ankle dorsiflexion to between 10 and 20 degrees or greater and plantar flexion to between 25 and 45 degrees, with no additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, or flare ups; there has been no ankylosis, malunion of the os calcis or astragalus, or astragalectomy.

6.  Since May 1, 2011, the Veteran's left total knee arthroplasty has been manifested by pain, weakness, stiffness, instability, and guarding of movement; knee flexion has been to between 110 and 130 degrees and knee extension has been to 0 degrees, with no additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, or flare ups; it is not exhibited by severe painful motion or weakness.

7.  The Veteran is service-connected for the following disabilities: right total knee arthroplasty, rated 30 percent disabling; left total knee arthroplasty, rated 30 percent disabling; a right shoulder strain, rated 20 percent disabling; a cervical strain, rated 10 percent disabling; a thoracolumbar strain, rated 10 percent disabling; left ankle strain and weakness, rated 10 percent disabling; right ankle degenerative joint disease, rated 10 percent disabling; and residuals of a fracture of the right ring finger, rated noncompensable.  His combined disability rating is 80 percent.

8.  Resolving reasonable doubt in his favor, the Veteran's service-connected disabilities preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him.
CONCLUSIONS OF LAW

1.  The criteria for an initial rating higher than 10 percent for a thoracolumbar strain have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2013).

2.  The criteria for an initial rating higher than 10 percent for a cervical strain have not been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237.

3.  The criteria for an initial rating higher than 10 percent, prior to April 20, 2007 and since March 30, 2011, for left ankle strain and weakness have not been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5270-5274 (2013).

4.  The criteria for an initial 20 percent rating, from April 20, 2007 through March 29, 2011, for left ankle strain and weakness have been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes (DCs) 5270-5274.

5.  The criteria for an initial 10 percent rating prior to November 1, 2010 for right ankle degenerative joint disease have been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5271.

6.  The criteria for an initial rating higher than 10 percent for right ankle degenerative joint disease have not been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5270-5274.

7.  The criteria for a rating in excess of 30 percent for left total knee arthroplasty since May 1, 2011 have not been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5055, 5256-5263 (2013).

8.  The criteria for a TDIU due to service-connected disabilities have been met.  38 U.S.C.A. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

As the Board is granting the claim for a TDIU, the claim is substantiated, and there are no further VCAA duties as to that issue.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

The appeal for higher initial ratings for the service-connected back, neck, and ankle disabilities arises from the Veteran's disagreement with the initial ratings assigned after the grant of service connection.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).

The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).

Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements.  Id.  There has been no allegation of such error in this case.

As for the claim for an increased rating for the service-connected left knee disability, under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a pre-adjudication letter dated in November 2004, the RO notified the Veteran of the evidence needed to substantiate his claim for an increased rating for the service-connected left knee disability.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The claimant's Veteran status has been substantiated.  He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in a March 2007 letter.  

The Court held in Vazquez-Flores v. Peake that 38 U.S.C.A § 5103(a) requires, at a minimum, that the Secretary notify the Veteran that, to substantiate an increased rating claim, the Veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Additionally, the Veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment.  Id.

Furthermore, the Court directed that as with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability.  Id.

The November 2004 letter told the Veteran that evidence of worsening could substantiate the increased rating claim.  He was notified in the letter that medical or lay evidence could be submitted to substantiate his increased rating claim and was provided with specific examples.  The letter also stated that the Veteran could submit letters from individuals who could describe the manner in which his disability had worsened.

The March 2007 letter explained that disability ratings are determined by applying VA's rating schedule under which the RO would assign a rating from 0 to 100 percent, and that it would consider evidence of the nature of the symptoms of the condition, their severity and duration, and their impact upon employment.

There was a timing deficiency in that the March 2007 letter was sent after the initial adjudication of the claim for an increased rating for the service-connected left knee disability.  This timing deficiency was cured by readjudication of the claim in a June 2009 supplemental statement of the case.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2013) 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) (per curiam).

At the Veteran's October 2010 hearing, the undersigned identified the issues on appeal at that time (including entitlement to an increased rating for the service-connected left knee disability) and notified the Veteran of the evidence necessary to substantiate his increased rating claim.  Also, the Veteran provided testimony as the symptoms and history of his left knee disability and he has submitted additional evidence during the course of the appeal.  Thus, he has demonstrated actual knowledge of the ability to identify and submit additional relevant evidence.  The duties imposed by Bryant were thereby met.

VA obtained some the Veteran's identified service treatment records, pertinent service personnel records, all available Social Security Administration (SSA) disability records, and all of the identified relevant post-service VA treatment records.  The Veteran has not reported, and the evidence does not otherwise indicate, that he has received any relevant post-service private medical treatment for his service-connected back, neck, ankle, or left knee disabilities.  In addition, the Veteran was afforded VA examinations to assess the severity of all these service-connected disabilities.

In its March 2011 remand, the Board instructed the AOJ to, among other things, request all records pertaining to the Veteran's treatment at the USAGH Frankfurt, Germany (97th General Hospital) in March and April 1965; obtain all relevant treatment records from the VA Medical Center in Cincinnati, Ohio (VAMC Cincinnati) dated since October 2009 and from the VA Medical Center in Gainesville, Florida (VAMC Gainesville) dated since March 2010; obtain the Veteran's SSA disability records; and afford the Veteran a VA examination to assess the severity of his service-connected left knee disability.

As explained above, all available SSA disability records and all relevant post-service VA treatment records (including those from VAMC Cincinnati and VAMC Gainesville dated since October 2009 and March 2010, respectively) have been obtained and associated with the claims file.  Additionally, VA examinations were conducted in March 2011 and January 2013 to assess the severity of the Veteran's service-connected left knee disability.  

The AOJ contacted the National Personnel Records Center (NPRC) in March 2011 and requested all available records pertaining to the Veteran's treatment at the USAGH Frankfurt, Germany (97th General Hospital) in March and April 1965.  The NPRC subsequently responded that a search of that facility's records dated in 1965 was conducted, but that no records pertaining to the Veteran were located.

In June 2011, the AOJ contacted the Veteran by telephone and informed him that additional service treatment records from the 97th General Hospital were not available and asked him whether he had copies of any such records in his possession.  He informed the AOJ that he did not have any such records in his possession.  Thus, any further efforts to obtain additional service treatment records would be futile.  38 C.F.R. § 3.159(c)(2) (2013).

Destruction of service treatment records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision.  Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996).  

Where service treatment records are missing, VA also has a duty to search alternate sources of service records.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  The service department has not suggested alternate sources of records.  As explained above, however, VA did ask the Veteran for copies of any records in his possession.  He has not indicated that he has any service treatment records in his possession.  Therefore, VA has no further duty to assist in obtaining any additional service treatment records.

Thus, with regard to the claims decided herein, the AOJ substantially complied with all of the Board's pertinent March 2011 remand instructions.  VA has no further duty to obtain any additional records or provide additional examinations with respect to these claims.  See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Analysis

I. Higher Initial Ratings/Increased Rating

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.  In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.   8 C.F.R. §§ 4.1, 4.2, 4.10. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  

The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged."  Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).

Disabilities evaluated on the basis of limitation of motion require VA 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 determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, to 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.  The examiner should also determine the point, if any, at which such factors cause functional impairment.  Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

A. Thoracolumbar/Cervical Strains

The Veteran's thoracolumbar and cervical strains are both rated under 38 C.F.R. § 4.71a, DC 5237 as a lumbosacral strain and cervical strain, respectively.  Under the applicable criteria, a lumbosacral strain is rated under the general rating formula for rating diseases and injuries of the spine.  38 C.F.R. § 4.71a, DC 5237.

Under the general rating formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees; or, combined range of motion of the entire thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, combined ranges of motion of the entire cervical spine greater than 170 degrees, but not greater than 335 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.  Id.

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or, combined range of motion of the entire thoracolumbar spine not greater than 120 degrees; or combined range of motion of the entire cervical spine not greater than 170 degrees; or, if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Id.

A 30 percent rating is warranted if forward flexion of the cervical spine is 15 degrees or less or if there is favorable ankyloses of the entire cervical spine.  Id.

A 40 percent rating is warranted if there is unfavorable ankylosis of the entire cervical spine; or, if forward flexion of the thoracolumbar spine is to 30 degrees or less ; or, if there is favorable ankylosis of the entire thoracolumbar spine.  Id.

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine.  Id.

Note 2 provides that normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees and the normal combined range of motion of the thoracolumbar spine is 240 degrees.  Each range of motion measurement is to be rounded to the nearest five degrees.

In this case, VA treatment records dated from November 2004 to December 2010, a July 2005 VA examination report, and the Veteran's testimony during the October 2010 hearing indicate that he reportedly experienced constant neck pain which was characterized as a dull ache and was 2/10 in intensity at baseline.  There was occasional morning neck stiffness for a few hours and the neck would fatigue with a lack of endurance.  The Veteran used medications and a heating pad to treat his neck symptoms.  Flare ups of increased neck pain occurred 4 to 5 times per month, lasted for 1 to 2 days at a time, were 7/10 in intensity, were precipitated by changes in weather and standing more than 15 minutes, and were alleviated by sitting, exercising, and medication use.  The Veteran was additionally limited by pain during flare ups and following repetitive use, but was not additionally limited by weakened movement, excess fatigability, (endurance), or incoordination.  The physician who conducted the examination concluded that it was not possible to state how many additional degrees of range of motion would be lost during a flare up because the Veteran was not examined during a flare up.

The Veteran also reported that he had experienced numbness, burning, and tingling across both shoulder blades in a 3-inch strip on both sides and that these symptoms had lasted a few years.  However, such symptoms had spontaneously resolved and he did not experience any other associated features or symptoms such as weight loss, fevers, malaise, dizziness, visual disturbances, weakness, or bladder/bowel complaints.  He did not use any assistive devices for his neck and did not have any history of neck or back surgery.  His neck problems affected his life and usual occupation in that when he was employed, he had to sit down 10 to 15 times per day due to his symptoms.  Also, he was unable to lift as a result of his back problems.  
Examinations revealed that the Veteran was in no apparent distress and that his spine, limbs, posture, gait, head position, spinal curvatures, symmetry in appearance, and symmetry and rhythm of spinal motion were all within normal limits.  The ranges of cervical spinal motions were recorded as flexion to 55 degrees with pain, extension to 60 degrees with pain, left lateral flexion to 30 degrees with pain, right lateral flexion to 35 degrees with pain, left lateral rotation to 60 degrees, and right lateral rotation to 55 degrees.  The ranges of motion were not affected by factors other than spinal injury or disease, such as the Veteran's body habitus.  

During a flare up or following repetitive use, the Veteran would be additionally limited by pain, but not by weakened movement, excess fatigability, "(endurance)", or incoordination.  There was objective evidence of painful motion on range of motion testing, but there was no muscle spasm.  The lower cervical spine was tender to palpation, but there was no postural deformity, fixed deformity (ankylosis), or abnormality of the back musculature.  X-rays revealed decreased disc height at the C6-C7 level with endplate sclerosis, mild anterior degenerative osteophytes at C5, C6, and C7, and multiple large osteophytes in the lower thoracic spine.  Vertebral alignment and body height were normal, the disc heights were well maintained, the prevertebral soft tissue was normal, and there were no definite cervical spine fractures.

Neurological testing revealed that right hand grip was slightly impaired (4+/5), but that muscle strength was otherwise normal (5/5) throughout.  Tone and rapid alternating movements were within normal limits, pronator drift was negative, and there was no atrophy, fasciculation, or tremor.  Deep tendon reflexes were normal (2/4) in the arms and legs and occasionally slightly diminished (1/4) in the ankles.  All reflexes were bilaterally symmetrical and toes were downgoing bilaterally.  Sensation was occasionally decreased to light touch and/or pinprick in the distribution of the median nerves bilaterally and on the left leg, sensation to vibration was occasionally decreased on the left foot, and there was occasionally no vibratory sense until the hands.  Double simultaneous extinction was intact and cerebellar testing revealed a normal finger-to-nose and toe-to-finger test bilaterally.  The Veteran's gait was marked by a limp at the left ankle and he swayed on Romberg testing, but he was able to rise to his toes and heels without difficulty, he did not break stride, and his tandem gait was unremarkable.  He had not experienced any incapacitating episodes with acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician during the previous 12 months due to intervertebral disc syndrome.

The Veteran was diagnosed as having degenerative joint disease in the cervical and thoracic spine.  The examiner who conducted the July 2005 VA examination noted that the Veteran made no complaints regarding low back pain and there was no pathology of the low back found during the examination.

During VA examinations dated in March 2011, the Veteran reported that he experienced constant pain in the cervical and low back regions.  The pain was 3/10 in intensity, increased to 6/10 in intensity with extreme ranges of motion of the cervical spine, bending, stooping, lifting, or walking more than 100 yards, and was treated with medications.  The cervical spine pain radiated into the right trapezius muscle more so than the left, but it did not radiate into any extremity.  The lumbar spine pain did not radiate into either lower extremity.  The Veteran's gait was unsteady due to shortening of the left tibia and fibula, but not due to his service-connected cervical or lumbar spine disabilities.  He had not experienced any falls and there were no fever, chills, dizziness, visual disturbances, numbness or weakness in the upper or lower extremities, erectile dysfunction, or bowel complaints.  Although he did experience nocturia, this problem was due to prostatic hypertrophy and not his cervical or lumbar spine disabilities.

The Veteran also reported that he was only able to stand for 15 minutes or walk for 100 yards at a time.  However, he seemed to be in pain after walking only 75 yards from the waiting room to the examination room.  He did not use any assistive devices.  He had been employed as a store manager until 2004, at which time he stopped working due to multiple conditions (including cervical and low back pain).  His activities of daily living were limited to mainly sedentary activities, he was limited in his ability to engage in sports and other strenuous recreational activities, and he was unable to bend, stoop, lift, or perform any heavy yard work or housework.  He was not limited in his ability to groom, bath, feed himself, or drive and he had not spent any days in bed and totally incapacitated during the previous 12 months due to his cervical or lumbar spine disabilities.

Examination revealed that there was straightening of the cervical and lumbar regions and that there was paraspinal muscle tenderness and spasm bilaterally in both the cervical and lumbar paraspinal muscles.  The Veteran's gait was antalgic due to shortening of the left lower extremity, but not due to his cervical or lumbar spine disabilities.  The ranges of motion of the cervical spine were recorded as flexion to 45 degrees, extension to 35 degrees, right and left lateral flexion both to 30 degrees, and right and left lateral rotation both to 60 degrees.  The ranges of motion were limited by stiffness, but not pain, and there was no change in the ranges of flexion or extension following three repetitions of these motions.  Also, there was no increase in pain intensity beyond the baseline of 3/10 and there was no evidence of increased weakness, pain, fatigability, or incoordination following repetitive motion.  The physician who conducted the examination concluded that it would be speculative to determine what the ranges of cervical spinal motion would be after repetitive motion outside of the examination setting.

The ranges of thoracolumbar spinal motion were recorded as flexion to 70 degrees with pain and stiffness, extension to 10 degrees with pain and stiffness, left and right lateral flexion both to 20 degrees with pain and stiffness, and left and right lateral rotation both to 20 degrees with pain and stiffness.  The Veteran attempted to touch his toes three times and there were no changes in the ranges of thoracolumbar spinal motion following these attempts.  There was no evidence of increased weakness, pain, fatigability, or incoordination of the thoracolumbar spine after repetitive motion and there was no increase in pain intensity beyond the baseline of 3/10.  The examiner again stated that it would be speculative to determine what the ranges of thoracolumbar spinal motion would be after repetitive motion outside of the examination setting.

A neurological examination revealed that straight leg raising was negative to 60 degrees bilaterally, that Lasegue sign was negative bilaterally, that sensation to light touch was normal in the upper and lower extremities, and that sensation to vibration was normal in both great toes.  The Veteran was areflexic and had no detectable tendon reflexes in the biceps tendons, brachioradialis tendons, triceps tendons, patellar tendons, or Achilles tendons.  However, this was not unusual and the areflexia was "not likely due to [the] service-connected cervical or lumbar spine conditions."  Diagnoses of a cervical strain and a thoracolumbar strain were provided.

The reports of VA examinations conducted in January 2013 indicate that the Veteran did not report any flare ups of his cervical spine or thoracolumbar spine disabilities.  The ranges of motion of the cervical spine were recorded as flexion and extension both to 45 degrees or greater, right and left lateral flexion both to 40 degrees, and right and left lateral rotation both to 80 degrees or greater.  Also, the ranges of motion of the thoracolumbar spine were recorded as flexion to 90 degrees or greater, extension to 20 degrees, and right and left lateral flexion and lateral rotation all to 30 degrees or greater.  There was no objective evidence of painful motion associated with any of these ranges of motion, the ranges of motion remained the same following 3 repetitions of motion, and there was no additional limitation in the ranges of motion following repetitive motion.  There was functional loss and/or functional impairment of the cervical spine and thoracolumbar spine in terms of less movement than normal, but there was no other functional impairment (including due to weakened movement, excess fatigability, incoordination, or pain on movement).

Moreover, there was no localized tenderness or pain to palpation of the joints/soft tissues of the cervical spine or thoracolumbar spine and there was no guarding or muscle spasm.  Muscle strength associated with elbow and wrist flexion and extension, finger flexion and abduction, hip flexion, knee extension, ankle plantar flexion and dorsiflexion, and great toe extension was normal (5/5) bilaterally and there was no muscle atrophy.  Deep tendon reflexes at the biceps, triceps, brachioradialis, knees, and ankles were all normal (2+) bilaterally and sensation to light touch at the shoulder area, inner/outer forearm, hands/fingers, upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes was normal bilaterally.  Also, straight leg raising testing was negative bilaterally.  Overall, the Veteran did not have any radicular pain, signs/symptoms due to radiculopathy, or any other neurologic abnormalities related to his cervical spine disability or thoracolumbar spine disability.  

Also, the Veteran did not have intervertebral disc syndrome of the cervical spine or thoracolumbar spine.  He did not use any assistive devices, there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis, there were no scars related to his service-connected cervical spine or thoracolumbar spine disabilities, there was no vertebral fracture, and there were no other pertinent physical findings, complications, conditions, signs, or symptoms.  The Veteran was diagnosed as having a cervical strain and a thoracolumbar strain.

The above evidence reflects that there is a thoracolumbar spine disability and a cervical spine disability and that these disabilities are associated with pain, stiffness, tenderness, and occasional muscle spasms.  Also, there have been occasional subjective reports of fatigue, lack of endurance, and flare ups.  Although the Veteran has exhibited an abnormal gait, the examiner who conducted the March 2011 VA examination explained that the gait abnormality was due to shortening of the left tibia and fibula and was not due to the service-connected cervical or thoracolumbar spine disabilities.  There is otherwise no evidence during the claim period that the Veteran's abnormal gait has resulted from any muscle spasm or guarding associated with the service-connected spinal disabilities.  Also, there is no evidence of any abnormal spinal contour at any time since the effective date of service connection.

In addition, the Veteran has been able to perform cervical spinal flexion to at least 45 degrees, extension to at least 35 degrees, left and right lateral flexion to at least 30 degrees, left lateral rotation to at least 60 degrees, and right lateral rotation to at least 55 degrees.  Also, he has been able to perform thoracolumbar spinal flexion to at least 70 degrees, extension to at least 10 degrees, and left and right lateral flexion and lateral rotation to at least 20 degrees.  There was pain associated with the ranges of motion of the cervical spine and/or thoracolumbar spine during the July 2005 and March 2011 VA examinations and the examiner who conducted the July 2005 VA examination reported that the ranges of cervical spinal motion were additionally limited by pain during flare ups or after repetitive use, but that there were no limitations due to weakened movement, excess fatigability, lack of endurance, or incoordination.  Also, the examiner who conducted the March 2011 VA examinations indicated that there was no increased weakness, pain, fatigability, or incoordination following repetitive use.  There were no changes in any ranges of spinal motion following repetitive use.

The examiners who conducted the July 2005 and March 2011 VA examinations did not specifically report whether there was any additional functional impairment due to pain or flare ups.  Cf. Mitchell, 25 Vet. App. at 43-4.  However, this deficiency was corrected in the January 2013 VA examination reports in that the examiner who conducted those examinations specifically reported that there were no additional limitations in the range of motion of the thoracolumbar spine or cervical spine following repetitive use and no functional loss and/or functional impairment of the thoracolumbar spine or cervical spine other than less movement than normal (including due to weakened movement, excess fatigability, incoordination, or pain on movement).  The Veteran did not report any flare ups during the January 2013 VA examinations.

Therefore, even considering pain and other functional factors, the Veteran's thoracolumbar spine and cervical spine symptoms during the claim period have not been shown to be so disabling to actually or effectively result in limitation of forward flexion of the thoracolumbar spine to greater than 30 degrees, but not greater than 60 degrees, limitation of forward flexion of the cervical spine to greater than 15 degrees, but not greater than 30 degrees, limitation of the combined range of motion of the thoracolumbar spine to not greater than 120 degrees, limitation of the combined range of motion of the cervical spine to not greater than 170 degrees, or any muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, which are the requirements for the next higher percentage rating based on limitation of motion of the thoracolumbar spine and cervical spine without evidence of ankylosis (i.e. a 20 percent rating) under DC 5237.  See 38 C.F.R. § 4.71a, DC 5237.  

Furthermore, there has been no evidence of spinal ankylosis at any time during the claim period and the absence of ankylosis was specifically reported by the examiner who conducted the July 2005 VA examination.  Also, the Veteran has not been diagnosed as having intervertebral disc syndrome (the absence of which was noted in the July 2005, March 2011, and January 2013 VA examination reports) and he has not reported any incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician at any time during the claim period.  Hence, higher ratings are not warranted on the basis of ankylosis or "incapacitating episodes" of intervertebral disc syndrome.

In light of the above findings, initial ratings higher than 10 percent for a thoracolumbar strain and a cervical strain under DC 5237 are not warranted at any time since the effective date of service connection.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DC 5237.

The Board acknowledges that there has been some objective evidence of neurological abnormalities during the claim period.  For example, neurological testing during the July 2005 VA examination indicated that right hand grip was slightly impaired (4/5), that deep tendon reflexes at the ankles were slightly diminished (1/4), that there was decreased sensation to light touch and pinprick in the distribution of the median nerves bilaterally, and that there was no vibratory sense until the hands.  During a December 2010 VA neurology evaluation, sensation was decreased  in the left leg and foot. Also, during the March 2011 VA examination the Veteran was areflexic in that there were no detectable deep tendon reflexes at the biceps tendons, brachioradialis tendons, triceps tendons, patellar tendons, or Achilles tendons.

However, the Veteran has only reported occasional radiation of his neck pain to the shoulders and he has not otherwise reported any radiation of neck or back pain to any extremity during the claim period, he did not report any low back symptoms during the July 2005 VA examination, and there was no pathology of the low back found during that examination.  Neurological findings during the March 2011 VA examination were normal other than the absence of certain deep tendon reflexes and the examiner who conducted that examination indicated that the absence of those reflexes was not unusual and that it was not likely due to either his service-connected cervical spine disability or service-connected low back disability.  Moreover, all neurologic findings were normal during the January 2013 VA examinations and the Veteran did not experience any radicular pain, signs/symptoms due to radiculopathy, or any other neurologic abnormalities related to his cervical spine disability or thoracolumbar spine disability.  In light of these findings, the preponderance of the evidence is against a finding that compensable cervical or lumbar radiculopathy has been present in either the upper or lower extremities at any time during the claim period.  Hence, separate ratings are not warranted for either cervical or lumbar radiculopathy.

B. Ankle Disabilities

The Veteran's left ankle strain and weakness is rated under 38 C.F.R. § 4.71a, DC 5271 as limitation of motion of the ankle.  His right ankle degenerative joint disease is rated under 38 C.F.R. § 4.71a, DCs 5010-5271.  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned.  38 C.F.R. § 4.27 (2013).  Here, the Veteran's right ankle disability has been described as traumatic arthritis (DC 5010), which has been rated on the basis of limitation of motion of the ankle under DC 5271. 

Traumatic arthritis is rated under the same diagnostic criteria as degenerative arthritis.  38 C.F.R. § 4.71a, DC 5010.  Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved.  If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 20 percent rating is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  A 10 percent rating is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups.  DC 5003.

Under DC 5271, a 10 percent rating is warranted for moderate limitation of ankle motion and a 20 percent rating is warranted for marked limitation of ankle motion. 38 C.F.R. § 4.71a, DC 5271.

The terms "moderate" and "marked" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence.  38 C.F.R. § 4.6 (2013).

The normal ranges of motion of the ankle are 20 degrees of dorsiflexion and 45 degrees of plantar flexion.  38 C.F.R. § 4.71a, Plate II (2013).

VA treatment records dated from February 2004 to January 2005 include reports of left ankle pain and instability which caused occasional falls.  The Veteran used an ankle brace to alleviate the instability.  Examinations revealed that there was some reduced mobility of the ankles with minimal pain and some tenderness during inversion of the left ankle.  There was slight shortening in a varus posture secondary to an old left ankle fracture, clinical deformity, swelling over the lateral ankle ligament, and tenderness to palpation over left ankle ligaments.  An anterior drawer sign was unable to be elicited during a March 2004 evaluation.  X-rays and MRIs of the left lower extremity revealed anterior talofibular ligament thickening and anterolateral low signal along the fibula (which were likely due to post-traumatic fibrosis), an old healed fracture in the upper part of the distal third of the tibia and fibula with sidewise displacement of one bone thickness, slight shortening and angulation, and an ankle spur.  There was no acute ligamentis or tendon injury and no evidence of subluxation of the ankle mortise.  The Veteran was diagnosed as having lateral and subtalar instability of the left ankle.

During a February 2005 VA examination, the Veteran reported that he experienced intermittent aches and pains in the left ankle and left ankle instability/giving out (which had last occurred approximately 2 years prior to the February 2005 examination).  He occasionally experienced flare ups of left ankle pain and lack of endurance which were caused by repetitive use of his lower extremities (e.g., standing more than 1 half hour, walking more than 15-20 minutes at a time) and required him to sit down.  He wore a left ankle brace to prevent instability and falls. 

Examination revealed that the Veteran was wearing a left ankle brace and that there was a 1 inch lift in his left shoe.  He did not walk with any external support or cane.  The examiner reported that he was able to "extend" each ankle to 10 degrees and that plantar flexion was to between 25 and 30 degrees bilaterally, with minimal discomfort over the anterolateral aspect of the left ankle.  There was some instability of the left ankle as compared to the right (i.e. left ankle inversion was to between 15 and 20 degrees and eversion was to 10 degrees, whereas right ankle inversion was to 10 degrees and eversion was to 5 degrees).  The Veteran exhibited tenderness and pain over the lateral side of the left ankle, but there was no soft tissue swelling, thickening, redness, or increased warmth over either ankle.  There was a bony prominence over the distal left tibia and fibula (particularly on the medial side) and this area as well as the lateral side of the distal fibula was tender and painful to palpation.  There a one inch shortening of the left leg as compared to the right and one-half inch atrophy of the left calf muscle as compared to the right, but there was no instability/motion over the old fracture area, the general alignment of the fracture was clinically normal, and motor strength over the right and left calf, the ankle, and the foot was normal (5/5) with no apparent muscle weakness over the left lower extremity.  The Veteran was diagnosed as having chronic lateral instability of the left ankle.

The report of a VA examination dated on April 20, 2007 reflects that the Veteran continued to use a left ankle brace and a lift in his left shoe.  His ankle no longer turned in while he was wearing the brace.  During repetitive activities (e.g., walking more than a half hour) he experienced persistent aches, pains, and weakness over the healed fracture area of the left lower extremity, but there was no lack of endurance or fatigue.  Examination revealed that there was 3/10 discomfort over the left distal tibia area.  There was a bony prominence over the distal tibia and fibula which was tender and painful on palpation (but there was no motion or movement of the area) and there was shortening of the left leg as compared to the right.  However, the general alignment of the left lower extremity was normal, there was no angular deformity over the fracture of the distal tibia or over the ankle or foot region, motor strength of the left calf, thigh, foot, and ankle was normal (5/5), and the sensation over the left tibia and ankle areas was intact to light touch.

Furthermore, the left ankle was nontender and nonpainful to palpation.  The ranges of motion of the left ankle were recorded as dorsiflexion to 5 degrees and plantar flexion to 20 degrees.  There was some discomfort over the anterolateral aspect of the ankle during the ranges of motion.  The ankle was stable and there was no soft tissue swelling, thickening, redness, or increased warmth of the ankle.  A diagnosis of a closed displaced fracture of the left distal tibia and fibula was provided.

During the October 2010 hearing and a VA examination dated on March 30, 2011 the Veteran reported that he experienced ankle weakness (which was worsened by walking 100 yards) and left ankle instability (while not wearing a brace ).  There was no heat, redness, dislocation, or recurrent subluxation of either ankle, the Veteran did not experience inflammatory arthritis or constitutional symptoms of arthritis, and he did not use any prosthesis or assistive devices other than a left ankle brace.  His activities of daily living were limited by his left ankle disability in that he was unable to walk more than 100 yards or perform strenuous yard work/home maintenance.

Examination revealed that there was no swelling, heat, redness, effusion, abnormal movement, or guarding of movement of the right ankle.  Also, there was no tenderness or joint effusion of the left ankle.  However, there was instability and guarding of movement of the left ankle.  The ranges of motion of the ankles were recorded as right ankle dorsiflexion and plantar flexion to 20 degrees and 45 degrees, respectively, and left ankle dorsiflexion and plantar flexion to 10 degrees and 30 degrees, respectively.  There was no pain associated with either ankle motion and no stiffness associated with right ankle motion.  There was stiffness associated with left ankle motion.  The ranges of motion of both ankles remained the same following 3 repetitions of the ranges of motion and there was no evidence of any increased weakness, pain, fatigability, or incoordination after repetitive motion.  The examiner noted that it would be speculation to report what the ranges of ankle motion would be outside of the examination setting.  X-rays of the left ankle were normal, but X-rays of the right ankle revealed trauma to the right medial malleola.  The Veteran was diagnosed as having right ankle degenerative joint disease and left ankle strain and weakness. 

The report of a VA examination dated in January 2013 indicates that the Veteran reported that he did not experience any flare ups of ankle symptoms.  The ranges of motion of both ankles were recorded as plantar flexion to 40 degrees and dorsiflexion to 20 degrees or greater.  There was no objective evidence of painful motion, the ranges of motion remained the same following 3 repetitions of ranges of motion, there was no additional limitation in the ranges of motion following repetitive use, and there was only functional loss and/or functional impairment of the ankles in terms of less movement than normal.  There was no weakened movement, excess fatigability, incoordination, or any other functional losses/impairments.    

Moreover, there was no localized tenderness or pain on palpation of the joints/soft tissue of either ankle, muscle strength associated with ankle plantar flexion and dorsiflexion was normal (5/5) bilaterally, joint stability tests were all normal bilaterally, there was no joint ankylosis, the Veteran had never experienced any shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of the calcaneus (os calcis), or malunion of the talus (astragalus), and he had not undergone a talectomy (astragalectomy) or any other ankle surgery.  There were no other pertinent physical findings, complications, conditions, or signs/symptoms associated with the service-connected ankle disabilities and there was no impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis.  X-rays revealed degenerative/traumatic arthritis of the right ankle.  The Veteran regularly used a left ankle brace for support and a cane to assist with ambulation and balance.  Diagnoses of degenerative joint disease of the right ankle and a left ankle strain were provided.

The above evidence reflects that there is a right and left ankle disability with pain, tenderness, discomfort, instability, stiffness, and limitation of motion.  The Veteran has also provided subjective reports of ankle weakness and lack of endurance.  
i. Right Ankle

With respect to the right ankle during the period from October 13, 2004 through October 31, 2010, the Veteran was able to perform dorsiflexion/"extension"  to 10 degrees and plantar flexion to between 25 and 30 degrees during the February 2005 VA examination.  The Board finds that since right ankle dorsiflexion was limited to half of normal during this examination, the Veteran's service-connected right ankle disability caused at least moderate limitation of ankle motion.  This is contemplated by a 10 percent rating under DC 5271.

As for the remainder of the claim period, the Veteran has been able to perform right ankle dorsiflexion to at least 20 degrees and plantar flexion to at least 40 degrees.  The Veteran has not reported any flare ups of right ankle symptoms and there has been no pain associated with the ranges of right ankle motion.  The examiner who conducted the February 2005 VA examination did not indicate whether there was any additional limitation of motion of the right ankle due to weakened movement, excess fatigability, incoordination, or pain.  Cf. Mitchell, 25 Vet. App. at 43-4.  This deficiency, however, was corrected in the March 2011 and January 2013 VA examination reports in that the examiners who conducted those examinations specifically reported that there were no changes in the ranges of right ankle motion following repetitive motion and no additional losses of range of motion or loss of function due to pain, weakness, fatigability, or incoordination, or any other factors other than less movement that normal.  

Thus, even considering functional factors, the evidence does not support assignment of an initial rating higher than 10 percent for the service-connected right ankle disability on the basis of limitation of ankle motion at any time since the effective date of service connection, because the ranges of ankle motion have been limited by no more than half the normal values.  Moreover, there is no evidence of any right ankle ankylosis, malunion of the os calcis or astragalus, or astragalectomy at any time during the claim period.  Hence, an initial 10 percent rating for right ankle degenerative joint disease is warranted for the entire period from October 13, 2004 through October 31, 2010, but an initial rating higher than 10 percent is not warranted at any time during the claim period.  See 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DCs 5270-5274.

ii. Left Ankle

With regard to the left ankle, the above evidence indicates that an initial rating higher than 10 percent is not warranted on the basis of limitation of motion at any time prior to April 20, 2007 or since March 30, 2011.  The February 2005, March 2011, and January 2013 VA examinations reveal that left ankle dorsiflexion was limited to at most 10 degrees and left ankle plantar flexion was limited to at most 25 degrees.  As the ankle motions were limited to no more than half the normal values during these periods, the symptoms most closely approximate the criteria for a 10 percent rating under DC 5271.

The Veteran reported occasional flare ups of left ankle pain and lack of endurance during the February 2005 VA examination.  Also, there was minimal discomfort associated with left ankle motions during that examination.  As explained above with regard to the right ankle, despite the fact that the examiner who conducted the February 2005 VA examination did not indicate whether there was any additional limitation of motion of the left ankle due to weakened movement, excess fatigability, incoordination, pain , or flare ups, this deficiency was corrected in the March 2011 and January 2013 VA examination reports in that those examination reports specify that there were no changes in the ranges of left ankle motion following repetitive motion and no additional losses of range of motion or loss of function due to pain, weakness, fatigability, or incoordination, or any other factors other than less movement that normal.  Also, the Veteran did not report any flare ups of ankle symptoms during the January 2013 VA examination.

Thus, even considering functional factors, the evidence does not support assignment of an initial rating higher than 10 percent for the service-connected left ankle disability on the basis of limitation of ankle motion at any time during the periods prior to April 20, 2007 or since March 30, 2011 because the ranges of ankle motion have been limited by no more than half the normal values.  These symptoms most closely approximate the criteria for a 10 percent rating under DC 5271, which contemplates moderate limitation of ankle motion.  Also, there is no evidence of any right ankle ankylosis, malunion of the os calcis or astragalus, or astragalectomy at any time during these periods.  See Id.

As for the period from April 20, 2007 through March 29, 2011, the Veteran was unable to perform left ankle dorsiflexion to more than 5 degrees during the April 2007 VA examination.  As ankle dorsiflexion was significantly less than half of normal during this period, the Veteran's service-connected left ankle disability caused marked limitation of ankle motion.  Based upon the evidence in this case, the exact onset of the Veteran's increased impairment of left ankle motion following the February 2005 VA examination cannot be determined with any certainty.  The earliest that that it can be factually ascertained that he met the criteria for a 20 percent rating is April 20, 2007, the date of the April 2007 VA examination.

Thus, an initial 20 percent rating for a left ankle strain and weakness under DC 5271 is warranted during the entire period from April 20, 2007 through March 29, 2011.  As this is the maximum schedular rating for limitation of ankle motion under DC 5271 and a higher rating requires evidence of ankylosis , the regulations pertaining to functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59) are not for application during this period.  See Johnston, 10 Vet. App. at 85.  There is no evidence of ankylosis at any time during this period.  Therefore, a rating higher than 20 percent is not warranted during this period.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DCs 5270-5271.

C. Left Knee Disability Since May 1, 2011

The Veteran's left total knee arthroplasty is currently rated under 38 C.F.R. § 4.71a, DC 5055 as a knee replacement with prosthesis.  Under DC 5055, a 100 percent rating is assigned for one year following implantation of a knee prosthesis for a service-connected knee disability, followed thereafter by a 60 percent rating when there are chronic residuals consisting of severe painful motion or weakness.  With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to DCs 5256, 5261, and 5262.  The minimum rating is 30 percent under DC 5055.  38 C.F.R. § 4.71a, DC 5055.
For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II (2013).

VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997).  The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating.  A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998).

The General Counsel has subsequently held that separate ratings can also be provided for limitation of knee extension and flexion.  VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). 

Limitation of knee flexion is rated as follows: a noncompensable rating is warranted when it is limited to 60 degrees; a 10 percent rating is warranted when it is limited to 45 degrees; a 20 percent rating is warranted when it is limited to 30 degrees; and a 30 percent rating is warranted when it is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260.

Limitation of knee extension is rated as follows: a noncompensable rating is warranted when it is limited to 5 degrees; a 10 percent rating is warranted when it is limited to 10 degrees; a 20 percent rating is warranted when it is limited to 15 degrees; a 30 percent rating is warranted when it is limited to 20 degrees; a 40 percent rating is warranted when it is limited to 30 degrees; and a 50 percent rating is warranted when it is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261.

Knee impairment with recurrent subluxation or lateral instability is rated as follows: a 10 percent rating is warranted if the condition is slight; a 20 percent rating is warranted if the condition is moderate; and a 30 percent rating is warranted if the condition is severe. 38 C.F.R. § 4.71a, DC 5257.
Although the Joint Motion specified that the parties only sought remand as to that portion of the Board's decision that denied entitlement to a rating in excess of 30 percent for a total left knee arthroplasty since May 1, 2011, the Joint Motion also directed the Board to consider the findings made during a March 2011 VA examination.  During that examination, the Veteran reported that he experienced left knee pain which was 4/10 in intensity, but increased to 6/10 in intensity during flare ups.  Such flare ups were caused by walking 100 yards, climbing stairs, or changes in barometric pressure.  The knee pain was treated with medications.  There was also knee weakness (which was worsened by walking 100 yards), stiffness, and instability/giving way, but there was no locking of the knee, heat, redness, dislocation, recurrent subluxation, inflammatory arthritis, or constitutional symptoms of arthritis.  The Veteran did not use any knee brace or assistive devices for ambulation.  His left knee disability impaired his activities of daily living in that he could not walk more than 100 yards or perform strenuous yard work/home maintenance.

Examination revealed that there was no left knee tenderness or joint effusion, but that there was knee instability and guarding of movement.  The Veteran was able to perform left knee flexion to 110 degrees and flexion was associated with stiffness, but no pain.  He was unable to perform any repetitive motion exercises, such as deep knee bends or squats.  The physician who conducted the March 2011 VA examination indicated that it would be speculative to state what the ranges of knee motion would be following repetitive motion.  However, the Veteran's limp caused by shortening of the left lower extremity did not change after walking 75 yards from the waiting room to the examination room and such walking could be considered a repetitive motion exercise.  The Veteran was diagnosed as having status post left total knee arthroplasty.

A January 2013 VA examination report reflects that the Veteran did not report any flare ups of left knee symptoms.  The ranges of left knee motion were recorded as flexion to 130 degrees and extension to 0 degrees.  There was no objective evidence of any painful motion, the ranges of motion remained the same following 3 repetitions of motion, there was no additional limitation in the ranges of motion following repetitive-use testing, and there was no functional loss or functional impairment of the knee and lower leg other than less movement than normal (including due to weakened movement, excess fatigability, incoordination, or pain on movement).  

Furthermore, there was no tenderness or pain to palpation for joint line or soft tissues of the knee, muscle strength associated with knee flexion and extension was normal (5/5), all knee stability tests were normal, and there was no evidence of any recurrent patellar subluxation/dislocation.  Also, the Veteran had never experienced any shin splints, stress fractures, chronic exertional compartment syndrome, any other tibial/fibular impairment, or meniscal condition, and he had not undergone any surgical procedure for a meniscal condition.  A left knee total joint replacement was conducted in 2010 and the examiner who conducted the January 2013 examination concluded that there were intermediate degrees of residual weakness, pain, or limitation of motion.  There were scars related to the Veteran's left knee disability, but none of the scars were painful or unstable and the total area of all related scars was not greater than 39 square centimeters (6 square inches).  There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the service-connected left knee disability.  

The Veteran regularly used a cane to assist with ambulation and balance, but there was no functional impairments of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis.  A diagnosis of residuals of left knee status post total knee replacement was provided.  The examiner concluded that the Veteran's subjective complaints during the examination appeared to be out of proportion to the objective examination findings, but the examiner did not elaborate further.

In order to warrant a rating in excess of 30 percent for the service-connected left knee disability, the Veteran would have to be found to have chronic residuals of a left knee replacement consisting of severe painful motion or weakness, ankylosis of the knee in flexion between 10 degrees and 20 degrees, limitation of knee extension to 30 degrees, nonunion of the tibia and fibula with loose motion and the need for a brace, or some combination of levels of limitation of extension, limitation of flexion, subluxation, or instability which equals a rating in excess of 30 percent.
The above evidence reflects that the Veteran reported left knee pain, weakness, stiffness, and instability/giving way during the March 2011 VA examination. However, the Board finds that there has not been severe painful motion or weakness of the left leg so as to warrant a 60 percent rating under DC 5055 at any time since May 1, 2011.  With respect to pain, the Veteran reported during the March 2011 VA examination that the intensity was generally 4/10, but increased to 6/10 during flare ups, and that the pain was treated with medication.  However, he did not use any knee brace or assistive devices for ambulation at the time of that examination, examination of the knee at that time did not reveal any objective evidence of knee tenderness or pain with motion, and he was able to perform knee flexion to 110 degrees without pain.  Also, his limp did not change after walking 75 yards.  Furthermore, there was no objective evidence of any painful knee motion or knee tenderness during the January 2013 VA examination, he was able to perform knee flexion and extension to 130 degrees and 0 degrees, respectively, during that examination, and there was no functional loss or functional impairment of the left lower extremity following repetitive motion due to pain on movement at that time.

As for weakness, knee instability was noted during the March 2011 VA examination.  Again, however, the Veteran did not use any assistive devices at the time of that examination and his gait did not change after walking 75 yards.   Despite the fact that he used a cane to assist with ambulation and balance at the time of the January 2013 VA examination, the ranges of left knee motion remained the same following repetitive motion and there was no functional loss or functional impairment of the left lower extremity following repetitive use due to any weakened movement or excess fatigability.  Also, muscle strength associated with knee flexion and extension was normal (5/5), all knee stability tests were normal, and there was no evidence of any recurrent patellar subluxation/dislocation during the January 2013 VA examination.  The examiner who conducted the January 2013 examination concluded that there were intermediate degrees of residual weakness, pain, or limitation of motion of the left knee (and not chronic residuals consisting of severe painful motion or weakness).

In light of the above described evidence, and particularly the fact that the ranges of knee flexion and extension have been well in excess of half the normal ranges, that pain has not been found to accompany active knee motion, that neither pain nor weakness have been found to cause additional range of motion loss of the knee, that muscle strength associated with knee motion was found to be normal, and that the January 2013 examiner concluded that there were only intermediate degrees of residual weakness, pain, or limitation of motion of the left knee, the Board finds that the residual pain and weakness of the Veteran's left total knee arthroplasty are not severe and that such symptoms more closely approximate the criteria for a 30 percent rating under DC 5055.  Thus, a rating in excess of 30 percent for left total knee arthroplasty under DC 5055 is not warranted at any time since May 1, 2011. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DC 5055.

As for whether a higher rating is warranted on the basis of limitation of knee extension or some combination of limitation of knee flexion, limitation of knee extension, and knee subluxation/instability, there is evidence of a left knee disability with pain, weakness, and stiffness.  The Veteran has been able to perform knee flexion to between 110 and 130 degrees and extension to 0 degrees.  Although he provided a subjective report of flare ups during the March 2011 VA examination and the examiner did not indicate whether there was any additional limitation of motion of the left knee due to weakened movement, excess fatigability, incoordination, pain, or flare ups, this deficiency was corrected in the January 2013 VA examination report.  The Veteran did not report any flare ups at the time of that examination and the examiner who conducted the examination specifically reported that there was no objective evidence of painful motion, there were no changes in the ranges of left knee motion following repetitive motion, and there were no additional losses of range of motion or loss of function due to pain, weakness, fatigability, incoordination, or any other factors other than less movement that normal.  

Thus, even considering pain and other functional factors, the Veteran's left knee symptoms have not been shown to be so disabling to actually or effectively result in limitation of knee flexion to 45 degrees or limitation of knee extension to 10 degrees -the requirements for compensable ratings for limitation of knee flexion and extension under DCs 5260 and 5261.  This entails a finding that the knee symptoms do not result in limitation of knee extension to 30 degrees, which is the requirement for a 40 percent rating under DC 5261.  Hence, a rating in excess of 30 percent for left total knee arthroplasty on the basis of limitation of knee extension or some combination of limitation of knee flexion and extension under DCs 5260 and 5261 is not warranted at any time since May 1, 2011.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DCs 5260-5261.

The Board acknowledges that there was evidence of knee instability during the March 2011 VA examination.  There was no evidence of any such instability during the January 2013 VA examination.  Nevertheless, even if it were assumed that there has been severe knee instability, such impairment only warrants a 30 percent rating under DC 5257 and this is the maximum schedular rating under that diagnostic code.  As explained above, the criteria for compensable ratings for limitation of knee flexion and extension under DCs 5260 and 5261 have not been met at any time since May 1, 2011.  Hence, even considering the evidence of knee instability, a rating in excess of 30 percent for left total knee arthroplasty is not warranted on the basis of limitation of knee motion and instability.  38 C.F.R. § 4.71a, DCs 5257, 5260-5261.

Additionally, the Veteran is not entitled to a rating under DCs 5256, 5258-5259, or 5262-5263 as there is no evidence of ankylosis, cartilage removal or dislocation, tibia or fibula impairment, or genu recurvatum at any time since May 1, 2011.

The January 2013 VA examination report indicates that there was scarring associated with the service-connected left knee disability.  The rating criteria for scars were revised during the course of this appeal, effective October 23, 2008.  See 73 Fed. Reg. 54,708 (Sept. 23, 2008).  These amendments, however, are only effective for claims filed on or after October 23, 2008, although a claimant may request consideration under the amended criteria.  In this case, the Veteran has not requested such consideration.  As his claim for an increased rating was received in October 2004, the 2008 amendments are not applicable in this appeal.

To warrant a compensable rating under the applicable criteria, a scar would need to involve the head, face or neck and have at least one character of disfigurement (DC 7800); be deep or cause limited motion and affect an area or areas exceeding at least 6 square inches (39 square centimeters) (DC 7801); be superficial and affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); be superficial and unstable (DC 7803); be superficial and painful on demonstration (DC 7804); or cause some limitation of the function of the part affected (DC 7805). 38 C.F.R. § 4.118, DCs 7800-7805 (2004).

In this case, the left knee scarring does not involve the head, face, or neck and there is no evidence that such scarring is deep, causes any limitation of motion or function, affects an area exceeding at least 6 square inches, or is unstable or painful.  Hence, a separate compensable rating for left knee scarring is not warranted at any time since May 1, 2011.  Id.

D. Extraschedular

Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1).  The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  The Board must specifically address whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242, 244 (2008).

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").

There is no allegation or evidence of exceptional factors in this appeal with regard to the Veteran's service-connected back disability, neck disability, right and left ankle disability, or left knee disability at any time during the applicable claim periods.  The symptoms associated with these disabilities are all contemplated by the appropriate rating criteria as set forth above.  Thus, referral for consideration of an extraschedular evaluation is not warranted.  38 C.F.R. § 3.321(b)(1).

II. TDIU

A TDIU is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a).  VA will grant entitlement to a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).

The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  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).

The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993).  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).

The Veteran is service-connected for the following disabilities: right total knee arthroplasty, rated 30 percent disabling; left total knee arthroplasty, rated 30 percent disabling; a right shoulder strain, rated 20 percent disabling; a cervical strain, rated 10 percent disabling; a thoracolumbar strain, rated 10 percent disabling; left ankle strain and weakness, rated 10 percent disabling; right ankle degenerative joint disease, rated 10 percent disabling; and residuals of a fracture of the right ring finger, rated noncompensable.  His combined disability rating is 80 percent.  The Veteran, therefore, meets the percentage requirements for a TDIU.  See Id.

The remaining question is whether the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him.

VA treatment records dated from December 2004 to March 2011,VA examination reports dated in December 1968, January 1974, December 1977, December 2000, February 2005, and April 2007, a September 2012 "Veteran's Application for Increased Compensation Based on Unemployability" form (VA Form 21-8940), and the Veteran's testimony during the October 2010 hearing reveal that he has a high school equivalency diploma and that he was employed for various periods following service as a spot welder, mechanic, factory worker, salesman, mail handler, clerk, and store manager at various stores.  He experienced memory and concentration problems at work in that he had a difficult time keeping track of tasks that he had to complete, did not return calls, would forget the combinations to locks, and would forget employees' names.  He retired sometime between 2003 and 2005 due to disability and he has reported various reasons for his retirement, including memory problems, cervical spine pain, low back pain, right shoulder pain, bilateral knee pain, and left ankle pain.  He was granted SSA disability benefits on the basis of organic mental disorders and affective disorders.

A December 2004 VA mental health individual treatment note includes an opinion that the Veteran was quite disorganized and dysfunctional and that it was the treatment provider's opinion that the Veteran "could not function in any gainful employment."   Also, a January 2007 letter from a VA staff psychiatrist reported that the Veteran's "duration of disability [was] permanent and total."  The psychiatrist provided a diagnosis code of "692.9."

The reports of VA examinations conducted in January 2013 include opinions that the Veteran's service-connected ankle, knee, back, neck, and shoulder disabilities should not preclude light duty or sedentary employment, but that strenuous physical employment was limited.  There were no further explanations or rationales provided for these opinions.

In an October 2013 statement, C. Wood, PhD, CRC, CDMS explained that he reviewed the Veteran's entire claims file and conducted two vocational assessment interviews and that his opinions were based solely on the Veteran's service-connected disabilities.  Although part of Dr. Wood's statement appears to be missing, it is apparent that he concluded that it was likely ("at least as likely as not") that the Veteran's service-connected disabilities had rendered him unable to obtain and maintain a substantially gainful occupation dating back to when he left employment in 2004.  Dr. Wood explained that the medical evidence and findings regarding the symptoms of the Veteran's service-connected disabilities, and in particular his impairments in standing and ambulating, in combination with consideration of his self-reports concerning pain and lack of focus, were the basis for his opinion concerning the Veteran's lack of functional capacity at work.  Concerning his work and educational history, the Veteran had been able to work for a period of time in the past.  However, his symptoms and limitations (as identified by the more recent examinations) had caught up with him, and considering his recent and relevant VA examinations, his self-reports, his lack of any recent or relevant work that he could still perform, and his medical records taken as a whole, there was "no evidence to establish a functional basis that would allow him to obtain and maintain substantially gainful employment, [(including)] sedentary unskilled employment.

Dr. Woods further explained that even the sedentary level of exertion, as defined by the U.S. Department of Labor, requires the ability to stand and walk for at least two hours a day.  Overall, his opinion was based on his education, training, and experience and an examination of the available evidence, and his opinion was expressed within a reasonable degree of vocational certainty.

The January 2013 opinions are of limited probative value because they are not accompanied by any specific explanations or rationales.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

Dr. Wood's October 2013 opinion, however, was based contact with the Veteran and a review of his medical records and reported history and it is accompanied by a specific rationale that is not inconsistent with the evidence of record.  Thus, this opinion is adequate and entitled to substantial probative weight.  See Id.

In sum, the evidence indicates that the Veteran is not engaged in any employment, that he has experienced difficulties while working due to his service-connected disabilities, and that the combination of these disabilities impairs his ability to maintain gainful employment (both physical and sedentary).  Although he has provided some varying statements as to the causes of his employment problems and the evidence indicates that some such problems are related to non service-connected psychiatric/cognitive disabilities, the January 2013 opinions and Dr. Wood's opinion indicate that the Veteran's service-connected disabilities alone are sufficient to preclude him from performing both physical and sedentary employment.  

The Board finds that the evidence is in relative equipoise  and resolving all reasonable doubt in his favor, the criteria for a TDIU have been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a).


ORDER

Entitlement to an initial rating higher than 10 percent for a thoracolumbar strain is denied.

Entitlement to an initial rating higher than 10 percent for a cervical strain is denied.

Entitlement to an initial 10 percent rating, prior to November 1, 2010, for right ankle degenerative joint disease is allowed, subject to the regulations governing the award of monetary benefits.

Entitlement to an initial rating higher than 10 percent for right ankle degenerative joint disease is denied.

Entitlement to an initial 20 percent rating, from April 20, 2007 through March 29, 2011, for a left ankle strain is granted.

Entitlement to an initial rating higher than 10 percent, prior to April 20, 2007 and since March 30, 2011, for a left ankle strain is denied.

Entitlement to a rating in excess of 30 percent, since May 1, 2011, for left total knee arthroplasty is denied.

Entitlement to a TDIU is allowed, subject to the regulations governing the award of monetary benefits.

REMAND

VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for finding a link between current disability and service is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83.  The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service.  McLendon, 20 Vet. App. at 83.

In the present case, the Veteran contends that he has residuals of a head injury that he sustained after being hit by a motor vehicle in service.  Service treatment records indicate that he was struck by a motor vehicle in March 1965 and that he was reportedly unconscious for a period of time thereafter.  He was treated for contusions of the occipital area in April 1965.  He claimed during a September 2007 VA physical therapy consultation and a July 2010 VA pulmonary sleep clinic evaluation that he had experienced memory problems and fatigue ever since the in service head injury.  Also, there are several VA treatment records (including VA neuropsychology consultation notes dated in October 2004 and March 2008 and a March 2011 VA urology consultation note) which reveal that the Veteran experienced cognitive deficits/dementia and that the etiology of such problems may have included his head injury in 1965.

In sum, there is competent evidence of current cognitive disabilities and an in service head injury.  Also, there is competent evidence of a continuity of symptomatology in the years since service and medical opinions that the current cognitive disabilities may be the result of the reported head injury in service.  This evidence suggests that the claimed disabilities may be related to service.  Thus, VA's duty to obtain an examination as to the nature and etiology of any current residual of a head injury, is triggered.  Although a VA psychiatric examination was conducted in November 2013 and the Veteran was diagnosed as having dementia not otherwise specified, an opinion was only provided as to whether that disability was caused or aggravated by the Veteran's service-connected disabilities and no opinion was given as to whether the disability was related to his in service head injury.  Also, he was not afforded a VA traumatic brain injury examination to determine whether he has any other current residuals of a head injury.  

With respect to the appeal for a higher initial rating for the service-connected right shoulder disability, a VA "shoulder and arm conditions" examination was conducted in January 2013 to assess the severity of the disability.  However, the service-connected shoulder disability is currently rated as an injury to Muscle Group IV under 38 C.F.R. § 4.73, DC 5304 (2013).  A VA muscle injury examination has not been conducted to assess the severity of the right shoulder muscle injury and the January 2013 VA examination report does not include all the findings which are necessary to properly rate a muscle injury under DC 5304.  Thus, a remand is necessary to afford the Veteran a new VA examination to assess the severity of the service-connected right shoulder disability.

VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.  38 C.F.R. § 4.2 (2013); see 38 C.F.R. § 19.9 (2013).  Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination."  Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993).

Moreover, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody.  38 C.F.R. § 3.159(c)(4).

The November 2013 VA examination report reflects that the Veteran continued to receive psychiatric treatment.  The most recent VA treatment records in the claims file and among the Veteran's paperless records in the Virtual VA system are from the VA Medical Center in Gainesville, Florida (VAMC Gainesville) and the VA Medical Center in Cincinnati, Ohio (VAMC Cincinnati) and are dated to August 2013 and June 2011, respectively.  

Thus, it appears that there may be additional VA treatment records that have not yet been obtained.  VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992).

Also, a June 2010 addendum to a February 2010 VA neuropsychology consultation note reveals that the Veteran received psychiatric treatment at Jacksonville Psychiatry.  When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and of the need to provide a release for VA to obtain the records.  If the Veteran does not provide the release, VA must ask the Veteran to obtain the records.  38 C.F.R. § 3.159(e)(2).  These steps have not yet been taken with regard to any relevant treatment records from Jacksonville Psychiatry.  Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records.

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file all records of the Veteran's treatment for a psychiatric disability, residuals of a head injury, and a right shoulder disability from VAMC Gainesville dated from August 2013 through the present and from VAMC Cincinnati dated from June 2011 through the present; and all such relevant records from any other sufficiently identified VA facility.

All efforts to obtain these records must be documented in the claims file.  Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile.

2.  Ask the Veteran to complete an authorization for VA to obtain all records of his treatment for a psychiatric disability, residuals of a head injury, and a right shoulder disability from Jacksonville Psychiatry.  All efforts to obtain these records must be documented in the claims file.

If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA.

If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims.  All such notification must be documented in the claims file.

3.  After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA traumatic brain injury examination/psychiatric examination to determine the nature and etiology of any current residual of a traumatic brain injury, including any current psychiatric disability.  All indicated tests and studies shall be conducted. 

The claims file, including a copy of this remand and any relevant records contained in VBMS and the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review.
For each current residual of a traumatic brain injury and psychiatric disability identified (i.e. any such residual of a traumatic brain injury and any psychiatric disability diagnosed since January 2007), the examiner shall indicate whether it is at least as likely as not (50 percent probability or more) that the disability had its onset during service, had its onset in the year immediately following service (in the case of any currently diagnosed psychosis), is related to the Veteran's reported head injury in service due to being hit by a motor vehicle, or is otherwise the result of a disease or injury in service?

In formulating the above opinion, the examiner shall specifically acknowledge and comment on any residual of a head injury and psychiatric disability diagnosed since January 2007, the Veteran's reported head injury in service when he was hit by a motor vehicle, the April 1965 record of treatment for contusions of the occipital area, and the Veteran's reports of a continuity of symptomatology (e.g., memory loss and fatigue) in the years since service.  

The examiner must provide reasons for each opinion given.

4.  After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to assess the current severity of the service-connected right shoulder strain.  All indicated tests and studies shall be conducted.

The claims file, including a copy of this remand and any relevant records contained in VBMS and the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review.

The examiner must specifically identify the muscle group injury (by muscle group number), if any, that is associated with the right shoulder strain.

The examiner shall note the presence and severity of any signs and symptoms of muscle disability, such as: loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, uncertainty of movement, entrance and exit scars, intermuscular scarring, loss of deep fascia, loss of muscle substance, impairment of muscle tonus, impaired endurance, abnormal muscle swelling and hardness in contraction, X-ray evidence of minute multiple scattered foreign bodies, scar adhesion, diminished muscle excitability, muscle atrophy, adaptive contraction of an opposing muscle group, or muscle induration.

All appropriate ranges of right shoulder motion shall be reported in degrees.  The examiner shall also specify whether and to what extent there is any additional loss of right shoulder motion (stated in degrees) due to any weakened movement, excess fatigability, incoordination, flare ups, and/or pain.  In this regard, some speculation/conjecture on the examiner's part may be necessary.

The examiner shall also report the nature and severity of any ankylosis of the scapulohumeral articulation and any impairment of the humerus, clavicle, and scapula.
The examiner must provide reasons for any opinion given.

5.  If a benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case.  After the Veteran is given an opportunity to respond, the case shall be returned to the Board.

No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims.  38 C.F.R. § 3.655 (2013).  The Veteran has the right to submit additional evidence and argument on the 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).




______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs