Citation Nr: 18157019 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-47 572 DATE: December 11, 2018 ORDER Entitlement to an initial effective date earlier than May 3, 2016, for the grant of service connection for left knee degenerative joint disease (hereinafter, “left knee disability”) is denied. Entitlement to an initial effective date earlier than May 3, 2016, for the grant of service connection for a left ankle strain is denied. Entitlement to service connection for a bilateral elbow disability, to include as secondary to a service-connected right knee disability, is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to service connection for emphysema is denied. Entitlement to an initial disability rating of 40 percent, but no higher, for service-connected lumbar spine degenerative disc disease and facet degenerative joint disease and intervertebral disc syndrome (hereinafter, “lumbar spine disability”), is granted. Entitlement to an initial disability rating higher than 10 percent from August 24, 2015, and 20 percent from March 29, 2017, for right lower extremity radiculopathy is denied. Entitlement to an initial disability rating higher than 10 percent for a left ankle disability is denied. Entitlement to a disability rating of 70 percent for major depressive disorder, but no higher, for the entire period of appeal, is granted. REMANDED Entitlement to an initial disability rating higher than 10 percent for limitation of extension of the right hip is remanded. Entitlement to an initial compensable disability rating for limitation of flexion of the right hip is remanded. Entitlement to an initial compensable disability rating for limitation of abduction and rotation of the right thigh is remanded. Entitlement to an initial disability rating higher than 10 percent for limitation of extension of the left hip is remanded. Entitlement to an initial compensable disability rating for limitation of flexion of the left hip is remanded. Entitlement to an initial compensable disability rating for limitation of abduction and rotation of the left thigh is remanded. Entitlement to a disability rating higher than 30 percent for a right knee total arthroplasty (hereinafter, “right knee disability”), from February 1, 2018, is remanded. Entitlement to a disability rating higher than 10 percent for a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran first sought service connection for a left knee and left ankle disability in a May 3, 2016, claim. 2. The preponderance of the evidence of record does not establish that the Veteran has a bilateral elbow disability related to his service-connected right knee disability, or to a disease or injury incurred in service. 3. The preponderance of the evidence of record does not establish that the Veteran’s currently diagnosed COPD was caused by an in-service disease or injury. 4. The preponderance of the evidence of record does not establish that the Veteran’s currently diagnosed emphysema was caused by an in-service disease or injury. 5. The preponderance of the evidence of record reflects that the Veteran’s lumbar spine disability is productive of exhibited pain, fatigue, weakness, and lack of endurance during flare-ups, but not ankylosis. 6. The preponderance of the evidence of record reflects that from August 24, 2015, the Veteran’s right lower extremity radiculopathy was productive of mild intermittent pain and mild paresthesias and/or dysesthesias. From March 29, 2017, the Veteran’s radiculopathy was productive of moderate intermittent (usually dull) pain, with no constant pain, paresthesias and/or dysesthesias, or numbness. 7. The preponderance of the evidence of record reflects that the Veteran’s left ankle symptomology reflected, at worst, moderate limitation of motion. 8. The preponderance of the evidence of record reflects that for the entire period on appeal, the Veteran’s major depressive disorder has been productive of occupational and social impairment, with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an initial effective date prior to May 3, 2016, for the grant of service connection for a left knee disability have not been met. 38 U.S.C. §§ 5110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.350, 3.400, 3.816. 2. The criteria for an initial effective date prior to May 3, 2016, for the grant of service connection for a left ankle strain have not been met. 38 U.S.C. §§ 5110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.350, 3.400, 3.816. 3. The criteria for entitlement to service connection for a bilateral elbow disability, to include as secondary to service-connected right knee disability, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for emphysema have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for an initial disability rating of 40 percent, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5243. 7. The criteria for a disability rating higher than 10 percent from August 24, 2015, and 20 percent from March 29, 2017, for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520. 8. The criteria for a disability rating higher than 10 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5271. 9. The criteria for a disability rating of 70 percent, and no higher, for major depressive disorder, for the entire period on appeal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army National Guard from August 1986 to March 1987, and in the United States Army from October 1997 to January 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2015, August 2016, October 2016, and April 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Earlier Effective Date The Veteran maintains that he is entitled to an initial effective date prior to May 3, 2016, for the grant of service connection for a left knee disability and a left ankle strain. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to that rule provides that the effective date of an award of an increase shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from active service. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claims must identify the benefit sought. Additionally, a report of VA examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b)(1) (in effect prior to March 25, 2015). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. See Norris v. West, 12 Vet. App. 413, 417 (1999). A review of the Veteran’s claims file reflects that the first claim for service connection for a left knee and left ankle disability was received by the VA on May 3, 2016. Although the Veteran indicated on his claim form that he was filing to reopen his previously denied claim of left ankle secondary to the right knee, the record does not reflect a previously denied claim for a left ankle disability. Although the Veteran filed a claim for a right ankle disability in June 2011, the record does not reflect a previous claim for a left ankle disability. Further, the record does not reflect a previous claim for a left knee disability. In sum, the earliest possible effective date for the Veteran’s claims of service connection for a left knee disability and a left ankle strain is May 3, 2016, the date his claim for service connection for these disabilities were received by VA. 38 U.S.C. § 5110. As this appeal must be denied as a matter of law, the benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, an effective date earlier than May 3, 2016, for the grant of service connection for a left knee disability and a left ankle strain is denied. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, entitlement to service connection may be established on a secondary basis to an already service-connected disability. To substantiate a claim for secondary service connection, evidence is needed to establish that the nonservice-connected current disability is either proximately due to, or the result of, a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Bilateral Elbow The Veteran maintains that he is entitled to service connection for a bilateral elbow disability. The Board notes that the Veteran has also claimed entitlement to a temporary total disability rating for this disability. He maintains that this disability is secondary to his service-connected right knee disability because he hurt his elbows when his knee disability caused him to fall. There is no indication in the Veteran’s service treatment records of any reports of, or treatment for, an elbow injury, nor does the Veteran or his attorney contend that such an injury occurred; thus, analysis under direct service-connection is not warranted. The Veteran was provided a VA examination in October 2015. He was diagnosed with bilateral ulnar neuropathy status-post bilateral ulnar transposition. He underwent surgeries for this disability in December 2014 and January 2015. He reported that he was experiencing symptoms of neuropathy consistent with ulnar neuropathy for approximately the past 2 to 3 years. He also reported that in June 2014 he fell down his basement steps and hit his elbows. The VA examiner found that upon medical examination, there was no evidence of an elbow disability, besides bilateral ulnar neuropathy, which had its onset prior to the reported fall. Imaging studies showed no evidence of any trauma affecting the elbows. Further, the Veteran’s reported symptomology—paresthesias, numbness, and tingling—is consistent with ulnar neuropathy. The Veteran demonstrated full range of motion of the elbow, and there was no specific pain or tenderness or lack of range of motion or function with regards to the elbow. Also of record are VA treatment records, which reflect the Veteran receiving treatment for his diagnosed bilateral ulnar neuropathy. Treatment records reflect the Veteran’s ulnar transposition surgeries, as well has his post-operative treatment. There is no indication in these records that the Veteran sustained a bilateral elbow injury from a fall due to his service-connected right knee disability. Considering the foregoing, the Board finds that entitlement to service connection for a bilateral elbow disability is not warranted. Although the Veteran maintained that he has a bilateral elbow disability following a fall, this contention is outweighed by the other evidence of record. Specifically, the numerous VA treatment records that indicate the Veteran receiving surgery and treatment for bilateral ulnar neuropathy, as well as the October 2015 VA examination, which found no current elbow disability other than the bilateral ulnar neuropathy, which had its onset prior to the timeframe that the Veteran alleged he fell. Finally, the Board notes that the Veteran claims that he is entitled to a temporary total disability rating for his bilateral elbow surgeries. As a temporary total disability rating for convalescence purposes is only applicable for service-connected disabilities, and because the Board has found that entitlement to service connection for a bilateral elbow disability is not warranted, entitlement to a temporary total disability rating is also not warranted. See 38 C.F.R. § 4.30(a)(1)-(3). As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, entitlement to service connection for a bilateral elbow disability is not warranted. COPD and Emphysema The Veteran maintains that he is entitled to service connection for COPD and emphysema because these disabilities were caused by working on armored vehicle brake hydraulic systems in service. The record reflects that the Veteran has current diagnoses for COPD and emphysema; thus, the current disability element for these claims has been established. However, the Board finds that the Veteran’s claims fail, as there is insufficient evidence to substantiate the second element of service connection—the incurrence of an in-service disease or injury. A review of the Veteran’s military personnel records reflects that his military occupational specialty involved working with trucks, but a review of the service treatment records does not reflect any reports of, of treatment for, any respiratory disability. Further, the Veteran himself does not even claim that these symptoms began in service. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and entitlement to service connection for COPD and emphysema is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the action. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. Additionally, when evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); see also 38 C.F.R. § 4.59. Spine Currently, the Veteran’s lumbar spine disability is rated at 20 percent under Diagnostic Code (DC) 5243 for intervertebral disc syndrome (IVDS). The rating criteria provides to either evaluate IVDS under the General Rating Formula for Diseases and Injuries of the Spine, or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, DC 5243. The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, DC 5242. A 40 percent evaluation is warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is granted if the Veteran has unfavorable ankylosis of the entire spine. Id. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrants a 10 percent evaluation. A 20 percent evaluation is warranted where there are incapacitating episodes totaling at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. The Veteran was provided a VA examination, conducted by a contractor, for his lumbar spine in March 2017, where he was provided the following diagnoses: lumbar spine degenerative disc disease, facet degenerative disc disorder and strain, and IVDS. The Veteran reported daily and constant back pain, for which he takes medication. He further reported significant flare-ups that occur with bending, lifting, sitting, standing, and weather changes. These symptoms result in significant functional loss. Range of motion measurements were as follows: forward flexion to 60 degrees; extension to 20 degrees; right and left lateral flexion to 25 degrees; and right and left lateral rotation to 30 degrees. Pain was noted on examination that causes functional loss on forward flexion, extension, and right and left lateral flexion. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the lumbar spine, which was moderate/severe. There was further pain on weight bearing. Additionally, there was further limitation of range of motion on repetitive-use testing, as follows: forward flexion to 45 degrees; extension to 15 degrees; right and left later flexion to 20 degrees; and right and left lateral rotation to 25 degrees. The Veteran exhibited pain, fatigue, weakness, and lack of endurance. The examination was conducted during a flare-up of the Veteran’s condition. He had guarding or muscle spasm of the lumbar spine resulting in abnormal gait or abnormal spine contour. The following additional factors were noted to contribute to the Veteran’s disability: disturbance of locomotion and interference with sitting and standing. Further, muscle strength testing was noted to be active movement against some resistance. He did not have muscle atrophy. There was no ankylosis of the spine. The Veteran had IVDS, however, there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not require the use of an assistive device. Regarding functional impact, the examiner indicated that it is likely that the Veteran’s current level of back disease would interfere with many types of employment. Also of record are VA out-patient treatment records, which reflect the Veteran receiving consistent follow-up treatment for his lumbar spine disability. these records reflect the Veteran reporting significant lumbar pain, but there is no indication of ankylosis. In light of the foregoing, the Board finds that an initial disability rating of 40 percent, but no higher, for the Veteran’s lumbar spine disability is warranted. Although the Veteran’s range of motion measurements reflect forward flexion to 60 degrees, the Board finds that the preponderance of the evidence of record reflects that the Veteran experiences significant flare-ups, which result in further limitation of range of motion. The Board finds this further limitation of range of motion sufficient to warrant a 40 percent disability rating. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); see also 38 C.F.R. § 4.71a, DC 5242. However, as there is no evidence of ankylosis, a rating higher than 40 percent is not warranted. 38 C.F.R. § 4.71a, DC 5242. In sum, the Board finds that entitlement to a disability rating of 40 percent, but no higher, for the Veteran’s lumbar spine disability is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Lower Extremity Radiculopathy The Veteran contends that he is entitled to a disability rating higher than 10 percent from August 24, 2015, and 20 percent from March 29, 2017, for right lower extremity radiculopathy. The Veteran’s right lower extremity radiculopathy is rated under DC 8720 for neuralgia; however, the Board finds that DC 8520 better reflects the Veteran’s lower extremity radiculopathy. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve; and a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of muscles below the knee, and where flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The Board observes that the terms “mild,” “moderate,” and “severe” are not defined in the Ratings Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. On October 2015 VA examination, the Veteran was noted to have radicular pain in his right lower extremity due to radiculopathy associated with his lumbar spine disability. He had mild intermittent (usually dull) pain, and mild paresthesias and/or dysesthesias. He did not have any constant pain or numbness. This pain involved the sciatic nerve root. The overall severity was found to be mild. On March 2017 VA examination, conducted by a contractor, the Veteran was again noted to have right lower extremity radicular pain due to radiculopathy associated with his lumbar spine disability. He was found to have moderate intermittent (usually dull) pain, with no constant pain, paresthesias and/or dysesthesias, or numbness. This pain involved the sciatic nerve root. The overall severity was found to be moderate. Also of record are VA out-patient treatment records, which reflect the Veteran reporting radicular pain down his right lower extremity associated with his lumbar spine disability. These records do not reflect symptomology worse than what was noted in the VA examinations of record. Based on the foregoing, the Board finds that from the period from August 24, 2015, the Veteran’s right lower extremity radiculopathy did not warrant a rating higher than 10 percent. For this period, the Veteran only exhibited mild intermittent pain and mild paresthesias and/or dysesthesias. 38 C.F.R. § 4.124a, DC 8520. Based on these symptomologies, the Board does not find that the Veteran’s disability picture warrants a rating higher than 10 percent for this period because the Veteran’s radiculopathy did not present with moderate incomplete paralysis. Id. Additionally, the Board funds that from the period from March 29, 2017, the Veteran’s right lower extremity radiculopathy did not warrant a rating higher than 20 percent. For this period, the Veteran exhibited moderate intermittent (usually dull) pain, with no constant pain, paresthesias and/or dysesthesias, or numbness. Id. Based on these symptomologies, the Board does not find that the Veteran’s disability picture warrants a rating higher than 20 percent for this period because the Veteran’s radiculopathy did not present with moderately severe incomplete paralysis. Id. In sum, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent from August 24, 2015, and 20 percent from March 29, 2017, for right lower extremity radiculopathy. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Ankle The Veteran maintains that he is entitled to a disability rating higher than 10 percent for his left ankle disability. His left ankle disability is currently rated under DC 5271. Under DC 5271, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate. See 38 C.F.R. § 4.71a, DC 5271. A maximum 20 percent rating is warranted where the limitation of motion in the ankle is marked. Id. The words “moderate” and “marked,” as used in this DC, are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence of “equitable and just decisions.” 38 C.F.R. § 4.6. The Board notes that normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Further, the Board notes that separate ratings are applicable for the ankle, but upon review of the claims file, there is no evidence of functional impairment comparable to ankylosis, including of the subastragalar or tarsal joint, and there is no evidence of malunion of os calcis or astragalus, or astragalectomy. Accordingly, analysis under DCs 5270, 5272, 5273, or 5273 is not warranted. The Veteran was provided a VA examination for his left ankle disability in October 2016, where he was diagnosed with a left ankle strain, with an onset in March 2016. The Veteran sprained his ankle while walking down the stairs. He presented to the emergency room. The VA examiner indicated that review of imaging studies revealed no fracture in the ankle. However, the Veteran was prescribed a walking boot. Further, current x-rays did not reflect any fractures. On the date of VA examination, the Veteran still experienced pain, but no longer wore the walking boot. Range of motion measurements were dorsiflexion to 10 degrees and plantar flexion to 40 degrees. Although there was pain noted on examination, this was not found to result in addition loss of range of motion. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. No ankylosis was found. Muscle strength testing was normal, there was no reduction in muscle strength, and the Veteran did not have muscle atrophy. Regarding flare-ups, the examination was not conducted during a flare-up, and the examiner indicated that he was unable to render an opinion as to any additional functional limitation during a flare-up because the Veteran was not experiencing a flare-up at the time of examination. However, the Veteran reported that any twisting, rolling, or walking on uneven ground, or even prolonged weight-bearing, aggravated the ankle. Also of record are VA out-patient treatment records, which reflect the Veteran being treated for his ankle disability. Records indicate that the Veteran presented to the emergency department for a left ankle injury. A left ankle fracture was noted on x-ray. The Board notes that this is inconsistent with the more recent October 2016 VA examiner who did not find any evidence of a fracture on x-ray. Based on the foregoing, the Board finds that entitlement to a disability rating higher than 10 percent for a left ankle disability is not warranted. The Board acknowledges that the October 2016 VA examiner did not specifically address what, if any, additional range of motion limitation occurred during flare-ups of the Veteran’s disability. However, the Board notes that the Veteran did describe his symptomology during flare-ups. Further, the Board notes that DC 5271 does not rate a disability based on limitation of degree of range or motion, but rather makes a distinction based on moderate and marked symptomology. See 38 C.F.R. § 4.71a, DC 5271. Even taking into consideration the Veteran’s reports of flare-ups including twisting or rolling and prolonged weight-bearing would aggravate his ankle, the Board finds that the current 10 percent rating appropriately reflects this symptomology. He has not asserted, and the record does not reflect, that the pain is so severe as to cause marked limitation of motion of the ankle, even during flare-ups. In sum, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent for a left ankle disability. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Depression The Veteran is currently service-connected for major depressive disorder, rated at 50 percent from November 29, 2012, and 70 percent from April 10, 2017. The Veteran filed an increased rating claim for his service-connected depression in May 2016, which was denied in the August 2016 rating currently on appeal. The Board notes that the Veteran’s depression rating was increased from 50 percent to 70 percent, effective April 10, 2017, in a May 2017 supplemental statement of the case. The Veteran’s representative argues that the Veteran should be afforded an earlier effective date of October 20, 2016, for the Veteran’s 70 percent disability rating. The Board has recharacterized this as an increased rating claim, as this seems to reflect the Veteran’s claim of an increased rating for the period prior to April 10, 2017. Pursuant to VA regulations, the Veteran’s major depressive disorder is rated under DC 9434 and the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9434. The General Rating Formula for Mental Disorders provides for the assignment of a 50 percent rating when the evidence shows there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. Id. Lastly, the assignment of a 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. It should be noted that the symptoms listed in VA’s General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Additionally, the rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. The Veteran was provided a VA examination in May 2016, where he was provided a diagnosis of major depressive disorder due to another medical condition. The examiner noted that although the Veteran had been diagnosed with anxiety in treatment, this symptom is part of the symptomology of the diagnosed major depressive disorder. He was found to have occupational and social impairment with reduced reliability and productivity. On the day of examination, he was oriented in all spheres, with his attention and concentration intact. He described his mood as “useless, depressed, sad, [and] lonely.” He also reported being hospitalized and receiving in-patient treatment for suicidal thoughts. Regarding his family, the Veteran reported being divorced, and had some contact with his extended family. Socially, he tried to go out and see his friends, but found it financially difficult. During the day, he went finishing and engaged in religious activities. The following additional symptoms were noted: depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. On October 2016 VA examination, the Veteran was diagnosed with major depressive disorder due to another medical condition. The examiner noted that the recent diagnosis of unspecified bipolar disorder in treatment was reviewed and appeared to be primarily the same diagnosis as major depressive disorder due to another medical condition and was not a new disorder. The Veteran had occupational and social impairment with reduced reliability and productivity. On the date of examination, he was oriented in all spheres. His attention and concentration were intact. He described his mood as “worthless, depressed, sad, [and] lonely.” He reported sleep difficulties. His insight and judgment were within normal limits. His memory was also intact. Regarding his family, the Veteran reported being divorced and having some phone contact with his family. He reported not going to many other social activities, besides church, because he was afraid of falling and feeling embarrassed. He spent his days on the computer. He could do other activities around the house, but nothing too strenuous to hurt his back. The following additional symptoms were noted: depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. Also of record are VA treatment records, which reflect the Veteran receiving treatment for his major depressive disorder. The Veteran was admitted for psychiatric observation in March 2015 for three days for suicidal ideations and increased depression. He also reported hearing the voices of his deceased parents three to four times per week. The records also reflect that the Veteran was admitted for psychiatric observation in April 2017 for suicidal thoughts, and for thoughts of wanting to harm others. The Board finds that a disability rating for 70 percent, and no higher, for the entire period on appeal is warranted. Although the documentation of the Veteran’s hospitalization was in March 2015, prior to his increased rating claim, the Board finds that these records reflect the Veteran’s mental health symptomology for the entire period on appeal. Specifically, his April 2017 hospitalization reflects this continued mental health symptomology. Thus, the Board finds that the Veteran’s suicidal ideation warrants a 70 percent disability rating. 38 C.F.R. § 4.130, DC 9434. However, the Board finds that the Veteran’s symptomology does not reflect that necessary for a total 100 percent disability rating for his major depressive disorder. The record does not reflect, nor does the Veteran or his attorney contend, that he exhibits gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. While the Veteran was hospitalized for wanting to hurt others, this does not appear to be a persistent issue. Further, there was no indication in the Veteran’s recent VA examinations of record of delusions or hallucinations. In sum, the Board finds that a disability rating of 70 percent, but no higher, for the period on appeal is warranted. REASONS FOR REMAND Finally, the Veteran claims that he is entitled to increased ratings for his service-connected bilateral hip disability and bilateral knee disability, as well as an award of a TDIU. For the reasons discussed below, the Board finds that a remand for these disabilities is warranted.   Bilateral Hip Disability The Veteran maintains that he is entitled to a disability rating higher than 10 percent for service-connected bilateral hip limitation of extension, and compensable disability ratings for bilateral hip limitation of flexion, and bilateral thigh limitation of abduction and rotation. The Veteran was last provided a VA examination for his bilateral hip disabilities in March 2017. However, the Veteran’s attorney, in a July 2018 statement, argued that this examination was inadequate because the VA examiner did not properly address the frequency, duration, characteristics, severity, or functional loss during flare-ups of this bilateral hip disability. Specifically, the Board notes that the March 2017 VA contract examiner indicated that an examiner would need to be present during a flare-up to address functional loss during a flare-up. Accordingly, the Board finds that this examination was inadequate under the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (holding that when conducting evaluations for musculoskeletal disabilities, if there are periods of flare-ups, the examiners must state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment). Here, the Veteran’s attorney maintains that the Veteran experiences significant flare-ups of his bilateral hip disabilities; therefore, the Board finds that a new examination is warranted to elicit more information from the Veteran regarding any additional functional loss during flare-ups. See id. Bilateral Knee Disability The Veteran maintains that he is entitled to a disability rating higher than 30 percent for his right knee disability, and higher than10 percent for his left knee disability. By way of background, the Veteran underwent a total right knee arthroplasty on December 21, 2016. Accordingly, he was provided a temporary total disability rating from the date of surgery. His rating went down to 30 percent, the minimum rating applicable under the rating criteria for the residuals following a knee replacement, effective February 1, 2018. See 38 C.F.R. § 4.71a, DC 5055. The Veteran was service connected for his left knee disability, as secondary to his right knee disability, in an October 2016 rating decision. He was provided a 10 percent disability rating. The Veteran was not provided a VA examination subsequent to his December 21, 2016 right knee arthroplasty. Accordingly, the Board finds that a remand is warranted to afford the Veteran a VA examination to determine the current severity of his right knee disability. Further, the Board finds that the most recent October 2016 VA examination of the left knee is inadequate because the examiner did not specifically address the Veteran’s reported flare-ups pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Thus, a new examination for the left knee is also warranted. TDIU The Veteran maintains that he entitled to an award of a TDIU because his service-connected disabilities renders him unable to obtain employment. As the development of the bilateral hip and bilateral knee disability claims may result in additional evidence that could affect a determination with respect to a TDIU, these issues are inextricably intertwined and the issue of entitlement to a TDIU must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, these matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records related to the claims on appeal. 2. Schedule the Veteran for an appropriate VA examination to identify the current nature and severity of his service-connected bilateral hip and bilateral knee disabilities. The examiner should provide a full description of the Veteran’s bilateral hip and bilateral knee disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To comply with Sharp, 29 Vet. App. at 34-36, the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use, and if so, the examiner must estimate range of motion during flare-ups or repetitive use based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding flares. Further, to the extent possible, the examiner should also discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. (Continued on the next page)   A complete rationale for all opinions should be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel