Citation Nr: 1752281 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-03 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for T-L myoligamentous strain with scoliosis (hereinafter thoracolumbar spine disability). 2. Entitlement to an initial disability rating in excess of 10 percent for right wrist strain. 3. Entitlement to an initial disability rating in excess of 10 percent for left wrist strain. 4. Entitlement to an initial disability rating in excess of 10 percent for right ankle strain. 5. Entitlement to an initial disability rating in excess of 10 percent for left ankle strain. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2008 to July 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted the Veteran service connection for a thoracolumbar spine disability (assigning a 10 percent disability rating, effective from July 24, 2012), bilateral wrist strains (assigning a 0 percent disability ratings effective from July 24, 2012), and bilateral ankle strains (assigning a 0 percent disability ratings effective from July 24, 2012). Jurisdiction has since moved to the RO in Reno, Nevada. See, e.g., March 2016 VA Form 8. In a February 2016 rating decision, the RO granted an increased rating for the thoracolumbar spine disability from 10 percent to 20 percent, effective July 24, 2012. The RO also granted increased ratings for the Veteran's bilateral wrist and ankle sprains from 0 percent to 10 percent, effective July 24, 2012. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2014, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. In May 2014, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) no longer employed by the Board. By July 2016 letter, VA informed the Veteran of his right to request another optional Board hearing. As of this date, neither the Veteran nor his representative has submitted a request for another hearing. FINDINGS OF FACT 1. The Veteran's thoracolumbar spine disability was not manifested by ankylosis (whether favorable or unfavorable), forward flexion of the thoracolumbar spine 30 degrees or less, or neurologic abnormalities. There is no evidence of intervertebral disc syndrome. 2. The Veteran's right wrist sprain was not manifested by ankylosis. 3. The Veteran's left wrist sprain was not manifested by ankylosis. 4. The Veteran's right ankle sprain was not manifested by ankylosis or marked limited motion. 5. The Veteran's left ankle sprain was not manifested by ankylosis or marked limited motion. 6. The Veteran is not rendered unemployable as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5239-5237 (2017). 2. The criteria for an initial rating in excess of 10 percent for right wrist sprain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215 (2017). 3. The criteria for an initial rating in excess of 10 percent for left wrist sprain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215 (2017). 4. The criteria for an initial rating in excess of 10 percent for right ankle sprain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 5. The criteria for an initial rating in excess of 10 percent for left ankle sprain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 6. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[A]bsent extraordinary circumstances . . . it is appropriate for the Board and the [United States Court of Appeals for Veterans Claims] to address only those procedural arguments specifically raised by the veteran . . . ." Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. The Veteran was first afforded VA examinations as to his musculoskeletal claims in October 2012. At his May 2014 Board hearing, the Veteran requested new examinations because he claimed his disabilities worsened and that he misunderstood the examiner's questions as to flare-ups. Thus, pursuant to Board remand, the Veteran was afforded new VA examinations in February 2016. In Sharp v. Shulkin, the Court held that a VA examination is inadequate when the VA examiner does not "estimate the [Veteran's] functional loss due to flares based on all the evidence of record (including the [Veteran's] lay information) or explain why [he or she] could not do so." 29 Vet. App. 26, 35 (2017). In this case, the examiner elicited relevant statements from the Veteran and estimated additional functional loss due to flare-ups and repetitive use. Therefore, the Board finds that the examinations, along with the other evidence of record, are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As noted in the Introduction, the Board last remanded the claims in September 2014. In pertinent part, the Board instructed the RO to: (1) Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103 and 5103A are fully complied with as to the issue of entitlement to a TDIU rating; (2) Ask the Veteran to identify all medical providers who have treated him for low back problems, right and left wrist problems, and right and left ankle problems since December 2013 and obtain copies of any relevant medical records which are not already in the claim file; (3) schedule the Veteran new VA examinations to assess the current severity of his service-connected thoracolumbar spine disability, bilateral wrist sprains, and bilateral ankle sprains, discussing whether it was it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation; and (4) readjudicate the claims. The AOJ provided the Veteran with the required development letter in November 2014. As stated above, the Veteran was afforded new examinations in February 2016. At those examinations, the examiners described the effects of the Veteran's service-connected disabilities upon his ordinary activity as contemplated under Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Nevertheless, the responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The RO readjudicated the claims in a March 2016 supplemental statement of the case (SSOC). Thus, the Board's prior remand instructions have been complied with for the purposes of this decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). The Veteran has not made VA aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2017). II. Initial Increased Rating Claim Here, the Veteran has averred that his service-connected disabilities warrant higher initial disability ratings. He filed a Notice of Disagreement (NOD) with the December 2012 rating decision granting him service connection for the disabilities on appeal in March 2013. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Generally, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 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 DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). 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, 42-43 (2011). Instead, the Court in Mitchell 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 (2017). 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Thoracolumbar Spine Disability Throughout the appellate period, VA rated the Veteran's lumbar spine disability under 38 C.F.R. § 4.71a, Diagnostic Codes 5239-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. If the Veteran has Intervertebral Disc Syndrome (IVDS), the Veteran may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ultimately, the Veteran's disability rating will depend on which diagnostic code results in the higher evaluation. The pertinent criteria under the General Rating Formula for Diseases and Injuries of the Spine are as follows: Unfavorable ankylosis of the entire spine - 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. 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 - 40 percent disabling. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine - 30 percent disabling. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis - 20 percent disabling. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height - 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2017). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). An incapacitating episode is defined as 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. Id. at Note (1) (2017). 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (2). VA also must evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. at Note (1). Further, VA must separately evaluate disability of the thoracolumbar and cervical spine segments. Id. at Note (6). Importantly, evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). During the appellate period, the Veteran was afforded two VA examinations to assess the severity of his thoracolumbar spine disability. See February 2016 and October 2012 VA examinations. At the October 2012 examination, the Veteran complained of back pain and occasional flare-ups on cold, rainy days or when lifting more than 50 pounds. See October 2012 VA examination. The Veteran exhibited normal range of motion as to his thoracolumbar spine except as to forward flexion. Upon examination, the Veteran's forward flexion ended at 85 degrees. However, after three repetitions, the Veteran exhibited flexion to 70 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 25 degrees. Id. Nevertheless, the Veteran showed no atrophy, ankylosis, radiculopathy, or IVDS. Almost four years later, the Veteran was afforded a new VA examination to assess the current severity of his thoracolumbar spine. At the examination, the Veteran complained of "progressively worsening symptoms" and stated that his painful back flare-ups make "daily activities difficult." See February 2016 VA examination. Range of motion testing revealed flexion to 70 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Further, when asked whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups and repeated use over a period of time, the examiner said yes. Importantly, the examiner was able to describe these limits under both conditions in degrees. Specifically, because of the enumerated factors listed, the examiner stated that the Veteran would be able to exhibit flexion to 60 degrees, extension to 30 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. See February 2016 VA examination. Nevertheless, the Veteran showed no atrophy, ankylosis, radiculopathy, or IVDS. A few days before his February 2016 VA examination, the Veteran was seen at a VA clinic for chronic back pain. See January 2016 VA treatment record. At that consultation, the Veteran stated he was exercising 3 to 4 times a week at the gym and did not take pain medication. Importantly, his lumbar flexion was limited to 40 degrees and he exhibited "otherwise mildly restricted lumbar motion with tightness." Id. Applying the facts in this case to the criteria set forth above, the Veteran is not entitled to an initial disability rating in excess of 20 percent for his thoracolumbar spine disability. As neither the Veteran's treatment providers nor VA examiners opined that the Veteran has ankylosis, whether favorable or unfavorable, the Veteran is not entitled to 50 or 100 percent disability ratings. At no point does the Veteran exhibit forward flexion of the thoracolumbar spine 30 degrees or less. As stated above, the Veteran's flexion has exceeded 30 degrees in all range of motion testing; as such, the Veteran is not entitled to a 40 percent disability rating for his service-connected thoracolumbar spine disability. Higher ratings are not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran does not have IVDS according to his latest VA examination or treatment records; further he has not been prescribed bed rest by a physician. As such, a disability rating in excess of 20 percent for the Veteran's service-connected thoracolumbar spine disability is not warranted based on Diagnostic Code 5239-5237. The Board notes that the General Rating Formula also provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). However, there is no evidence of any neurologic abnormalities or findings related to the service-connected thoracolumbar spine disability. The February 2016 VA examiner found no evidence of radicular pain, any other signs or symptoms due to radiculopathy, or any other neurologic abnormalities related to the lumbar spine such as bowel or bladder problems. Thus, the medical evidence of record does not show associated objective neurologic abnormalities of bowel and bladder impairment so that a separate neurological disability rating, as it applies to his service-connected thoracolumbar spine disability, is warranted. The Board has also considered whether higher ratings are warranted on the basis of functional loss due to pain, weakness, fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). During range of motion testing, all VA examiners determined that the Veteran could perform all movements (i.e., flexion, extension, lateral flexion, and rotation) of the thoracolumbar spine with minimal loss of range of motion on repetition. Although the evidence does show that the Veteran may experience painful motion, it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Here, the Board considered the Veteran's additional functional loss after three repetitions and flare-ups in terms of degrees; even accounting for the additional functional loss discussed by the February 2016 VA examiner, the Veteran did not exhibit forward flexion of the thoracolumbar spine 30 degrees or less. Based upon the law of the Court in Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran's symptoms have remained constant at 20 percent levels for his lumbar spine disability, staged ratings are unjustifiable. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record more closely approximates the criteria for a 20 percent rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his initial disability rating should be higher. Nevertheless, the preponderance of the evidence is against the Veteran's claim and the Board finds that the criteria for an initial disability rating in excess of 20 percent for a thoracolumbar spine disability are not met. See Gilbert, 1 Vet. App. at 55; 38 C.F.R. § 3.102. B. Bilateral Wrist Sprains The criteria for evaluating the wrist make a distinction between the major (dominant) and minor (non-dominant) extremity. Here, the record reflects that the Veteran is right handed, and, thus, his right wrist is the major extremity. Normal range of motion for the wrist is dorsiflexion (extension) to 70 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5215 provides that for limitation of motion of the wrist to less than 15 degrees of dorsiflexion or where palmar flexion is limited in line with the forearm, a 10 percent evaluation is for assignment for both the major and minor extremity. However, this Code does not provide for a rating in excess of 10 percent. Thus, the Veteran is in receipt of the maximum schedular evaluation available based upon limitation of wrist motion. Under Diagnostic Code 5214, for major extremities, unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation is 50 percent disabling, ankylosis in any other position except favorable is 40 percent disabling, and favorable ankylosis in 20 to 30 degree dorsiflexion is 30 percent disabling. For minor extremities, unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation is 40 percent disabling, ankylosis in any other position except favorable is 30 percent disabling, and favorable ankylosis in 20 to 30 degree dorsiflexion is 20 percent disabling. Moreover, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See MILLER-KEANE ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, NURSING, AND ALLIED HEALTH (7th ed. 2003), https://medical dictionary.thefreedictionary.com/ankylosis. During the appellate period, the Veteran was afforded two VA examinations to assess the severity of his bilateral wrist sprains. See February 2016 and October 2012 VA examinations. At the October 2012 examination, the Veteran complained of wrist pain and flare-ups when repetitively 50 pound objects. He exhibited normal range of motion in both wrists. See October 2012 VA examination. The examiner also determined that the Veteran did not have ankylosis in either wrist. Almost four years later, the Veteran was afforded a new VA examination to assess the current severity of his bilateral wrist sprains. At the examination, the Veteran complained of "progressively worsening symptoms" and stated that his painful wrist flare-ups make "school activities difficult such as typing." See February 2016 VA examination. Further, when asked whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups and repeated use over a period of time, the examiner said yes as to both wrists. Id. Importantly, the examiner was able to describe these limits under both conditions in degrees. Specifically, because of the enumerated factors listed, the examiner stated that the Veteran would be able to exhibit palmar flexion to 70 degrees, dorsiflexion to 60 degrees, ulnar deviation to 35 degrees, and radial deviation to 10 degrees in both wrists. See February 2016 VA examination. Nevertheless, the Veteran showed no ankylosis. In this case, the record does not reflect the Veteran has ever been diagnosed with ankylosis of either wrist. Rather, both the October 2012 and February 2016 VA examinations explicitly found he had no ankylosis. Therefore, even though the Veteran does have limitation of bilateral wrist motion, he does not have immobility and/or consolidation of this joint. Consequently, he is not entitled to a rating in excess of 10 percent under Diagnostic Code 5214. The Board has also considered whether higher ratings are warranted on the basis of functional loss due to pain, weakness, fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). Here, the Veteran's statements, combined with evidence found while examined and treated by VA show limitations of motion due to the Veteran's service-connected bilateral wrist strains. However, as in this case, if a musculoskeletal disability is currently evaluated at the highest schedular evaluation based upon limitation of motion, then a higher rating under 38 C.F.R. §§ 4.40, 4.45, and 4.59 is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 86 (1997) (concluding that remand is not appropriate when the Veteran "is already receiving the maximum disability rating available under [limitation of motion]," even if exhibiting functional loss contemplated under 38 C.F.R. §§ 4.40, 4.45, and 4.59). Based upon the law of the Court in Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran's symptoms have remained constant at 10 percent levels for his bilateral wrist strains, staged ratings are unjustifiable. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record more closely approximates the criteria for 10 percent ratings. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his initial disability ratings should be higher. Nevertheless, the preponderance of the evidence is against the Veteran's claim and the Board finds that the criteria for initial disability ratings in excess of 10 percent for bilateral wrist disabilities are not met. See Gilbert, 1 Vet. App. at 55; 38 C.F.R. § 3.102. C. Right and Left Ankle Sprains Under Diagnostic Code 5271, a 10 percent rating contemplates moderate limitation of motion of the ankle. In order to warrant a higher, 20 percent rating, marked limitation of motion is required. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. The Board notes that the words "moderate" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. Diagnostic Code 5270 pertains to ankylosis of the ankle. Under this diagnostic code, a 20 percent rating is warranted for ankylosis in plantar flexion less than 30 degrees. A 30 percent evaluation is warranted for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. A 40 percent rating is warranted for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Diagnostic Code 5273 provides the rating criteria for malunion of the os calcis or astragalus. A 10 percent disability rating is warranted for a moderate deformity, and a 20 percent disability rating is warranted for a marked deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5273. Diagnostic Code 5274 provides that a 20 percent disability rating is warranted for astragalectomy. 38 C.F.R. § 4.71a, Diagnostic Code 5274. During the appellate period, the Veteran was afforded two VA examinations to assess the severity of his bilateral wrist sprains. See February 2016 and October 2012 VA examinations. At the October 2012 examination, the Veteran complained of ankle pain. He exhibited normal range of motion in both ankles. See October 2012 VA examination. The examiner also determined that the Veteran did not have ankylosis in either ankle. Almost four years later, the Veteran was afforded a new VA examination to assess the current severity of his bilateral ankle sprains. At the examination, the Veteran complained of "progressively worsening symptoms" and stated that his painful ankle flare-ups make "movement difficult." See February 2016 VA examination. Further, when asked whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups and repeated use over a period of time, the examiner said yes as to both ankles. Id. Importantly, the examiner was able to describe these limits under both conditions in degrees. Specifically, because of the enumerated factors listed, the examiner stated that the Veteran would be able to exhibit dorsiflexion to 15 degrees and palmar flexion to 45 degrees in both ankles. See February 2016 VA examination. Nevertheless, the Veteran showed no ankylosis. In this case, the record does not reflect the Veteran has ever been diagnosed with ankylosis of either ankle. Rather, both the October 2012 and February 2016 VA examinations explicitly found he had no ankylosis. Therefore, even though the Veteran does have limitation of bilateral ankle motion, he does not have immobility and/or consolidation of this joint. Consequently, he is not entitled to a rating in excess of 10 percent under Diagnostic Code 5270. Further, the Veteran does not have "marked" limitation of motion as he exhibited full range of motion and did not experience pain on weight-bearing. Therefore, the Veteran is not entitled to a 20 percent disability rating under Diagnostic Code 5271. The Board has also considered whether higher ratings are warranted on the basis of functional loss due to pain, weakness, fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). During range of motion testing, all VA examiners determined that the Veteran could perform all movements (i.e., dorsiflexion or palmar flexion) of the bilateral wrists with minimal loss of range of motion on repetition or during flare ups. Although the evidence does show that the Veteran may experience painful motion, it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Here, the Board considered the Veteran's additional functional loss after three repetitions and flare-ups in terms of degrees; even accounting for the additional functional loss discussed by the February 2016 VA examiner, the Veteran did not have marked limitation of motion. Based upon the law of the Court in Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran's symptoms have remained constant at 10 percent levels for his bilateral ankle strains, staged ratings are unjustifiable. The Board has considered whether higher evaluations are available under other provisions of the code. However, the Veteran's bilateral ankle disabilities have not shown to involve any other factor that would warrant evaluation of the disabilities under other provisions of the rating schedule. Specifically, there is no evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy to warrant ratings under Diagnostic Codes 5272-5274. Id. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record more closely approximates the criteria for 10 percent ratings. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his initial disability ratings should be higher. Nevertheless, the preponderance of the evidence is against the Veteran's claim and the Board finds that the criteria for initial disability ratings in excess of 10 percent for bilateral ankle disabilities are not met. See Gilbert, 1 Vet. App. at 55; 38 C.F.R. § 3.102. III. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Veteran has met the threshold requirement for entitlement to a TDIU on a schedular basis. Since July 24, 2012, the Veteran has been service-connected and rated for the following disabilities: cervical anterolisthesis rated at 20 percent disabling from July 24, 2012; T-L myoligamentous strain with scoliosis rated at 20 percent disabling from July 24, 2012, left and right shoulder strains, each rated at 10 percent disabling from July 24, 2012, and 20 percent disabling from May 16, 2014; right and left wrist and ankle strains, each rated at 10 percent disabling from July 24, 2012; and dermatitis rated at 0 percent disabling from July 24, 2012. Combined, these disabilities are rated at 70 percent from July 24, 2012 and 80 percent from May 16, 2014. See 38 C.F.R. § 4.16(a) (2017). Further, VA examiners consider the Veteran's musculoskeletal disabilities as deriving from his work-related duties in service. See, e.g., February 2016 VA examination. Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran was afforded VA examinations in October 2010, February 2013, October 2014, and February 2016 to assess the functional impact of his service-connected disabilities. The Veteran first underwent a series of VA examinations in October 2012 to assess the current severity of his service-connected disabilities. In October 2012, the VA examiner determined that the Veteran exhibited no functional impact from his ankle disabilities and did not call in sick to work. See October 2012 VA examination. As to the Veteran's thoracolumbar spine disability, the examiner stated that the Veteran was limited to work that included "repetitive bending, crawling, climbing or standing activities." Id. Further, a VA examiner determined that the Veteran was limited to 50 pounds of carrying above his shoulder due to severe pain in his bilateral shoulder joints. Id. As to the Veteran's wrists, he was found to have "no problems working." Id. Another VA examiner came to a similar conclusion based on the Veteran's service-connected dermatitis. See November 2012 VA examination. In February 2013, a VA examiner determined that the Veteran's neck condition did not impact his ability to work. See February 2013 VA examination. 20 months later, a VA examiner stated that the Veteran's shoulder disabilities limited his ability to lift/carry large and heavy objects (maximum 50 pounds) and working at or above shoulder level to 5 minutes or less. See October 2014 VA examination. Further, the Veteran had limited repetitive use during pulling, pushing, sweeping, and digging. See Id. The Veteran last underwent a series of VA examinations in February 2016. As to his bilateral ankle pain, a VA examiner determined that said pain "impedes his ability for any prolonged standing and/or ambulation." See February 2016 VA examination. As to his bilateral wrist pain, a VA examiner determined that the Veteran's bilateral wrist pain "impedes his manual dexterity." Id. Further, as to the Veteran's thoracolumbar spine disability, a VA sated that the Veteran's back pain "impedes his ability for any moderate to heavy lifting, pulling, and/or pushing." Id. The Veteran did not submit a VA Form 21-8940, or Veteran's Application for Increased Compensation Based on Unemployability. However, the evidentiary record shows that by at least March 2013, the Veteran was employed full-time as a fork lift operator and may have been "doing some contract work for the military." See March 2013 VA treatment record. The Veteran has received Chapter 31 vocational rehabilitation assistance for college from VA since at least July 2015. See July 2015 VA letter. A month before his February examinations, the Veteran sought treatment for his back pain. See January 2016 VA treatment record. There, he stated he was exercising about 3 to 4 times a week at the gym. Importantly, the provider noted that the Veteran was in college for information technology and the provider reviewed the Veteran's workout routines. Id. The Board finds that the preponderance of the evidence of record demonstrates that the Veteran's service-connected disabilities are not sufficiently severe to preclude him from obtaining or maintaining substantially gainful employment. The Veteran worked as a forklift operator and currently attends college for information technology. Thus, the evidentiary record shows that given the Veteran's work experience and education, he can obtain and retain substantially gainful sedentary employment. As such, though the Veteran and the medical examiners provided ample facts to make a decision, the responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Similarly, the Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Nevertheless, the Board finds in this case that, while there is evidence of some interference with employment, a preponderance of the evidence is against finding that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The assigned disability ratings of 20 percent for cervical anterolisthesis and T-L myoligamentous strain, 10 percent for left and right shoulder strains from July 24, 2012, and 20 percent disabling from May 16, 2014, 10 percent for right and left wrist and ankle strains, and a noncomensable rating for dermatitis are themselves recognition that industrial capabilities are impaired. The ultimate question is whether a claimant is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Thus the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the claim for a TDIU. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to an initial disability rating in excess of 20 percent for a thoracolumbar spine disability is denied. Entitlement to an initial disability rating in excess of 10 percent for right wrist strain is denied. Entitlement to an initial disability rating in excess of 10 percent for left wrist strain is denied. Entitlement to an initial disability rating in excess of 10 percent for right ankle strain is denied. Entitlement to an initial disability rating in excess of 10 percent for left ankle strain is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs