Citation Nr: 18150212 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 11-08 303 DATE: November 14, 2018 ORDER Entitlement to service connection for headaches is denied. The rating reduction of the Veteran’s right ankle disability from 20 percent to 10 percent disabling, effective June 1, 2011, was not proper; therefore, the 20 percent rating is restored, effective June 1, 2011. Entitlement to an increased rating in excess of 20 percent for right ankle strain is denied. Entitlement to a total rating based on individual unemployability (TDIU) for the period prior to April 27, 2016 is granted, subject to controlling regulations governing the payment of monetary benefits. REMANDED Entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine prior to April 27, 2016 is remanded. Entitlement to an evaluation in excess of 40 percent for degenerative joint disease of the lumbar spine from April 27, 2016 is remanded. Entitlement to an evaluation in excess of 10 percent for right knee degenerative joint disease is remanded. Entitlement to an evaluation in excess of 10 percent for left knee degenerative joint disease is remanded. Entitlement to an increased rating in excess of 10 percent for left ankle strain is remanded. FINDINGS OF FACT 1. The Veteran is not shown to have (or at any time during the pendency of his claim to have had) a headache disorder. 2. In a March 2011 rating decision, the RO reduced the ratings for the Veteran’s service-connected right ankle strain from 20 percent to 10 percent effective June 1, 2011. 3. The evidence of record at the time of the March 2011 rating decision did not clearly reflect a material improvement in the Veteran’s service-connected right ankle strain that resulted in an improvement in his ability to function under the ordinary conditions of life and work. 4. Throughout the appeal period, the Veteran’s right ankle disability has been manifested by no more than marked limited motion; ankylosis of the right ankle is not shown. 5. In his April 2010 VA Form 21-8940, Application for Increased Compensation Based on Unemployability (TDIU Application), the Veteran reported he last worked full-time in April 2005 and indicated his service-connected degenerative joint disease of the lumbar spine, right and left knee disabilities, rib fracture, and left and right ankle strain prevented him from securing or following any substantially gainful occupation. 6. As a result of the Board decision to restore the 20 percent rating for the Veteran’s right ankle disability, the Veteran’s combined rating is 60 percent throughout the appeal period since receipt of his April 2010 TDIU Application until April 27, 2016, and his compensable disabilities affect a single body system (orthopedic). 7. For the period prior to April 27, 2016, the Veteran’s service-connected disabilities are of such severity as to preclude him from securing and following substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The reduction of the rating of the Veteran’s right ankle disability from 20 percent disabling to 10 percent disabling, effective June 1, 2011, was not proper; the 20 percent rating is restored. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105(e); 3.344(c); 4.1, 4.71a, Diagnostic Code (Code) 5271. 3. The criteria for an evaluation in excess of 20 percent for right ankle strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Code 5271. 4. For the period prior to April 27, 2016, the criteria for a TDIU rating have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1986 to June 1988. These matters are before the Board of Veterans’ Appeals (Board) on appeal from September 2010 (TDIU and proposed reduction of right ankle rating from 20 percent to noncompensable), August 2014 (service connection for headaches and increased ratings for lumbar spine, left ankle and knees) and March 2011 (implemented proposed reduction of right ankle disability rating to 10 percent disabling (rather than noncompensable) from June 1, 2011) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified at a Board before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were remanded for additional development in June 2016. The Board finds that there has been substantial compliance with the directives of its remand. Stegall v. West, 11 Vet. App. 268 (1998). An interim August 2017 rating decision granted an increased 40 percent rating for degenerative joint disease of the lumbar spine from April 27, 2016, the date of VA examination showing increased disability. Similarly, an interim October 2017 rating decision granted a TDIU rating from April 27, 2016, the date the Veteran met the minimum schedular requirement for TDIU during the appeal period (since the June 1, 2011 effective date of his reduced 10 percent rating for right ankle strain). As the staged increased rating does not represent the maximum rating available for the lumbar spine disability and the effective date for the grant of the TDIU rating is not from the date of receipt of his April 2010 TDIU Application, the claims are characterized to reflect that staged ratings are assigned, and that both “stages” of the ratings are on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The RO obtained additional evidence after the most recent adjudication of these claims (January 2017 statement of the case (SOC) addressing only reduction of right ankle disability rating, September 2017 supplemental SOC (SSOC) addressing all claims other than right ankle rating and October 2017 SSOC addressing all claims other than right ankle rating and TDIU), including VA treatment records. The Board finds this additional evidence is either duplicative of evidence previously considered by the RO or not pertinent to the issues decided herein. See 38 C.F.R. § 20.1304. Additional reference to the Veteran’s service connection and increased rating claims are presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s claims that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. Service Connection - Headaches Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The United States Court of Appeals for Veterans Claims (Court) has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 19 (2007). In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To establish a right to compensation for a present disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995); 38 C.F.R. § 3.310. Service connection for certain chronic diseases (including migraine headaches (as organic diseases of the nervous system)) will be presumed if they manifest to a compensable degree within one year following active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A nexus to service (for diseases listed in 38 C.F.R. § 3.309(a)) may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The Veteran claims he currently has headaches related an in-service motor vehicle accident, when he hit his head on the windshield. The Veteran’s service treatment records (STRs) include a February 1987 report of Emergency Care and Treatment which shows that he was involved in a head on collision with a Korean truck. He hit his head (forehead) on the dashboard, there was no loss of consciousness or neurologic symptoms and his forehead abrasion was cleaned and dressed. STRs show he was involved in a second motor vehicle accident in August 1987, when a van in which he was a passenger was broadsided by a bus. He was “thrown to other side of van,” denied loss of consciousness and sustained no head injury. These records are silent as to complaints of or treatment for a headache disorder. The initial post-service headache complaints are noted in a November 1991 VA Medical Certificate which shows the Veteran reported a 2 week history of headaches related to chronic low back pain. A March 1992 report of VA general medical examination notes the Veteran’s history of scalp laceration in connection with the February 1987 motor vehicle accident in service. The diagnosis was past history of motor vehicle accident, February 1987, with residual laceration of scalp, sutured, no residuals of head injury. On examination for diseases/injuries of the brain, it is noted the Veteran denied having any type of head injury (his primary problem was low back pain.) VA treatment records include a November 2010 report of sinus headaches and stuffy nose in relation to a cold and a September 2015 notation that the Veteran is prescribed allopurinal ½ tablet daily for gout and, when he has a flare, he takes ½ tablet in the morning and ½ tablet in the evening because “1 per day gives him headaches.” In November 2017, the Veteran reported a week – 10 day history of headaches when moving his head up or looking left or right. August 2014 and April 2016 VA headaches examination reports show that the Veteran does not now have and has not ever been diagnosed with a headache condition. The August 2014 examiner explained the Veteran’s “records reveal no loss of consciousness with accident and no basis to relate headaches, he relates migraine headaches to taking full dose of allopurinol.” The April 2016 examiner opined that it is less likely than not the Veteran has a headache disability that was incurred in or due to his military service, including involvement in motor vehicle accidents. The examiner explained there were no headache complaints, neurological deficits or residuals from the 1987 motor vehicle accident noted on March 1992 VA examination, treatment records include no diagnosis of headaches on current problem list and reference no medication specifically for headache treatment. The examiner further explained that the 1987 motor vehicle accident did not result in loss of consciousness or sequelae of CNS (central nervous system) symptoms, including serial treatment for headaches thereafter. Finally, the examiner opined that the Veteran’s headaches are unrelated to his service-connected disabilities, including medication prescribed to treat these disabilities because “the only reference in the available evidence to a headache condition is that of headache which occurs when [the Veteran] takes a full dose of allopurinol for gout/hyperuricemia at one time” and he is not service connected for gout or hyperuricemia for which he has been prescribed allopurinol. The Board places great probative value on these opinions as they reflect consideration of the Veteran’s reported history and pertinent medical criteria. They also contain a clear rationale for the opinion provided. There is no contrary competent medical opinion of record. Upon review of all lay and medical evidence of record, the Board finds the claim of service connection for headaches must be denied. Significantly, the Veteran has not presented any competent evidence showing that he has a current headache disability. In the absence of proof of a present disorder (and, if so, of a nexus between that disorder and the active military service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that “a veteran seeking disability benefits must establish... the existence of a disability [and] a connection between the veteran’s service and the disability.” Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To the extent that he asserts headaches due to prescribed medication, the only medication shown to cause his headaches is allopurinol, which has been prescribed for treatment of his gout/hyperuricemia, which is not service connected. In addition, to the extent he has symptoms of head pain, although he is competent to report such symptoms, the August 2014 and April 2016 VA examination reports note no functional impact on the Veteran’s ability to work and he has not presented any evidence showing that head pain symptoms result in any functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board has considered the statements of the Veteran; as a layperson, he is competent to testify regarding observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the diagnosis and probable etiology of a disorder such as headaches falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has not demonstrated or alleged expertise in determining a medical nexus. Therefore, his opinion in this matter has no probative value. To the extent that the Veteran has alleged continuity of symptomatology since service or onset of headaches within a year of his discharge from service that would qualify for presumptive service connection, there is no indication the Veteran has been diagnosed with migraine headaches, which are considered a chronic disease as an organic disease of the nervous system. As such, continuity of symptomatology and presumptive service connection for headaches as a chronic disease is not applicable. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013). Accordingly, as the preponderance of the evidence is against this claim, the benefit of the doubt rule does not apply and the appeal in this matter must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Rating Reduction - Right Ankle An April 2010 rating decision considered findings from a January 2010 VA ankle examination and increased the rating for the service-connected right ankle disability to 20 percent disabling, effective December 17, 2009, the date of receipt of the Veteran’s claim for increase. In connection with his April 2010 TDIU Application, the Veteran underwent VA general medical examination in September 2010. Based on findings of the September 2010 examination, a September 2010 rating decision proposed to reduce the right ankle rating from 20 percent to noncompensable. A March 2011 rating decision implemented the proposed reduction to the extent it reduced the right ankle disability rating from 20 percent to 10 percent disabling, effective June 1, 2011. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in rating of a service-connected disability when warranted by the evidence, but only after VA has met certain procedural and substantive requirements. Procedurally, where the reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). Here, the RO complied with the procedural safeguards regarding notice to the Veteran of the proposed rating reduction and the implementation of the reduction. See 38 C.F.R. § 3.105. Substantively, the criteria governing rating reductions for service connected disabilities is found in 38 C.F.R. § 3.344. As the rating in this case has continued at the same level for less than five years, the analysis is conducted under 38 C.F.R. § 3.344(c), which provides that reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. VA is also required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a Veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was implemented (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran’s bilateral ankle strain is evaluated under Code 5271, for limitation of motion of the ankle. Code 5271 provides for a 10 percent rating for moderate limitation of motion and a maximum 20 percent rating for marked limitation of motion. 38 C.F.R. § 4.71a. Full ankle motion includes dorsiflexion from zero to 20 degrees and plantar flexion from zero to 45 degrees. See 38 C.F.R. § 4.71, Plate II. The terms “moderate” and “marked” are not defined in the 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,” and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6. Where functional loss due to pain on motion is alleged, 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Here, the Board finds that the competent medical and lay evidence of record does not show an actual improvement in the Veteran’s right ankle disability or his ability to function under the ordinary conditions of life and work. On January 2010 VA examination on which the increased 20 percent rating was based, he reported pain, weakness, stiffness, swelling, instability, giving way, fatigability and lack of endurance. He reported flare-ups depending on activity lasting 20-30 minutes and requiring him to sit or lay down. He reported using no ambulatory aids. Right ankle range of motion was zero to 15 degrees of dorsiflexion and zero to 45 degrees of plantar flexion. Right ankle examination revealed pain, fatigue, weakness, lack of endurance and objective evidence of painful motion, effusion, weakness, tenderness and abnormal movement. The examiner noted abnormal (antalgic) gait, right lower extremity, and the Veteran could walk a maximum distance of 1-2 blocks. The September 2010 VA general medical examination upon which the reduction was based showed that the Veteran needed no assistive aids for walking. He got up somewhat slowly and, once standing, walked symmetrically in no distress and his gait was normal. On musculoskeletal examination, his right ankle range of motion was zero to 25 degrees dorsiflexion and zero to 45 degrees plantar flexion. The examiner noted no objective evidence of pain on active motion and, although there was pain on motion after 3 repetitions, there was no additional limitation of motion after repetitive motion. In his October 2010 Notice of Disagreement, the Veteran reported he experiences “continuous ankle pain.” In a subsequent October 2010 statement, the Veteran reported days when he wakes up and is “unable to stand on ankles due to pain.” VA treatment records include a December 2010 report which shows the Veteran complained of a several-month history of right ankle (and right knee) pain; his right ankle was tender and painful. The assessment was arthralgia. Subsequent December 2010 treatment records show the Veteran reported continued right ankle complaints, when the ankle was mildly tender on examination, no swelling and normal range of motion. The evidence of record subsequent to the March 2011 rating decision which implemented the reduction likewise does not show actual improvement in the right ankle disability under the ordinary conditions of life and work. VA treatment records have described the Veteran’s gait as “slow” and “weak.” See, e.g., VA treatment records dated in November 2010 and June 2012. November 2013 VA treatment records note mild right ankle tenderness and slightly painful range of motion. In a May 2014 statement, the Veteran reported his ankles stay swollen and it is “extremely difficult” to bear weight, he experiences a sharp pain when trying to stand up, the swelling and sharp pain prevent him from walking and he has to remain in a stationary position. Although an August 2014 VA examination report shows the Veteran’s right ankle is essentially asymptomatic (has normal range of motion with no functional impact), this is in contrast to the Veteran’s September 2014 statement that his ankles continue to worsen (swell and give out), he has days when he is unable to walk and requires assistance getting to the bathroom, keeps a cane by his bed and in his truck and uses the electric scooter to shop. See also, September 2015 VA Form 9, Appeal to Board of Veterans' Appeals. In addition, during his October 2015 Board hearing, the Veteran reported he continued to experience right ankle symptoms, such as swelling, for which he had recently sought VA treatment. He also reported using a cane because of ankle swelling and inability to put pressure on it (as well as because of his knee). The Veteran acknowledged VA examination findings which showed improvement; however, he noted that the examiners were not observing him when he is not on his medications and the ankle is painful and swollen. The Veteran is competent to provide testimony regarding the symptoms and functional losses he experienced, and the Board finds his reports to be credible. Layno v. Brown, 6 Vet. App. 465 (1994). An April 2016 VA ankle examination report notes the Veteran’s complaints of flare-ups, manifested by swelling, which result in functional impairment, including difficulty walking. It is also noted the examination was not being performed during a flare-up. Right ankle range of motion showed zero to 15 degrees of dorsiflexion (as noted on the January 2010 VA examination report) and zero to 30 degrees of plantar flexion (diminished by 15 degrees since the January 2010 VA examination report, which showed zero to 45 degrees of plantar flexion). A March 2017 VA ankle examination report also notes right ankle flare-ups of increased pain resulting in decreased ability to ambulate for long distances or stand for long periods of time. Right ankle range of motion was zero to 10 degrees of dorsiflexion and zero to 35 degrees of plantar flexion. There was no ankylosis, the Veteran wore a right ankle brace. After close analysis, the Board concludes the medical evidence, both at the time of March 2011 rating decision and post-reduction, does not support a finding that the Veteran’s right ankle disability had improved. On review, and considering the objective findings as well as the Veteran’s reported functional impairment, it cannot be said that the preponderance of the evidence supports a finding of improvement. Although the September 2010 examination on which the reduction was based revealed the Veteran’s range of motion was not restricted upon examination, the evidence continued to demonstrate that the Veteran experienced pain and swelling and did not show improvement in his ability to function under the ordinary conditions of life and work. Furthermore, in the March 2011 rating decision, the RO did not offer any discussion or analysis of the Veteran’s current findings with respect to the regulations pertaining to rating reduction cases, and simply applied the rating criteria to the objective findings from the September 2010 VA examination. The RO did not discuss the effect of the Veteran’s right ankle disability on his ability to function under the ordinary conditions of life and work. As noted, subsequent evidence showed continued complaints of pain and swelling and functional impairment. Accordingly, the Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s right ankle disability under the ordinary conditions of life and work at the time of the March 2011 rating reduction. As such, the reduction was not proper. The 20 percent rating for right ankle strain, under Code 5271 for limitation of motion, is restored from June 1, 2011, the effective date of the reduced 10 percent rating. Increased Rating – Right Ankle Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). As noted in the rating reduction portion of the decision above, the Veteran’s bilateral ankle strain is evaluated under Code 5271, for limitation of motion of the ankle. Code 5271 provides for a 10 percent rating for moderate limitation of motion and a maximum 20 percent rating for marked limitation of motion. 38 C.F.R. § 4.71a. Full ankle motion includes dorsiflexion from zero to 20 degrees and plantar flexion from zero to 45 degrees. See 38 C.F.R. § 4.71, Plate II. As explained above, the 20 percent rating for right ankle strain, under Code5271 for limitation of motion, is restored from June 1, 2011, the effective date of the reduced 10 percent rating. Thus, the Veteran’s right ankle strain has been assigned the maximum 20 percent rating under Code 5271 for limitation of motion throughout the appeal period. As such, further analysis under Code 5271 is not warranted. See 38 C.F.R. § 4.71a. The Board has considered whether higher evaluations are available under other provisions of the code. However, the Veteran’s right ankle disability has not been shown to involve any other factor that would warrant evaluation of the disability under other provisions of the rating schedule. Specifically, there is no evidence of ankylosis (Codes 5270 and 5272), malunion of the os calcis or astragalus (Code 5273) or astragalectomy (Code 5274). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has also considered the applicability of DeLuca v. Brown, 8 Vet. App. 202 (1995), including whether there is a basis for assigning ratings in excess of 20 percent due to additional limitation of motion resulting from pain or functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59. However, where a Veteran is in receipt of the maximum schedular rating based on limitation of motion of the ankle and a higher rating requires ankylosis, the regulations pertaining to functional impairment (38 C.F.R. §§ 4.40, 4.45, and 4.59) are not for application. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); Correia v. McDonald, 28 Vet. App. 158 (2016). Further, the Veteran has reported flare-ups that cause increased pain and functional impairment. Although Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) requires the examiner estimate the functional loss that would occur during flare-ups, as the Veteran is receiving the maximum schedular rating possible under Code 5271 and an increased rating is not warranted without a finding of ankylosis, which as noted above is not demonstrated, a VA examination or opinion that complies with Sharp is not required. Thus, the Board finds that the preponderance of the evidence is against the award of a rating in excess of 20 percent for the Veteran’s right ankle disability. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). This is true at all times during the appeal; thus, the Board need not consider staged ratings. There are no additional expressly or reasonably raised issues presented on the record. TDIU The Veteran asserts that he is entitled to a TDIU rating because his service-connected disabilities have rendered him unemployable. See, e.g., April 2010 TDIU Application. TDIU may be assigned, if 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 if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of those percentage requirements, the following will be treated as a single disability: (1) Disabilities of one or both upper extremities or one or both lower extremities, including the bilateral factor, (2) Disabilities resulting from common etiology or single accident, (3) Disabilities affecting a single body system, such as orthopedic, digestive, respiratory, cardiovascular-renal, or neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). At all times during the appellate period, the Veteran met the schedular eligibility requirements because his orthopedic disabilities are considered a single disability for the purposes of 38 C.F.R. § 4.16(a). The central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). As a result of the decision to restore the 20 percent rating for the right ankle disability, the Veteran’s combined rating is 60 percent, throughout the appeal period since receipt of his April 16, 2010 TDIU Application until April 27, 2016, the effective date of the grant of a TDIU rating (and the increased 40 percent rating for his service connected low back disorder). Specifically, during the appeal period prior to April 27, 2016, service connection was in effect for degenerative joint disease of the lumbar spine and right ankle strain, each rated 20 percent; degenerative joint disease of the right and left knee and left ankle strain, each rated 10 percent; and residuals of left eighth rib fracture and bilateral eye cataracts, each rated noncompensable. With the musculoskeletal disabilities combining to a total of at least 60 percent using the bilateral factor. Therefore, the Veteran meets the minimum schedular requirements of 38 C.F.R. § 4.16(a) for eligibility to individual unemployability throughout the appeal period prior to April 27, 2016. On the April 2010 TDIU application, the Veteran reported last working on a full-time basis in April 2005. He listed employment history as chief technician, direct care, service manager and tire installation and sales. He completed 4 years of high school and has no additional education or training. Notably, during his October 2015 Board hearing, the Veteran testified that he has completed 28 college credits and is one or two classes short of earning an associate’s degree in general education. A July 2010 response to a request for employment information shows that the Veteran last worked for this employer in July 2004 and his employment was terminated for “personal reasons.” In an October 2010 statement, the Veteran clarified that the “personal reasons” for leaving his employment was he “was hurting.” He “would have to walk the hall for an hour, twice a night and [his] knees and ankles would swell and hurt to the point [he] couldn’t get any rest.” A September 2010 report of VA general medical examination includes the opinion that the Veteran is “limited to sedentary work, sedentary carrying, light work, and light lifting and carrying as defined by the Dictionary of Occupational titles.” The examiner noted that “[t]his would include only occasional bending, with lifting and carrying primarily at or above knee height. No repetitive stooping, squatting, kneeling, or carrying.” The examiner further noted that the Veteran was scheduled for procedures on his kidney stone and gallbladder, which were not service-connected and which would impair his employment for the foreseeable future. A May 2011 addendum opinion by a different physician agreed with the opinion of the September 2010 examiner. The Veteran has reported experiencing continuous back, knee and ankle pain and instability and having days when he is unable to bend, stand and/or walk. See, e.g., October 2010 statement; VA Form 9, Appeal to Board of Veterans’ Appeals received in March 2011, March 2015, April 2015 and May 2015; March 2011 statement from his wife (who is also a nurse); May 2014 and September 2014 statements. In addition, VA treatment records note the Veteran’s complaints of knee and ankle pain and instability (“popping out of joint”). See, e.g., VA treatment records dated in December 2010, On September 2012 VA back conditions examination, the Veteran reported flare-ups of back pain (3 in the last 12 months) result in “difficulty with any mobility for about 1 week.” An August 2014 VA examination report notes that the Veteran’s knee and lower leg conditions do not impact his ability to work. During his October 2015 hearing, the Veteran recalled the testimony of a job specialist during a hearing in connection with his claim for benefits from the Social Security Administration (SSA) who stated that he would not be hired because he would miss too many days of work due to his disabilities. Records from SSA show the Veteran was found disabled since March 2007 due to disorders of the back (discogenic and degenerative) and osteoarthritis and allied disorders. An April 2016 VA examination report (on which the RO based the grant of TDIU from April 27, 2016) includes the opinion that the “Veteran would be limited to sedentary or light physical work due to the combination of sc (service-connected) disabilities.” Although the examiner noted that the Veteran’s “varied work experience and education make him eligible for a variety of jobs,” the examiner provided no opinion or discussion as to which jobs the Veteran would be eligible for. Based on a review of the evidence, the Board concludes that an award of a TDIU rating is warranted throughout the appeal period prior to April 27, 2016. When considering the Veteran’s employment and educational background, as well as the medical evidence of record (noting as early as September 2010 that the Veteran’s employment was limited to sedentary work), in addition to affording him the benefit-of-the-doubt, the Board finds that the evidence supports a grant of a TDIU for the appeal period prior to April 27, 2016. Also noteworthy is the fact that SSA has recognized the Veteran’s service-connected orthopedic disabilities (back and osteoarthritis and allied disorders) in awarding him SSA disability benefits. While SSA awards are based on criteria distinct from the criteria relied upon by VA for TDIU claims, (they contemplate the Veteran’s age and all disabilities shown rather than basing a determination as to his employability on his service-connected disabilities alone) and cannot be determinative of themselves, they are evidence bearing on TDIU. Further, in concluding that the Veteran’s employment is limited to sedentary work, the VA examination reports do not identify what sedentary employment the Veteran is qualified to perform given his employment history (although he has earned 28 college credits, the Veteran’s employment has been limited to essentially physical labor). The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the evidence is at least in equipoise that his service-connected disabilities have rendered him unable to secure or follow substantially gainful employment throughout the appeal period prior to April 27, 2016. Therefore, entitlement to TDIU for the period prior to April 27, 2016 is granted. REASONS FOR REMAND The Veteran has been afforded multiple VA examinations of his spine, knees and left ankle. The examinations pertaining to the back and knees do not comply with the requirements set out in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the examinations do not contain information pertaining to pain on both active and passive motion, in weight-bearing and non-weight-bearing. Further development is necessary in order to determine whether that information can be procured through estimation or otherwise. Although the Veteran’s back disability was increased to 40 percent disabling based on an April 2016 VA examination report, subsequent VA and private treatment records show evidence of flare-ups and neurological findings. See, e.g., July 2017 report from Freestone Medical Center noting sciatica and August 2017 VA treatment report noting a 3 week history of acute flare-up of back pain. As such, current findings would be helpful, to include with respect to ankylosis, neurological manifestations (including reconciliation of conflicting evidence) and incapacitating episodes. Regarding the left ankle, although the March 2017 examination report complies with requirements set out in Correia; the examiner did not provide an opinion as to the functional loss the Veteran experienced during flare-ups of his left ankle disability. Sharp v. Shulkin, 29 Vet. App. 26 (2017). On remand the Veteran should be scheduled for another VA examination in order to provide the examiner an opportunity to obtain all “procurable medical evidence” before declining to offer an opinion as to flare-ups of the Veteran’s condition. Id. at 36. The matters are REMANDED for the following action: 1. Obtain any outstanding, relevant VA and private treatment records for the Veteran. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination of his back, knees and left ankle. The examiner should review the record. All indicated tests should be conducted and the results reported. The examiner should address the following: Back: a) Please report all signs and symptoms necessary for evaluating the Veteran’s back disability under the relevant rating criteria. In particular, the examiner should identify and describe the functional impairment due to any associated neurological manifestations. In this regard, the examiner should reconcile findings of no neurological impairment (see, e.g., September 2012 back examination report noting radiculopathy, peripheral nerves examination report noting no radiculopathy and April 2016 VA back examination report noting no radiculopathy) and findings and complaints of sciatica (see, e.g., July 2017 report from Freestone Medical Center noting sciatica and Veteran’s complaints of numbness and pain in his legs.) b) To the extent feasible, please provide a retrospective opinion with respect to the Veteran’s low back disability during the period from April 16, 2010 to April 27, 2016. In particular, the examiner should (a) provide an estimate of the range of motion in the thoracolumbar spine on passive motion, and with weight-bearing and non-weight-bearing, during that time frame; and (b) express any functional loss due to factors such as pain, weakness, fatigability, or incoordination, and any functional loss due to flare-ups, in terms of additional loss in range of motion (i.e., in addition to that observed clinically), taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Knees and left ankle: a) Please test the range of motion of the Veteran’s left and right knee and left ankle in active motion, passive motion, weight-bearing, and non-weight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, please clearly explain why that is so. b) Please identify any functional loss due to flare-ups and express such loss in terms of additional loss in range of motion. c) To the extent feasible, please provide a retrospective opinion with respect to the Veteran’s left and right knee and left ankle disabilities since April 16, 2010. In particular, the examiner should (a) provide an estimate of the range of motion in the left and right knee and left ankle disabilities on passive motion, and with weight-bearing and non-weight-bearing, during that time frame; and (b) express any functional loss due to factors such as pain, weakness, fatigability, or incoordination, and any functional loss due to flare-ups, in terms of additional loss in range of motion (i.e., in addition to that observed clinically), taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. The examiner is advised that governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time at the moment of examination, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Hughes, Counsel