Citation Nr: 1618980 Decision Date: 05/11/16 Archive Date: 05/19/16 DOCKET NO. 10-08 412A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to an initial rating higher than 10 percent for lumbar degenerative joint disease (DJD) and degenerative disc disease (DDD) for the period on appeal prior to September 3, 2013, and a rating higher than 20 percent for the period on appeal from September 3, 2013. 4. Entitlement to an initial compensable rating for bilateral pes planus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to September 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions that were issued in February 2009 and December 2010 by Department of Veterans Affairs (VA) Regional Offices (ROs) in St. Louis, Missouri, and Winston-Salem, North Carolina, respectively. Jurisdiction over these matters currently resides with the RO in Winston-Salem. In April 2012, the Veteran testified before an Acting Veterans Law Judge (AVLJ) who is no longer with the Board. Generally, all VLJs who conduct hearings must participate in making the final determination of the claims on which testimony was received. 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015). By law, appeals can only be assigned to an individual VLJ or to a panel of not less than three members. Thus, in December 2015, the Board contacted the Veteran to ask whether he desired another hearing before the Board. He waived the right to another hearing in December 2015; thus, the Board notes that any decision issued will be determined by a single judge, rather than a panel, as the situation necessitating a panel has been negated with the departure of the AVLJ. Additionally, these matters were previously before the Board and were remanded for additional development in June 2013. Pursuant to the remand's directives, the RO did the following: requested outstanding private treatment records relevant to his claim; attempted to associate with the claims file relevant VA treatment records dated in 1984 and since March 2010; provided examinations and obtained opinions as to the etiology and severity of the claimed disabilities; and readjudicated the claims on appeal. Review of the record shows substantial compliance with the remand directives, and thus, no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Further, the Board notes that although the Veteran failed to submit a timely notice of disagreement with a December 2006 rating decision in which the RO initially denied his claims for service connection for neck and bilateral knee disorders, the Board did not address whether new and material evidence is required to reopen these service connection claims in the June 2013 remand. See generally 38 C.F.R. § 3.156 (2015). The Board will therefore address the merits of these claims in the present decision. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). FINDINGS OF FACT 1. The competent evidence of record fails to show that the Veteran's current neck disorder had onset during active service, manifested within one year of his separation from active service, or was otherwise caused by active service. 2. The competent evidence of record fails to show that the Veteran's current bilateral knee disorder had onset during active service, manifested within one year of his separation from active service, or was otherwise caused by active service. 3. For the period on appeal prior to September 3, 2013, the Veteran's lumbar DJD and DDD was productive of pain with a combined range of motion of the thoracolumbar spine of 220 degrees, but was not productive of ankylosis, forward flexion that was limited to less than 90 degrees, muscle spasm, guarding, or incapacitating episodes. 4. For the period on appeal from September 3, 2013, the Veteran's lumbar DJD and DDD has been productive of pain with forward flexion to no less than 50 degrees, but has not been productive of ankylosis or incapacitating episodes. 5. The Veteran's pes planus has been productive of no more than mild pes planus that is manifested by symptoms that are relieved by arch support. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 3. For the period on appeal prior to September 3, 2013, the criteria for a disability rating in excess of 10 percent for lumbar spine DJD and DDD are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5242, 5243 (2015). 4. For the period on appeal from September 3, 2013, the criteria for a disability rating in excess of 20 percent for lumbar spine DJD and DDD have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5242, 5243 (2015). 5. The criteria for a compensable disability rating for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper notice from VA must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Veteran's claims for increased ratings for his lumbar DJD and DDD and bilateral pes planus arise from his disagreement with the ratings assigned when he was granted service connection for those disabilities, and thus, the Board finds that his original claims have been substantiated and any defect in the notice is not prejudicial. See 38 U.S.C.A. § 5103 (West 2014); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA provided adequate notice regarding the claims for service connection in a letter dated September 2008. Pursuant to VA's duty to assist a claimant in the development of a claim, VA provided adequate examinations and obtained medical opinions in October 2010 and September 2013. 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4)(i). In addition, VA has associated the Veteran's service treatment records (STRs), VA treatment records, and obtainable private treatment records with the claims file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As noted above, the RO attempted to associate with the claims file relevant VA treatment records dated in 1984 and since March 2010. In June 2013 and July 2013, VA noted that there are no records for the year 1984 or dated after March 2010. Records dated March 2010 have been associated with the claims file. Additionally, following VA's request for records, the Veteran submitted records of his treatment by private physician Dr. T.O., and records of the Veteran's reported chiropractic treatment have also been associated with the claims file. As previously acknowledged, the Veteran was afforded a hearing before a VLJ in April 2012, during which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ enumerated the issues on appeal, and the VLJ and the Veteran's representative solicited information regarding the elements of the claims that were lacking to substantiate the Veteran's claims for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. In summary, the Board finds that no further notice or assistance to the Veteran is required for a fair adjudication of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection Claims Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted through the application of statutory presumptions for chronic conditions, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2015); see also 38 U.S.C.A. §§ 1101(3) (West 2014). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C.A. §§ 1112(a)(1), 1137 (West 2014); 38 C.F.R. § 3.307(a)(3) (2015). The application of these presumptions operate to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Generally, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). A. Neck Disorder During his April 2012 Board hearing, the Veteran testified that he injured his neck during in-service airborne training. More specifically, he testified that when he landed incorrectly during training and landed on his hands, the impact of the landing "would just jar [his] back [and] go all the way up to [his] neck." He testified that it worsened over time and that he sought treatment for this problem in 1984, within one year of his separation from active service. His STRs include an August 1982 note that documents his report that he was able to touch his chin to his chest with slight pain, but could not move his head from left to right without pain and it hurt to swallow. Notably, there were no findings of a musculoskeletal condition concerning the Veteran's neck or cervical spine. The reviewing clinician noted a diagnosis of acute tonsillitis and probable strep throat. In addition, the Veteran's August 1983 separation examination report indicates that his "head, face, neck, and scalp" were normal. His postservice treatment records include a VA treatment record dated November 1983 that documents a negative cervical spine X-ray. Thereafter, a May 2006 Medical Examination Report for Commercial Driver Fitness Determination, which was completed by Dr. T.O. and which documents the Veteran's reported health history, indicates that he denied having a "spinal injury or disease." Further, after reviewing the Veteran's body systems, Dr. T.O. indicated that the Veteran's "spine, other musculoskeletal" were normal at that time. Additional private treatment records dated March 2010 document the Veteran's report that he was in a motor vehicle accident four years prior (in 2006) and had neck/back discomfort that had onset at that time. The Veteran also reported that his neck did not bother him until three years later (in 2009). In October 2010, VA provided an examination during which the Veteran reported that his neck became stiff and painful when he began paratrooper training during service. After documenting a finding of cervical spine DJD/DDD, the examiner opined that it is less likely as not that this condition was caused by or permanently aggravated by military service. The examiner noted the following in support of this conclusion: there is no evidence of a neck condition during military service; there is one complaint of neck pain during the Veteran's immediate postservice years, but X-rays showed nothing; and there is no evidence of chronicity of a neck condition in proximity to military service. In September 2013, a VA examiner endorsed that it is less likely than not that the Veteran's claimed neck disorder was incurred in or caused by the claimed in-service injury, event, or illness. The examiner acknowledged the Veteran's in-service airborne and jump training and noted the following: the STRs are negative for sick call visits for neck pain or treatment of a neck condition, there are no VA treatment records that document treatment for a neck condition in 1984 as reported, the May 2006 medical examination report that was completed by Dr. T.O. indicates that the Veteran did not have a spinal injury or disease nor chronic back pain at that time, the Veteran was first treated for neck pain by Dr. T.O. in June 2009, excused absence notes from Dr. T.O. that are dated from 2000 are not significant for a neck condition, and a March 2010 treatment record that documents the Veteran's first visit with a private chiropractor indicates that the Veteran was in a motor vehicle accident in 2006 and that his neck pain had onset in 2009. The examiner concluded therefore that there is no evidence of chronicity of a neck condition in proximity to military service. Although the Veteran completed at least sixteen jumps during service, there is no medical evidence to link his current neck condition with his paratrooper activity when on active duty. At the outset, the Board is cognizant of the Veteran's assertions that he has a neck disorder that had its onset in service. The Veteran's statements are not credible, however. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) ("the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted"). The STRs affirmatively do not show treatment for a neck disorder or a diagnosis of a neck disorder. As noted above, the Veteran's neck was normal during his August 1983 separation examination, his spine was normal and he denied having a spinal injury or disease upon evaluation by Dr. T.O. in May 2006, and March 2010 private treatment records document his report that his neck symptoms had onset following a motor vehicle accident in 2006. Overall, the Board assigns little probative value to the Veteran's current reports regarding the initial onset of a neck disorder because such statements are inconsistent with what is shown by the totality of the evidence of record. See id.; see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (recognizing that the Board may assign more probative value to a history reported for treatment purposes than to subsequent statements made for compensation purposes). Further, although the Veteran has asserted that there is a causal relationship between his service and his current neck disorder, the Board finds that he is not competent to provide evidence pertaining to complex medical issues such as the etiology of his condition. Jandreau, 492 F.3d at 1377; Davidson, 581 F.3d at 1316 (although non-expert opinions regarding nexus are not to be categorically rejected, a layperson's competence to provide a nexus opinion depends on the facts of the particular case). Whether a neck disorder that manifested many years after service, such as in this case, is due to service is a complex question that is not answerable by personal observation alone or by the application of knowledge within the realm of a lay person. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau, 492 F.3d at n.4. Thus, the Board finds that the October 2010 and September 2013 medical opinions constitute the only competent statements of record that address the etiology of the Veteran's current neck disorder. Based on the foregoing, the Board finds that the competent evidence of record fails to show that there is a nexus between the Veteran's period of service and his current neck disorder, and direct service connection cannot be granted. The Veteran also cannot avail himself of the presumption concerning chronic diseases, as arthritis was not shown during his active service or within one year of active service. In sum, the preponderance of the evidence is against finding that the Veteran has a neck disorder that had onset during active service, manifested within one year of his separation from active service, or is otherwise related to his active service, to include his in-service airborne training. There is no doubt to be resolved as to this issue; thus, the appeal must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Bilateral Knee Disorder Here, during his April 2012 Board hearing, the Veteran testified that he injured his knees during service in 1980 during airborne training when he participated in jumps while wearing 110 to 140 pounds of equipment. He testified that he felt a "slight injury," his pain worsened over time, and he was treated at sick call for knee problems on eight occasions. Further, he testified that he first sought postservice treatment for his knees at in 1984. Generally, the Veteran's STRs are negative for complaints, reports, or a diagnosis of a knee condition, and his August 1983 separation examination report indicates that the Veteran's lower extremities were normal at that time. In addition, the August 1983 examination report shows that the Veteran's general health was evaluated using a "PULHES" profile. "The 'P' stands for 'physical capacity or stamina'; the 'U' stands for 'upper extremities'; the 'L' stands for 'lower extremities'; the 'H' stands for 'hearing and ear'; the 'E' stands for 'eyes'; and the 'S' stands for 'psychiatric.' Para. 9-3(b)(1)-(6), Army Regulation (AR) 40-501, Change 35 (Feb. 9, 1987)." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The "PULHES" profile reflects the overall physical and psychiatric condition of the examinee on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect that is below the level of medical fitness for retention in the military service). See generally id. The number "1" appears in every category in the August 1983 examination report. Private treatment records dated September 2004 document a finding of left knee DJD. The May 2006 Medical Examination Report for Commercial Driver Fitness Determination shows that the Veteran denied having a "missing or impaired hand, arm, foot, leg, finger, toe." Further, after reviewing the Veteran's body systems, Dr. T.O. indicated that the Veteran's extremities were normal. In October 2010, a VA examiner noted the Veteran's report that he has a bilateral knee disorder that had onset during service in 1982 and has experienced a "crunching" sensation in his knees since that time. The examiner noted that the Veteran had bumps consistent with Osgood-Schlatter's Disease, bilaterally, and had subpatellar tenderness in the right knee. An October 2010 X-ray shows that the Veteran was negative for osseous abnormality, displaced fracture, dislocation, abnormal periarticular soft tissue calcifications, or substantial changes of erosive or degenerative arthritis. Based on a contemporaneous physical examination and review of the Veteran's medical history, the examiner diagnosed him with bilateral knee strain. The examiner opined that it is less likely than not that the Veteran's current bilateral knee strain was caused by or permanently aggravated by military service because there is no evidence of a knee condition during service or in proximity to service. In September 2013, a VA examiner documented a diagnosis of DJD of the bilateral knees. The examiner endorsed that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this proposition, the examiner acknowledged the Veteran's in-service airborne and jump training, reported that the STRs are negative for complaints of a knee condition, reported that there are no VA treatment records for the year 1984, and postservice treatment records that date from 2000 are not significant for a bilateral knee condition. The examiner concluded therefore that there is no evidence of treatment for a bilateral knee condition while on activity duty nor is there evidence of chronicity of treatment for a bilateral knee condition in proximity to military service. Notably, the first documented evidence of treatment for left knee DJD was in September 2004, which was twenty-one years after the Veteran was discharged from service. Again, although the Veteran completed at least sixteen jumps during service, there is no medical evidence to link his current bilateral knee condition with his paratrooper activity when on active duty. Overall, the Veteran's DJD is more likely related to the aging process than his military service, as the condition is "mild" and had it been from his military service, one would expect it to be moderate to severe. The Board is cognizant of the Veteran's assertions that he has a bilateral knee disorder that had its onset in service. His statements are not credible; however, because the STRs do not show treatment for or a diagnosis of a knee disorder and he demonstrated a high level of fitness with regard to his physical capacity and lower extremities during his August 1983 separation examination. In addition, although the Veteran reported being treated at a VA facility for a knee problem in 1984, within one year of his separation from service, that facility reported that there are no records that show that he was treated during that time period. Thus, the Board assigns little probative value to the Veteran's current reports regarding the initial onset of a knee disorder because such statements are inconsistent with what is shown by the totality of the evidence of record. Further, because the Veteran is not competent to provide evidence pertaining to complex medical issues such as the etiology of the claimed condition, the October 2010 and September 2013 medical opinions are the only competent statements of record that address the etiology of the Veteran's current bilateral knee disorder.. Jandreau, 492 F.3d at 1377; Davidson, 581 F.3d at 1316. Based on the foregoing, the Board finds that the evidence of record fails to show that there is a nexus between the Veteran's period of service and his current bilateral knee disorder, and direct service connection cannot be granted. The Veteran also cannot avail himself of the presumption concerning chronic diseases, as arthritis was not shown during his active service or within one year of active service. In sum, the preponderance of the evidence is against finding that the Veteran has a bilateral knee disorder that had onset during active service, manifested within one year of his separation from active service, or is otherwise related to his active service, to include his in-service airborne training. There is no doubt to be resolved as to this issue; thus, the appeal must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. III. Increased Ratings Claims By way of background, the RO granted service connection for lumbar DJD and DDD and bilateral pes planus in December 2010. The RO assigned a disability rating of 10 percent for lumbar DJD and DDD and a noncompensable rating for bilateral pes planus, effective July 13, 2006. Thereafter, in January 2011, the Veteran submitted a notice of disagreement with the initial ratings assigned. In September 2013, the RO increased the Veteran's disability rating for lumbar DJD and DDD to 20 percent, effective September 3, 2013. Thus, the following issues are currently before the Board: (1) entitlement to an initial rating higher than 10 percent for lumbar DJD and DDD for the period on appeal prior to September 3, 2013; (2) entitlement to a rating higher than 20 percent for lumbar DJD and DDD for the period on appeal from September 3, 2013; and (3) entitlement to an initial compensable rating for bilateral pes planus. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2015). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2015); see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7 (2015). Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2015). The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14 (2015). Thus, separate ratings under different diagnostic codes are only permitted if, for example, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). As per 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is to be evaluated on the basis of limitation of motion as per the diagnostic codes for the specific joint or joints. Id. If the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating can be assigned where there is x-ray evidence of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating can be assigned if such involvement includes occasional incapacitating episodes. Id. Note (1) under Diagnostic Code 5003 provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. For the purpose of rating disability due to arthritis, the shoulder and knee are considered major joints. 38 C.F.R. § 4.45(f). Arthritis due to trauma is rated as degenerative arthritis. See 38 U.S.C.A. § 4.71a, Diagnostic Code 5010. A. Lumbar DJD and DDD The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71a, which provides that spine disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The schedular criteria for rating disabilities of the spine provides that separate neurologic and orthopedic manifestations of the disability are to be assigned ratings under the respective criteria, unless IVDS is based on incapacitating episodes. For VA compensation purposes, 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. 38 C.F.R. § 4.71a, General Formula, Note (2). 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. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. The General Formula for rating a disability of the spine provides in pertinent part: with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine; a 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and a 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more the height. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, associated neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under the appropriate DCs. Id. at Note (1). The IVDS Formula provides in pertinent part: with incapacitating episodes having a total during of at least 6 weeks during the past 12 months, assignment of a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, assignment of a 40 percent evaluation is warranted; with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, assignment of a 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, assignment of a 10 percent evaluation is warranted. 38 C.F.R. § 4.71a, IVDS Formula. For VA rating purposes, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). Here, VA treatment records dated March 2010 document low back pain with muscle tightness and pain that the Veteran rated as a "5" out of "10." He denied having paresthesias, weakness, and bowel and bladder incontinence, and the reporting clinician indicated that the Veteran had "good" range of motion. Private treatment records dated March 2010 indicate that the Veteran was negative for paresthesias, radicular pain, guarded motion, and kyphosis at that time. An October 2010 VA examination report documents a diagnosis of lumbar DJD/DDD and a history of stiffness, spasms, and a constant moderate to severe aching pain in the lumbar area. This pain does not radiate and the Veteran does not experience flare-ups or incapacitating episodes of spine disease. The examiner reported that the Veteran does not have a history of hospitalization or surgery; trauma to the spine; neoplasm; urinary incontinence, urgency, retention requiring catheterization, or frequency; nocturia; fecal incontinence; obstipation; erectile dysfunction; numbness; paresthesias; leg or foot weakness; falls; unsteadiness; fatigue; decreased motion; or weakness. The Veteran reported using corrective shoes and canes, and he reported that he is able to walk 20 yards prior to resting. Physical examination revealed normal posture, symmetry in appearance, normal muscle tone, and tenderness that was not severe enough to produce abnormal gait or abnormal spinal contour. More specifically, the Veteran was negative for abnormal spinal curvature, to include gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, reverse lordosis, and ankylosis. He was also negative for spasm, atrophy, and guarding. During his sensory examination, the Veteran reported absence of sensation for light touch, pain, and vibration with regard to his upper extremities and left lower extremity. He reported having an absence of sensation of the entire right lower extremity. Notably, the examiner indicated that the Veteran demonstrated regional sensory loss of unknown etiology and "without other findings to support this extent of loss, [the] sensory exam[ination] results are unreliable." The following range of motion values were documented: flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 25 degrees, right lateral flexion to 20 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 25 degrees. There was objective evidence of pain on active range of motion. He demonstrated objective evidence of pain following repetitive motion, but there were was no additional limitation after three repetitions. Notably, the examiner indicated that although the Veteran's range of motion was reduced, this reduced range of motion was not "normal" for the Veteran due to other factors not related to the disability that was examined. Imaging showed mild lower lumbar DDD. The examiner reported that the Veteran was employed as a full-time truck driver, and he missed 100 days of work to attend physician visits during the previous twelve-month period. Notably, however, the Veteran testified during his April 2012 Board hearing that he misses work four to five times per month due to his back condition, which is significantly less than what was reported during the October 2010 examination. The October 2010 examiner concluded that the Veteran's lumbar spine condition has significant effects on his usual occupation, noting the Veteran's increased absenteeism, problems with lifting and carrying, and need to take frequent breaks to stretch and ease his back pain. The examiner indicated that this disability has a moderate effect on the Veteran's ability to perform chores, shop, and exercise; a mild effect on recreating and traveling; and no effect on feeding, bathing, dressing, toileting, and grooming. With regard to potential neurological manifestations of his lumbar spine disability, the Veteran testified during his April 2012 Board hearing that he experiences pain on a daily basis and endorsed that he experienced pain that radiates from his back into his legs, and sometimes, his legs go numb from the back down. Further, records of the Veteran's August 2013 treatment by Dr. T.O. document increased urinary frequency, nocturia, and dysuria, but the physician noted that the Veteran was negative for musculoskeletal and neurological symptoms at that time. During a September 2013 examination, the Veteran reported having flare-ups that impact the function of his back and are productive of stiffness and pain in his lower back and an inability to move. The examiner documented the following ranges of motion: forward flexion to 70 degrees with objective evidence of painful motion at 70 degrees; extension to 20 degrees with objective evidence of painful motion at 20 degrees; right lateral flexion to 20 degrees with objective evidence of painful motion at 20 degrees; right lateral rotation to 20 degrees with objective evidence of painful motion at 20 degrees; left lateral flexion to 20 degrees with objective evidence of painful motion at 20 degrees; and left lateral rotation to 20 degrees with objective evidence of painful motion at 20 degrees. The examiner reported that range of motion is limited due to subjective complaints of pain, with exaggerated and extreme resistance to movement. Further, the examiner reported that the Veteran had very limited range of motion while being observed by the examiner, and his movements were much less restrained when he was unaware of being observed. The examiner reported the noted measurements cannot be considered a reliable measure of the Veteran's current range of motion. Following repetitive-use testing, the Veteran demonstrated forward flexion to 60 degrees; extension to 15 degrees; lateral flexion to 15 degrees, bilaterally; and lateral rotation to 20 degrees, bilaterally. Overall, he demonstrated additional limitation in range of motion following repetitive-use testing and demonstrated less movement than normal, incoordination, impaired ability to execute skilled movements smoothly, and pain on movement. Additionally, the examiner reported that it is more likely than not that the Veteran would experience at least a 10-degree change in range of motion during a significant flare-up or when the lumbar spine is used repeatedly over time. The Veteran was negative for localized tenderness or pain to palpation for joints and/or soft tissue, guarding, muscle spasm, abnormal muscle strength, muscle atrophy, abnormal reflexes, an abnormal sensory examination, radicular pain, other signs or symptoms of radiculopathy, or neurologic abnormalities related to his lumbar spine disability. The examiner endorsed that the Veteran has IVDS, but indicated that the Veteran has not had any incapacitating episodes over the previous twelve-month period. Further, the examiner reported that the Veteran makes regular use of a back brace that he uses at work and when performing outdoor tasks at home. The Veteran reported that he was employed and stated that he feels pulling and strain in his lower back when he unloads his truck at work. After reviewing all of the clinical evidence and subjective complaints, the Board finds that the record is negative for evidence of incapacitating episodes, and thus, the Veteran's lumbar spine disability must be evaluated under the General Formula. Under the General Formula, the Veteran's disability does not approximate a rating higher than 10 percent during the period on appeal prior to September 3, 2013, because the Veteran's disability was productive of no more than painful motion and a combined range of motion of the thoracolumbar spine to 220 degrees or greater after accounting for pain on movement. During that period, the Veteran demonstrated forward flexion to 90 degrees, and his lumbar spine disability was not productive of ankylosis, muscle spasm, or guarding. With regard to the period on appeal from September 3, 2013, the Board finds that a rating higher than 20 percent is not warranted. During his most recent examination, which was conducted on September 3, 2013, the Veteran demonstrated forward flexion to 60 degrees, which the September 2013 examiner reported would be further reduced by 10 degrees during a significant flare-up of when the lumbar spine is used repeatedly over a period of time. Overall, the Veteran did not demonstrate forward flexion to 30 degrees or less, which is required in order to warrant a higher rating. Additionally, ankylosis was not shown. Thus, the Board finds that a rating in excess of 20 percent is not warranted for the period from September 3, 2013. Further, the Board finds that because the Veteran has had a compensable rating for his lumbar spine disability for the entire period on appeal, he has been compensated appropriately for his painful motion and an additional rating is neither warranted under 38 C.F.R. § 4.59 and 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010, nor is it permitted under 38 C.F.R. § 4.14. See Burton v. Shinseki, 25 Vet. App. 1 (2011). As noted previously, the General Formula also directs the Board to evaluate any associated objective neurological abnormalities separately under an appropriate DC. See 38 C.F.R. § 4.71a, Note (1). Here, the competent evidence of record fails to show that the Veteran has neurological abnormalities associated with his lumbar spine disability. March 2010 VA treatment records indicate that he denied having paresthesias, weakness, or bowel and bladder incontinence; March 2010 private treatment records indicate that the Veteran was negative for paresthesias and radicular pain; records of the Veteran's August 2013 treatment by Dr. T.O. indicate that the Veteran was negative for neurological symptoms; and the September 2013 VA examination report indicates that the Veteran was negative for radicular pain, other signs or symptoms of radiculopathy, and neurologic abnormalities related to his lumbar spine disability. Although records dated August 2003 and October 2003 document a finding of sciatica with radiculopathy, radicular symptoms were not observed during the period on appeal. In so finding, the Board finds it highly probative that the October 2010 examiner noted the Veteran's report of absence of sensation and concluded that his sensory examination results were unreliable. Further, the Board finds it highly probative that the examiner who conducted the subsequent September 2013 VA examination indicated that the Veteran did not demonstrate neurologic abnormalities at that time. In light of the foregoing, the Board finds that the competent evidence of record fails to show that the Veteran has a neurologic abnormality due to his service-connected lumbar spine disability. Thus, an additional rating is not warranted. By way of summary, the Board finds that the evidence shows the following: (1) a rating in excess of 10 percent for the Veteran's lumbar DJD and DDD is not warranted for the period on appeal prior to September 3, 2013; (2) a rating in excess of 20 percent for lumbar DJD and DDD is not warranted for the period from September 3, 2013; and (3) a separate rating for a neurologic abnormality is not warranted. B. Bilateral Pes Planus The Veteran's bilateral pes planus is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, which indicates that a noncompensable evaluation is warranted for mild bilateral acquired flatfoot (pes planus) disability manifested by symptoms that are relieved by built-up shoe or arch support. A 10 percent evaluation is warranted for moderate bilateral disability manifested by weight-bearing lines over or medial to the great toes, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 30 percent rating is warranted for severe bilateral disability manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. The maximum 50 percent evaluation is warranted for pronounced bilateral disability manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and where the condition is not improved by orthopedic shoes or appliances. In October 2010, VA provided an examination. The examiner documented the Veteran's report that his pes planus has gotten progressively worse since service. The examiner reported that the Veteran's response to treatment was poor at that time and that the Veteran was negative for a history of foot-related hospitalization or surgery, trauma to the foot, and foot-related neoplasm. The examiner noted pain while standing, while walking, and at rest; redness; fatigability; and lack of endurance. The Veteran did not demonstrate swelling, heat, stiffness, weakness, or other symptoms. He could only stand for ten to fifteen minutes and walk for twenty yards prior to resting. He used an assistive aid/device in the form of an orthotic insert that was fairly effective. Physical examination revealed a normal gait and there was no evidence of the following, bilaterally: painful motion, swelling, tenderness, instability, weakness, abnormal weight bearing, skin or vascular foot abnormality, malunion or nonunion of the tarsal or metatarsal bones, forefoot malalignment, midfoot malalignment, an arch present on non-weight bearing and weight bearing, pain on manipulation, varus/valgus angulation of the os calcis in relationship to the long axis of the tibia/fibula, or muscle atrophy. The examiner noted that the Veteran had mild pronation of the right foot. October 2010 X-rays revealed no osseous abnormality, bilaterally, and the non-weightbearing lateral views did not suggest pes planus. The images did not show displaced fracture, dislocation, abnormal periarticular soft tissue calcifications, or substantial changes of erosive or degenerative arthritis. However, the images did show mild Achilles calcaneal spurring, bilaterally. Based on the foregoing, the examiner diagnosed the Veteran with symptomatic bilateral pes planus, which was revealed on clinical examination. Although he reported that the Veteran was employed full-time as a truck driver, the examiner indicated that this condition had "significant effects" on the Veteran's occupation and reported that this condition has caused increased absenteeism at work. The examiner reported that this condition has had a moderate effect on daily activities such as performing chores, shopping, and exercising, but has not had any effect on bathing, dressing, toileting, grooming, or driving. During his April 2012 Board hearing, the Veteran reported that his pain causes him to walk by lifting up heels, which is productive of a long gait, pain, and bearing his weight on his forefoot, bilaterally. In September 2013, a VA examiner noted a diagnosis of bilateral pes planus and reported that the Veteran did not have degenerative or traumatic arthritis of the feet. The examiner endorsed that the Veteran has pain on use, pain accentuated on use, and decreased longitudinal arch height on weight bearing. The Veteran does not, however, have pain on manipulation of the feet and there was no indication of swelling on use, characteristic calluses, extreme tenderness of plantar surfaces, marked deformity of the foot (such as pronation and abduction), a weight-bearing line that falls over or medial to the great toe, a lower extremity deformity other than pes planus that causes alteration of the weight-bearing line, "inward" bowing of the Achilles tendon (i.e., hind foot valgus, with lateral deviation of the heel), marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation, or any other pertinent physical findings related to pes planus. The Veteran's symptoms are relieved by arch supports and the examiner endorsed that the Veteran does not use any assistive devices (other than corrective shoes or orthotic inserts) as a normal mode of locomotion, although occasional locomotion by other methods may be possible. The examiner reported that pes planus affects the Veteran's ability to work in that the pain caused by this condition slows him down and affects his job performance. Overall, the evidence shows that the Veteran's bilateral foot disability has not been productive of more than mild deformity and his symptoms are relieved by an orthotic insert or other arch support. Further, the competent evidence does not show that his weight-bearing lines are over or medial to his great toes, inward bowing of the tendo achillis, swelling on use, characteristic callosities, extreme tenderness of plantar surfaces, or marked inward displacement and severe spasm of the tendo achillis on manipulation. The Board finds, therefore, that a compensable rating is not warranted. Although the October 2010 examiner noted mild pronation of the right foot, the Board finds that this mild condition does not constitute a marked deformity, as required in order to warrant a compensable rating for this manifestation of pes planus. Additionally, the Board acknowledges the September 2013 examiner's endorsement that the Veteran has pain that is accentuated on use, but as noted previously, the Veteran has not demonstrated marked deformity, indication of swelling on use, or characteristic callosities, which are manifestations that should be shown in order to warrant a rating of 30 percent. Further, notwithstanding the Veteran's reports of pain and additional symptoms, his symptoms are relieved by arch supports. Thus, as the disability rating assigned must be one that reflects his average impairment, the Board finds that the Veteran's symptoms more nearly approximate the criteria for a noncompensable rating. Although the Board is sympathetic to the Veteran's reports of painful motion, the Board finds that a separate rating is neither warranted under 38 C.F.R. § 4.59 nor is it permitted under 38 C.F.R. § 4.14, as his symptoms are contemplated by Diagnostic Code 5276 and the assignment of an additional rating would constitute pyramiding. The Board considered the applicability of additional diagnostic codes that pertain to the foot, but the evidence does not suggest that Diagnostic Codes 5277 through 5284 are applicable in the present case. Based on the foregoing, the Board finds that a compensable rating for bilateral pes planus is not warranted. There is no doubt to be resolved as to this issue. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. C. Additional Considerations In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's lumbar spine disability and bilateral pes planus, which have been productive of symptoms such as painful motion and stiffness. These manifestations are all contemplated by the schedular rating criteria and are therefore adequate to evaluate the disability. The Board has also considered the effect of these disabilities on the Veteran's employment, as discussed below, and finds that the Veteran has not described functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluations. Rather, his symptoms are consistent with the degree of disability addressed by such evaluations. The rating criteria are therefore adequate to evaluate the disabilities and referral for consideration of an extraschedular rating is not warranted. The record also fails to show that all of the Veteran's service-connected disabilities, in the aggregate, have presented such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In so finding, the Board notes that "[g]enerally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2015). Thus, to the extent that the Veteran's service-connected disabilities have affected his ability to work, the Board finds that this manifestation of his disability is also contemplated by the schedular criteria. Further, although the examination reports of record indicate that the Veteran's service-connected disabilities have affected his ability to perform his job functions, the evidence does not show that his service-connected lumbar spine and/or bilateral foot disabilities have prevented him from securing or following substantially gainful employment, and consideration of his entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is not warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). (CONTINUED ON NEXT PAGE) ORDER Service connection for a neck disorder is denied. Service connection for a bilateral knee disorder is denied. A rating in excess of 10 percent for lumbar DJD and DDD is denied for the period on appeal prior to September 3, 2013. A rating in excess of 20 percent for lumbar DJD and DDD is denied for the period on appeal from September 3, 2013. A compensable rating for bilateral pes planus is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs