Citation Nr: 1621349 Decision Date: 05/26/16 Archive Date: 06/08/16 DOCKET NO. 09-18 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected coronary artery disease prior to September 7, 2004 and in excess of 60 percent thereafter. 2. Entitlement to an increased disability rating in excess of 20 percent for service-connected diabetes mellitus. 3. Entitlement to a compensable disability rating for service-connected right ankle sprain. 4. Entitlement to an increased disability rating in excess of 40 percent for service-connected status post laminectomy due to low back injury. 5. Entitlement to an increased disability rating in excess of 40 percent for service-connected right foot drop. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from March 1966 to March 1968 and had additional reserve service in July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board previously remanded this matter for additional development in October 2012. The Board is satisfied that there has been substantial compliance with the remand directives set out in October 2012. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. During the initial rating period prior to September 7, 2004, coronary artery disease was manifested by an ejection fraction of 51 percent and a workload of 10 to 12 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction. 2. From September 7, 2004, coronary artery disease was manifested by left ventricular dysfunction with an ejection fraction of 60 percent, a workload of 5 to 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction and without congestive heart failure. 3. Throughout the rating period, the Veteran's diabetes mellitus has required insulin, an oral hypoglycemic agent and restricted diet; regulation of activities due to diabetes mellitus has not been demonstrated. 4. Throughout the rating period, the Veteran's right ankle sprain has been manifested by marked limitation of motion of the ankle. 5. Throughout the appeal period, status post laminectomy due to low back injury has been manifested with flexion more nearly approximating 30 degrees or less due to pain and without unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least four weeks during any 12-month period. 6. Throughout the appeal period, right foot drop has been manifested by pain, weakness, decreased sensation and absent ankle reflexes and without the presence of muscle atrophy. CONCLUSIONS OF LAW 1. Prior to September 7, 2004, the criteria for an initial evaluation in excess of 30 percent for coronary artery disease are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2015). 2. From September 7, 2004 the criteria for an initial evaluation in excess of 60 percent for coronary artery disease are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2015). 2. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2015). 3. The criteria for a 20 percent disability rating for right ankle sprain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5271 (2015). 4. The criteria for a rating in excess of 40 percent for status post laminectomy due to low back injury have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235 to 5242 (2015). 5. The criteria for a disability rating in excess of 40 percent for right foot drop have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 U.S.C.A. § 4 .124a, Diagnostic Code 8520 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, letters dated in March 2007 and September 2008 letter informed the Veteran of the evidence required to substantiate his claims and informed him of the Veteran's and VA's respective duties for obtaining evidence. The letters fulfilled the notice requirements of Dingess and Vazquez. The RO did not provide the Veteran with additional notice regarding his claim for a higher initial rating for coronary artery disease. In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. The RO issued an SOC in March 2009 that advised the Veteran of the pertinent laws and regulations and the reasons for the decision. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's claims. The service treatment records have been obtained, as well as post-service VA and private treatment records identified by the Veteran. The Veteran had VA examinations for his disabilities in December 2005, June 2009, May 2011 and December 2013. When VA undertakes to provide a VA examination or obtain a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has been afforded adequate examinations. The examiners reviewed the treatment records and medical history and conducted complete examinations which fully addressed the symptoms and manifestations of the Veteran's coronary artery disease, diabetes mellitus, right ankle sprain, low back injury and right foot drop. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). 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). The RO has obtained the relevant records with regard to the claim being decided, and has provided adequate examinations to the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the 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). Disability Ratings Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2015). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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 or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that "staged" ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Initial Rating for Coronary Artery Disease A May 2006 rating decision granted service connection for coronary artery disease. A 30 percent rating was assigned from December 2002, the date of the first medical record showing a confirmed diagnosis of coronary artery disease. A December 2010 Supplemental Statement of the Case granted a 60 percent rating for coronary artery disease from September 2004, based upon the findings of a July 2009 VA examination. Coronary artery disease is rated according to Diagnostic Code 7005. Under Diagnostic Code 7005, a 30 percent rating is assigned for documented coronary artery disease when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram or x-ray. A 60 percent rating is assigned for documented coronary artery disease resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned for documented coronary artery disease resulting in: chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. For rating diseases of the heart, one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. VA treatment records dated in December 2002 noted stable chest pain, with no recent episodes. A thallium stress test performed by a private physician in November 2004 noted 50 percent single vessel coronary artery disease. There were no changes of ischemia and no arrhythmia with exercise. A VA examination in December 2005 reflects that the Veteran reported that his heart problem began in 2001 when he presented with atypical chest pain. The examiner noted that a cardiac stress test in October 2004 showed an ejection fraction of 51 percent. The report noted that the Veteran was evaluated for chest pain in 2005, at which time myocardial infarction was ruled out. The Veteran's current complaints included chest pain on average three to seven times a week. The examiner diagnosed atherosclerotic heart disease with no critical narrowing of a single coronary artery and a current negative stress test at 10-12 METS of activity. A report of a left heart catheterization, dated in June 2008, noted an ejection fraction of 45 percent. The Veteran had a VA examination in June 2009. The examiner noted that the heart size was enlarged radiologically. The examiner indicated that left ventricular hypertrophy and arteriosclerotic complications of hypertension were present. The examiner indicated that the Veteran had 5 METS of activity, which was due to hypertension and not to diabetes. A VA examination dated in May 2011 reflects that the Veteran reported a history of numerous hospitalizations either elevated pressure or atypical chest pain. The examiner diagnosed nonobstructive heart disease. The examiner indicated that, due to the risk of subjecting the Veteran's weak heart to a stressful situation, instead of a stress test, an estimate of 8 METs was provided. A December 2013 VA examination indicated that the Veteran did not have congestive heart failure. An exercise test was not completed. The examination indicated that the Veteran reported dyspnea and angina at a level of 5 to 7 METs. At the Board hearing, the Veteran testified that he had sought emergency treatment for chest pain three or four times in the preceding year. He testified that his METs level was greater than 5 but less than 7. Upon review, the Board concludes that an initial disability rating in excess of 30 percent is not warranted prior to September 2004. The evidence during the initial rating period prior to September 2004 does not establish that coronary artery disease was manifested by congestive heart failure, a workload of greater than 3 METs but not greater than 5 METS resulting in dyspnea, fatigue, angina, dizziness, or syncope or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. The Board further finds that the criteria for a disability rating in excess of 60 percent for coronary artery disease have not been met during the initial rating period. The evidence has not established that coronary artery disease is manifested by chronic congestive heart failure or by dyspnea, fatigue, angina, dizziness or syncope with a workload of 3 METs or less. The evidence does not show left ventricular dysfunction with an ejection fracture of less than 30 percent. For the reasons set forth above, the Board concludes that there is a preponderance of the evidence against the claim for an initial rating for coronary artery disease in excess of 30 percent prior to September 7, 2004 and in excess of 60 percent thereafter. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). Increased Rating for Diabetes Mellitus A June 2002 rating decision granted service connection for diabetes mellitus. A 20 percent disability rating was assigned from May 2001. A claim for an increased rating was received in August 2004. Diabetes mellitus is rated according to Diagnostic Code 7913. A 20 percent rating is assignable for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. 38 C.F.R. § 4.119. A 40 percent rating is assignable for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Id. "Regulation of activities," is defined in Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." Id; see also 61 Fed. Reg. 20,440, 20,446 (May 7, 1996). Medical evidence is required to show that strenuous occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). The rating criteria for a 40 percent evaluation under Diagnostic Code 7913 are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); see also Middleton v. Shinseki, No. 2013-7014, 2013 WL 4105647, at *5 (Fed. Cir. Aug. 16, 2013) (if disability rating criteria are written in the conjunctive, "a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation" and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria). A 60 percent rating is assignable for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. 38 C.F.R. § 4.119. A 100 percent rating is assignable for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). Id. Note (1) following Diagnostic Code 7913 provides that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Upon VA examination in January 2004, the examiner noted that the Veteran's diabetes mellitus was previously managed with Glyburide and a diet. The Veteran reported that his diabetic control had changed in that it required more medication. The Veteran reported that he was currently on Glyburide and Metformin and was trying to follow a diet. The examiner noted that his diabetes control was satisfactory, based on fingerstick blood sugars. The Veteran denied any history of diabetic complications. The examiner diagnosed type II diabetes without sequelae. The examiner indicated that the Veteran does not have to restrict his activities to control his blood sugar. An August 2005 VA examination noted a history of diabetes mellitus since 1996. The Veteran reported that his current medications included Glyburide, Metformin and another medication that he could not remember. He reported that it was not insulin. The examiner noted that the Veteran's Chem-sticks were in the low to mid-100's. The Veteran did not have known diabetic retinopathy. The Veteran reported that he was hospitalized at the time of his diabetes diagnosis but had not been since. The VA examiner diagnosed Type 2 diabetes with no activity restrictions. Upon VA examination in May 2011, the Veteran reported that his diabetes was treated with insulin. He did not know if he was on pills for his diabetes. It was noted that his Chem-sticks were fairly poorly controlled. The Veteran reported that he had not been hospitalized for diabetes. The examiner diagnosed diabetes mellitus and erectile dysfunction, likely secondary to diabetes mellitus. A December 2013 VA examination noted that diabetes mellitus was managed with insulin and restricted diet. The Veteran reported less than two visits a month to a diabetic care provider for episodes of ketoacidosis or hypoglycemia. He denied hospitalizations for ketoacidosis or hypoglycemia in the prior 12 months. The examiner indicated that diabetes mellitus did not require regulation of activities. At the Board hearing, the Veteran testified that he takes insulin five times a day. With regard to activities, the Veteran testified that he cannot do much physically. Upon review, the Board finds that a rating in excess of 20 percent is not warranted for diabetes mellitus, type II. The evidence of record shows that the Veteran requires insulin and a restricted diet. The evidence of record does not reflect that his diabetes mellitus has required insulin, a restricted diet, and the regulation of activities. The evidence of record does not establish that the Veteran's activities are regulated. The VA examination reports and VA outpatient medical records of record do not provide any notations or findings indicating that the Veteran has been instructed to restrict his activities by avoiding strenuous occupational and recreational activities due to diabetes mellitus. The preponderance of the evidence is against a finding that the Veteran has medical evidence showing regulation of activities as defined in Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360 (2007); 38 C.F.R. § 4.120. A 40 percent disability evaluation for diabetes mellitus is not warranted because regulation of activities is not shown. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). The Veteran's service-connected diabetes mellitus includes erectile dysfunction as a complication. Erectile dysfunction is rated as non-compensable. In order for the Veteran to receive a higher 20 percent rating, DC 7522 requires physical deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b. Based on the evidence of record, the Board finds that a compensable evaluation for erectile dysfunction is not warranted. While the Veteran has loss of erectile power, the medical evidence of record neither indicates nor does the Veteran contend that he has any physical deformity of his penis. Without evidence of deformity of the penis, there is no basis for the assignment of a compensable evaluation for erectile dysfunction. The July 2009 examination noted erectile dysfunction secondary to diabetes mellitus. The examiner noted that the phallus was not deformed. The May 2011 VA examination noted numerous failed remedies for erectile dysfunction. The Veteran reported that he was unsuccessful in his attempts to obtain an erection. The examiner diagnosed erectile dysfunction, with failure on numerous remedies. The examiner did not address whether there was deformity of the penis. The December 2013 VA examination did not address erectile dysfunction. The examinations do not establish that there is physical deformity of the penis with loss of erectile power. Therefore, the criteria for a separate compensable evaluation for erectile dysfunction as a complication of diabetes mellitus are not met. Nonetheless, the Board does note that the Veteran is in receipt of special monthly compensation for loss of use of a creative organ. See 38 U.S.C.A. § 1114(k) (West 2014); 38 C.F.R. § 3.350(a) (2015). Increased Rating for Right Ankle Sprain A March 1968 rating decision granted service connection for right ankle sprain. A non-compensable rating was assigned. A claim for an increased rating was received in September 2004. Right ankle sprain is rated according to Diagnostic Code 5271. Limitation of motion of the ankles is rated according to Diagnostic Code 5271. A 10 percent rating is warranted for moderate limitation of motion. A 20 percent (maximum schedular) rating is assignable for marked limitation of motion. The rating criteria provide that normal dorsiflexion of the ankle is to 20 degrees. Normal plantar flexion is to 45 degrees. See 38 C.F.R. § 4.71, Plate II. The May 2009 and May 2011 VA examinations do not include findings regarding right ankle sprain. An April 2009 VA podiatry treatment records reflects that the Veteran was seen for follow-up of right ankle pain. The Veteran reported that his pain would worsen, depending on how he stepped. A podiatrist noted decreased range of motion of the right ankle. The Veteran had a VA examination in December 2013. The Veteran reported right ankle pain for many years. He reported that flare-ups did not impact the function of his ankle. Physical examination showed plantar flexion to 20 degrees, with no objective evidence of painful motion and dorsiflexion to 10 degrees with no objective evidence of painful motion. There was no additional loss or range of motion with repetitive use testing. The Veteran did not have pain to palpation of the ankle. The Veteran had 0/5 muscle strength of the right ankle with plantar flexion and 1/5 strength with right ankle dorsiflexion. The Veteran did not have ankylosis of the ankle. There was no history of a joint replacement or other ankle surgery. At the Board hearing, the Veteran testified that his ankle is unstable and sometimes swells up. The above evidence establishes that the Veteran's right ankle disability is manifested by ankle pain with reduced plantar flexion and dorsiflexion of the ankle. The evidence shows that the Veteran's right ankle plantar flexion and dorsiflexion are less than half of the normal range of motion for the ankle joint. The Board finds that the Veteran's disability more nearly approximates marked limitation of motion, for which a 20 percent disability rating is warranted. 38 U.S.C.A. § 4.71a, Diagnostic Code 5271. A higher rating is not assignable in the absence of ankylosis of the ankle. Increased Rating for Status Post Laminectomy A June 2002 rating decision granted service connection for residuals of a low back injury. A 40 percent rating was assigned from May 2001. A claim for an increased rating was received in September 2004. A May 2006 rating decision continued a 40 percent rating for status post laminectomies due to low back injury. The Veteran's lumbar spine disability is rated according to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. 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, the following ratings will apply: a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. There are several notes following the General Rating Formula criteria, which provide the following: First, associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome based upon Incapacitating Episodes provides that a 40 percent rating is assignable with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assignable with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). A VA treatment record dated in October 2003 reflects that the Veteran was admitted to the emergency room for intractable low back pain. He received pain medications and was discharged. The Veteran had a VA examination in January 2004. The Veteran reported that his back pain had gotten worse since 2002. He complained of continual lumbar radicular pain, which was aggravated by untoward motion. He reported that he occasionally used a cane to walk. He was able to walk one-half block. The Veteran reported some relief of his pain with antalgic medications. Physical examination of the lumbar spine revealed normal lumbar lordosis and no muscle spasm or tenderness. The Veteran had 15 degrees of anterior flexion with no pain and 5 degrees more with pain. He had 10 degrees of lateral flexion to the right and left with no pain and 5 degrees more with pain. There was 80 degrees rotation to the right and left with pain and an additional 10 degrees more with pain. There were 5 degrees of posterior extension with no pain and 5 degrees more with pain. The straight leg raising test was positive on the right. His right knee jerk was present, but he had absent ankle jerk with right foot drop. Upon VA examination in August 2005, the Veteran reported that he was recovering from recent back surgery. He reported that he was unable to work due to back pain. He reported that he was unable to walk, sit or stand for significant periods of time due to his back problems. He denied bowel or bladder impairment. On physical examination, the Veteran had forward flexion to 40 degrees, which was limited by pain and stiffness. He was able to extend to 15 degrees but was limited by pain and stiffness. His range of motion remained the same with active, passive and repetitive motion. The examiner diagnosed severe limitation of the lumbar spine secondary to multiple laminectomies and posterior spinal instrumentation. Upon VA examination in May 2011, the examiner noted a history of laminectomies in 2001 and 2005. Upon physical examination, the Veteran had forward flexion of the lumbar spine to 45 degrees, with pain at 45 degrees. He had extension to 20 degrees, with pain at 20 degrees. The Veteran had right and left lateral flexion to 20 degrees. Attempts at greater ranges of motion caused pain. There was no bowel of bladder symptomatology associated with herniated discs. The examiner noted that a fusion was performed during his last surgery, which explained the limitation of motion of the lumbar spine. The examiner indicated that the Veteran did not have additional limitation of function due to pain, weakness, fatigability, or incoordination. The Veteran had a VA examination in December 2013. The Veteran reported that his back ache was getting worse. He reported pain in his buttocks and tingling in his feet. Range of motion testing showed forward flexion to 70 degrees, with pain at 70 degrees. The Veteran had extension to 15 degrees, with pain at 15 degrees. He had right and left lateral flexion to 20 degrees each, with pain at 20 degrees. He had right and left lateral rotation to 25 degrees, with pain at 20 degrees. There was no additional limitation of motion with repetitive use testing. There was radiculopathy associated with the lumbar spine disorder. There were no other neurological abnormalities related to the lumbar spine disability. The Veteran did not have incapacitating episodes of intervertebral disc syndrome. The Veteran reported that he regularly used a wheelchair, cane and a walker. At the Board hearing, the Veteran testified that he has received infusions for back pain. The Veteran stated that he cannot stand for long periods of time and has to sit down to relieve the pressure on his back. He indicated that he uses a walker due to his back and right foot conditions. The Board finds that a rating in excess of 40 percent is not warranted for service-connected status post laminectomy due to low back injury. A higher rating is not assignable under the General Rating Formula, as the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine. A rating in excess of 40 percent is not warranted based upon incapacitating episodes, as VA examination reports indicate that the Veteran does not have incapacitating episodes of intervertebral disc syndrome. The rating criteria further provide that neurologic abnormalities are to be evaluated separately under the appropriate diagnostic code. Service connection is currently in effect for right foot drop associated with low back injury, and a separate evaluation is assigned. The Veteran has also established service connection for external cutaneous nerve of the right thigh impairment associated with his service-connected low back disability. The evidence does not show any other neurological manifestations of the Veteran's lumbar spine disability which warrant the assignment of separate ratings. Increased Rating for Right Foot Drop A May 2001 rating decision granted service connection for right foot drop. A 20 percent disability rating was assigned from May 2001. A claim for an increased rating was received in September 2004. A May 2006 rating decision granted a 40 percent rating from September 2004. Right foot drop is rated according to Diagnostic Code 8520. A 40 percent rating is assignable for moderately severe incomplete paralysis. A 60 percent rating is assignable for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is assignable for complete paralysis of the sciatic nerve, in which the foot dangles and drops and there is no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The terms "mild," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a . Upon VA examination in August 2005, the Veteran reported right foot drop following laminectomy in 2001. The Veteran reported that there had been some improvement in his right lower extremity pain, but he still had significant weakness. He required the use of Naprosyn and Vicodin for this. The examiner noted that right lower extremity foot drop was still present. Physical examination showed absent Achilles tendon reflexes on the right. The examiner diagnosed probable right foot drop secondary to L5-S1 nerve root deficit. A VA examination dated in July 2009 reflects that the Veteran reported numbness and severe drop foot in the right leg. He reported weakness in his feet and tingling in his toes bilaterally. The Veteran reported that he used a walker to walk. On physical examination, there was no muscle atrophy. The Veteran had 3/5 strength in the right lower extremity and 2/5 strength in the right ankle. Sensation to pinprick and light touch was decreased in the dorsum of the right foot. Vibration sense was absent in the toes and present in the ankles. Reflexes were decreased in the ankle and knees. The Veteran had a VA examination in May 2011. The Veteran reported that foot drop remained unchanged. He reported decreased sensation over the dorsum of his right foot extending to his lower leg. A footdrop brace was noted on the right lower extremity. No dorsiflexion was demonstrated with the right foot. There was an area of hypoesthesia involving the dorsum of the right foot extending into the distal right lower leg. The Veteran was unable to stand unassisted. The Veteran reported that his footdrop had remained unchanged. Upon VA examination in December 2013, the Veteran reported tingling in his feet, right worse than left. Muscle strength testing showed ankle plantar flexion 0/5, ankle dorsiflexion 1/5 and great toe extension 0/5. Right ankle reflexes were negative. Sensory examination showed decreased sensation of the right lower leg and ankle and the right foot and toes. The Veteran did not have muscle atrophy. The evidence in this case shows that right foot drop is manifested by right foot pain, weakness and decreased sensation. The evidence reflects that the Veteran requires assistive devices. The 2009 examination noted that the Veteran uses a footdrop brace. At the hearing, the Veteran testified that he uses a walker to stabilize himself because he trips on his right foot. Although the evidence reflects that the Veteran has severe disability due to his right foot drop, the criteria for a higher rating in excess of 40 percent requires a severe disability with marked muscle atrophy. In this case, no muscle atrophy has been shown on VA examination. As the right foot drop was not severe with marked muscle atrophy at any point during the appeal, the criteria for a higher disability rating have not been met. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). 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 the 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). 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"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board also notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. The Veteran's disability picture is contemplated by the rating schedule. The diagnostic criteria for coronary artery disease consider the Veteran's ability to perform activities resulting in dyspnea. The criteria pertaining to diabetes mellitus consider the Veteran's requirement of insulin and restricted diet. The rating criteria for the right ankle consider limitation of motion of the ankle. The rating criteria for his low back disability contemplate his limitation of motion and neurological manifestations. The criteria for right foot drop consider the severity of his nerve impairment. Thus, the assigned schedular evaluation for the service-connected coronary artery disease, lumbar spine disability, right ankle disability and right foot drop are adequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b)(1). The Veteran is in receipt of a total rating based on individual unemployability (TDIU) award throughout the claims period. Further action on a TDIU claim is not needed. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial disability rating in excess or 30 percent for coronary artery disease prior to September 7, 2004 and in excess of 60 percent thereafter is denied. A disability rating in excess of 20 percent for diabetes mellitus is denied. A 20 percent disability rating is granted for right ankle sprain, subject to regulations governing the payment of monetary benefits. A disability rating in excess of 40 percent for status post laminectomy due to low back injury is denied. A disability rating in excess of 40 percent for right foot drop is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs