Citation Nr: 18157410 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 12-01 873 DATE: December 13, 2018 ORDER A disability rating of 10 percent, but not higher, for right elbow epicondylitis (painful motion) is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to a disability rating in excess of 20 percent for residuals of a cervical spine injury is denied. A separate disability rating of 20 percent, but not higher, for left upper extremity radiculopathy (as impairment of the upper radicular group) is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to a disability rating for recurrent muscle strain of the lumbar spine in excess of 20 percent prior to September 6, 2017, and in excess of 40 percent thereafter is denied. Beginning September 6, 2017, entitlement to a disability rating of 20 percent, the maximum based on limited motion, for residuals of a right ankle strain is granted, subject to the laws and regulations governing the payment of monetary awards. Beginning September 6, 2017, entitlement to a disability rating of 20 percent, the maximum based on limited motion, for residuals of a left ankle strain is granted, subject to the laws and regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for bilateral hearing loss, to include as due to service-connected chronic sinusitis, is remanded. FINDINGS OF FACT 1. The Veteran’s right elbow epicondylitis has manifested as painful motion without limitation of motion. 2. The Veteran’s residuals of a cervical spine injury are not manifested by forward flexion to 15 degrees or less, ankylosis of the entire cervical spine, or incapacitating episodes. 3. The Veteran’s residuals of a cervical spine injury include left upper extremity radiculopathy manifested as mild incomplete paralysis of the left upper radicular group. 4. Prior to September 6, 2017, the Veteran’s recurrent muscle strain of the lumbar spine did not manifest as forward flexion to 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes. 5. Beginning September 6, 2017, Veteran’s recurrent muscle strain of the lumbar spine did not manifest as ankylosis of the entire thoracolumbar spine or incapacitating episodes. 6. Beginning September 6, 2017, the Veteran’s residuals of right and left ankle strains were manifested as marked limited motion of the ankle. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 10 percent, but not higher, for right elbow epicondylitis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5206. 2. The criteria for a disability rating in excess of 20 percent for residuals of a cervical spine injury have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 3. The criteria for a separate disability rating of 20 percent, but not higher, for left upper extremity radiculopathy (as impairment of the upper radicular group) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Codes 8510, 8610, 8710. 4. The criteria for a disability rating for recurrent muscle strain of the lumbar spine in excess of 20 percent prior to September 6, 2017, and in excess of 40 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 5. Beginning September 6, 2017, the criteria for a disability rating of 20 percent for residuals of a right ankle strain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 6. Beginning September 6, 2017, the criteria for a disability rating of 20 percent for residuals of a left ankle strain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to August 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2009, December 2009, December 2015, and February 2018 rating decisions. In December 2012, the Veteran testified at a videoconference Board hearing before the undersigned, and a transcript is of record. Most recently, in July 2017, the Board remanded these issues for further development, and the case has been returned for appellate consideration. The Board finds there has been substantial compliance with its July 2017 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)); see also Dyment v. West, 13 Vet. App. 141, 146–47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand). On remand, in the February 2018 rating decision, the evaluation of the Veteran’s recurrent muscle strain of the lumbar spine was increased to 40 percent disabling, effective September 6, 2017. As this disability rating is less than the maximum benefit available and the Veteran has not indicated satisfaction with the rating assigned, the appeal for a higher disability rating remains before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the Veteran has appealed the issue of medical expense reimbursement, which is not yet perfected, and therefore, is not before the Board at this time. Increased Rating As to each of his service-connected disabilities, the Veteran essentially contends that they are more disabling than contemplated by the current evaluations. Hence, as to each of the Veteran’s service-connected disabilities, the question for the Board is whether his disability picture more nearly approximates the criteria for a higher disability rating. In November 2008, the Veteran claimed for increased disability ratings of all his service-connected disabilities. Hence, the appeal period before the Board begins November 7, 2007, the date VA received the claims for increased ratings, plus the one-year look-back period. 38 U.S.C. §§ 5110(a), (b)(3); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate diagnostic codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the standard working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With particular respect to the joints, the disability factors reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. When evaluating joint disabilities rated on the basis of limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or § 4.73] criteria.”). Read together, 38 C.F.R. § 4.71a, Diagnostic Code 5003, and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, that is established by X-ray, is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 4.59 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). Ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 68 (4th ed. 1987)). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule of Rating Disabilities. 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. It should also be noted that use of terminology such as severe by VA examiners and others, although an element 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. VA regulations indicate that handedness will be determined by the evidence of record. 38 C.F.R. § 4.69. Here, during VA examinations, it was recorded that the Veteran is right-hand dominant. Accordingly, the disability ratings under the various diagnostic codes for right elbow and diseases of the peripheral nerves will be for the major (dominant) or minor (non-dominant) extremity as appropriate. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. The Board notes that the Veteran is competent to report that which he has perceived through the use of his senses, including the occurrence of pain and other symptoms of his disabilities. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). He is not, however, competent to state whether his symptoms warrant a specific rating under the schedule for rating disabilities, and the Board finds that the objective medical findings are more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). The Veteran was afforded a general medical VA examination in February 2009, during which the Veteran reported consistent subjective symptomatology as to each of the disabilities under review as during later examinations. While the range of motion testing results varied compared to later examinations, they were not inconsistent with the Veteran’s disability picture established by more recent evidence. Furthermore, the February 2009 examiner opined that, based upon the expected range of motion from viewing X-rays of the Veteran’s neck and back, it appeared the Veteran exerted less than optimal attempts at range of motion testing. Hence, the Board will address in detail the Veteran’s most recent VA examinations. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 C.F.R. § 3.655, Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that “[t]he duty to assist is not always a one-way street”); Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005) (stating that the failure to cooperate during an examination subjects the claimant to the risk of an adverse adjudication based on an incomplete and underdeveloped record). 1. Entitlement to a compensable disability rating for right elbow epicondylitis. The Veteran seeks a compensable disability rating for his service-connected right elbow epicondylitis. The Board concludes that a disability rating of 10 percent, but not higher, for painful motion due to right elbow epicondylitis is warranted. The Veteran’s right elbow epicondylitis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5206, currently evaluated as noncompensable. Disabilities of the elbow and forearm are evaluated under diagnostic codes 5205 through 5213, and will be considered for the major (dominant) joint as the Veteran is right-handed. 38 C.F.R. § 4.71a, Diagnostic Codes 5205–5213. As the evidence discussed below fails to show ankylosis of the elbow, other impairment of the elbow, nonunion of the radius and ulna with flail false joint, impairment of the ulna, impairment of the radius, or impairment of supination and pronation, Diagnostic Codes 5205 (elbow, ankylosis), 5209 (elbow, other impairment), 5210 (radius and ulna, nonunion of, with flail false joint), 5211 (ulna, impairment), and 5212 (radius, impairment) do not apply. 38 C.F.R. § 4.71a, Diagnostic Codes 5205, 5209–5212. Pursuant to VA regulations, normal range of motion for elbow flexion is 0 to 145 degrees, extension is 145 to 0 degrees, forearm supination is 0 to 85 degrees, and forearm pronation is 0 to 80 degrees. 38 C.F.R. § 4.71, Plate I. For the major joint, Diagnostic Code 5206, which evaluates limitation of flexion of the forearm, provides for a non-compensable disability rating when flexion is limited to 110 degrees; a 10 percent disability rating when flexion is limited to 100 degrees; a 20 percent disability rating when flexion is limited to 90 degrees; a 30 percent disability rating when flexion is limited to 70 degrees; a 40 percent disability rating when flexion is limited to 55 degrees; a 50 percent disability rating when flexion is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5206. For the major joint, Diagnostic Code 5207, which evaluates limitation of extension of the forearm, provides for a 10 percent disability rating when extension is limited to 45 degrees; a 10 percent disability rating when extension is limited to 60 degrees; a 20 percent disability rating when extension is limited to 75 degrees; a 30 percent disability rating when extension is limited to 90 degrees; a 40 percent disability rating when extension is limited to 100 degrees; and a 50 percent disability rating when extension is limited to 110 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5207. For the major joint, Diagnostic Code 5208, which evaluates flexion limited to 100 degrees and extension to 45 degrees, provides for a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5208. For the major joint, Diagnostic Code 5213, which evaluates impairment of supination and pronation, provides for a 10 percent disability rating when supination is limited to 30 degrees or less; a 20 percent disability rating when limitation of pronation manifests as motion lost beyond last quarter of arc, the hand does not approach full pronation; a 30 percent disability rating when limitation of pronation manifests as motion lost beyond middle of arc; a 20 percent disability rating when as a result of bone fusion the hand is fixed near the middle of the arc or moderate pronation; a 30 percent disability rating when as a result of bone fusion the hand is fixed in full pronation; and a 40 percent disability rating when as a result of bone fusion the hand is fixed in supination or hyperpronation. 38 C.F.R. § 4.71a, Diagnostic Code 5213. The report of the January 2012 VA examination that the Veteran was afforded showed that on initial range of motion testing, flexion was to 145 degrees with pain starting at 140 degrees. It was recorded that on repetitive use testing flexion was to 140 degrees. The examiner expressly indicated that there was pain on movement of the right elbow. Otherwise, no anatomical or mechanical defects of the right elbow were noted. The report of the October 2015 VA examination that the Veteran was afforded for his service-connected right elbow disability, likewise, showed normal range of motion, the absence of pain on examination, and no anatomical or mechanical defects of the right elbow. In September 2017, the Veteran was afforded a VA examination for elbow and forearm conditions, during which right side lateral epicondylitis having been diagnosed in 1992 was noted. It was indicated that the Veteran is right hand dominant. The Veteran reported intermittent pain and, with repetitive use, swelling, which he treated with NSAIDS and seeing his primary care physician regularly. He reported that during flare-ups there was decreased strength in the right arm and hand and that his elbow would hurt so badly that he could not bend his arm. On initial range of motion testing for the right elbow, flexion was to 145 degrees; extension was to zero degrees; forearm supination was to 85 degrees; and forearm pronation was to zero degrees, which was indicated as normal. It was indicated that there was no additional functional loss after three repetitions. It was indicated that there was no pain on examination and that there was no evidence of pain on weight bearing. It was indicated that there was no objective evidence of crepitus but there was localized mild tenderness on palpation directly over the lateral epicondyle without redness or swelling. By comparison, it was indicated that all testing of the left side was normal. It was recorded that muscle strength was normal, that there was no muscle atrophy, and that there was no ankylosis. It was indicated that the Veteran did not have flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. It was recorded that the imaging studies did not document the presence of degenerative or traumatic arthritis. Based upon a careful review of the foregoing, the Board finds that the evidence does not support a compensable disability rating under Diagnostic Codes 5206, 5207, 5208, or 5213 because flexion was not limited to 100 degrees or extension limited to 45 degrees, and supination and pronation were not impaired. 38 C.F.R. § 4.71a, Diagnostic Codes 5206–5208, 5213. Nevertheless, a part that becomes painful on use must be regarded as disabled. 38 C.F.R. §§ 4.40, 4.59. Accordingly, 38 C.F.R. § 4.59 allows entitlement to at least the minimum compensable rating for a joint due to painful motion when limitation of motion is noncompensable. 38 C.F.R. §§ 4.40, 4.59, 4.71a, Diagnostic Code 5003; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (addressing X-ray evidence of arthritis); Burton v. Shinseki, 25 Vet. App. 1 (2011) (expanding consideration of the provisions of 38 C.F.R. § 4.59 beyond arthritis when raised by the claimant or when reasonably raised by the record). During the September 2017 examination, the Veteran competently and credibly reported that during flare-ups his right elbow would hurt so badly that it could not be bent; however, the Board finds the objective medical findings more probative. See 38 C.F.R. §§ 3.159(a), 4.40, 4.45, 4.59; Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting lay evidence is competent with regard to facts perceived through the use of the five senses); Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). The September 2017 examiner indicated that there was no objective evidence of pain on examination. During the January 2013 VA examination, however, the examiner recorded that there was pain on flexion five degrees prior to the endpoint of 145 degrees and that there was a five-degree loss of range of motion on flexion during repetitive use testing. Accordingly, the Board finds that the minimum disability rating of 10 percent for painful motion is warranted. The Board must also consider the other diagnostic codes related to the elbow to determine whether an increased disability rating, or an additional separate compensable rating, is warranted for the Veteran’s service-connected right elbow disability. In addition to the diagnostic codes discussed above, Diagnostic Code 5205 pertains to ankylosis of the elbow, 5209 pertains to other impairment of the elbow, 5210 pertains to nonunion of the radius and ulna with flail false joint, 5211 pertains to impairment of the ulna, and 5212 pertains to impairment of the radius. 38 C.F.R. § 4.71a, Diagnostic Codes 5205, 5209–5212. As there is no evidence of record pertinent to the diagnostic criteria under these diagnostic codes, a higher or separate disability rating under any of these diagnostic codes is not permitted. Furthermore, there are no other symptoms raised by the record not contemplated by the diagnostic criteria for the diagnostic codes discussed above. 2. Entitlement to a disability rating in excess of 20 percent for residuals of a cervical spine injury. The Veteran seeks an increased disability rating for his service-connected residuals of a cervical spine injury, and the Board concludes that an evaluation in excess of 20 percent is not warranted but that a separate disability rating of 20 percent, but not higher, for left upper extremity radiculopathy (as impairment of the upper radicular group) is supported by the record. The Veteran’s residuals of a cervical spine injury are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, currently evaluated as 20 percent disabling. Under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, ratings for the cervical spine are assigned as follows: A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Additional notes are as follows: Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Per Note (6), intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months warrants a 10 percent evaluation. A 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when 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 rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5243. The Formula for Rating IVDS has the following notes: Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If IVDS is present in more than one spinal segment, provided that the affects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. On VA examination in October 2015, the Veteran demonstrated forward flexion from 0 to 35 degrees, extension from 0 to 25 degrees, right and left lateral flexion from 0 to 25 degrees, and right and left lateral rotation from 0 to 25 degrees which resulted in a problem moving his neck. He was able to perform repetitive use without additional loss of function or range of motion. Also, pain, weakness, fatigability, or incoordination did not limit functional ability or result in loss of range of motion, or limit functional ability on flare-ups. There was no ankylosis or neurological deficits. The examiner found that there was no IVDS. A diagnosis of degenerative arthritis was noted. Most recently, in September 2017, the Veteran was afforded a VA examination for neck (cervical spine) conditions, during which it was noted that he was diagnosed with residuals of cervical spinal injury in 1992. The Veteran reported having constant neck pain that radiated down the left arm to the hand/finger tips, which caused numbness and tingling in the left fingers/hand. He reported seeing his primary care physician regularly and taking anti-inflammatories and muscle relaxers with minimal relief. He reported having done physical therapy and acupuncture in the past for it. He reported that flare-ups of pain prevented him from sitting for extended periods of time, which was required for his work using a computer, and they prevented him from doing some activities of daily living. He reported, additionally, he was unable to turn his neck and head when driving. On initial range of motion testing, forward flexion was to 25 degrees; extension was to 20 degrees; right lateral flexion was to 25 degrees; left lateral extension was to 25 degrees; right lateral rotation was to 55 degrees; and left lateral rotation was to 60 degrees. It was recorded that pain was noted on the examination in extension and bidirectional lateral rotation, but it did not result in or cause functional loss. It was noted that there was objective evidence of localized tenderness on palpation at C4-5, C5-6, which was minimal. It was indicated that there was no evidence of pain with weight bearing, and there was no additional loss of function or range of motion after three repetitions. It was noted that the Veteran was not examined after repetitive use over time or during a flare-up, and it was stated that it would be mere speculation to estimate any reduction in range of motion during those times. It was noted that the Veteran had muscle spasm of the cervical spine not resulting in abnormal gait or abnormal spinal contour. It was recorded that muscle strength was normal, and the Veteran did not have muscle atrophy. It was recorded that the reflex and sensory examinations were normal. It was recorded that the Veteran had radicular pain in the left upper extremity, involving the C5/C6 nerve roots (upper radicular group), evaluated as moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. It was indicated that the radiculopathy was mild. It was indicated that there was not ankylosis of the spine and that the Veteran did not have IVDS of the cervical spine. The Veteran reported that in the last 12 months he lost zero to one week of work time from his job as a VA operations manager. He reported that his neck condition made it difficult to sit at a desk to work on the computer for the amount of time required to complete necessary tasks. The examiner stated that passive range of motion for the neck was not feasible to do in a safe and reasonable manner, that non-weight bearing assessment was not applicable, and that the spine does not have an opposing joint to test. The Veteran’s VA medical records show that since the September 2017 VA examination he received treatment for pain management related to his cervical spine. Examination notes were consistent with the report of the September 2017 VA examination. The Board finds that a disability rating in excess of 20 percent for the Veteran’s service-connected residuals of a cervical spine injury is not warranted. The medical evidence shows that his cervical spine disability was not manifested by forward flexion to 15 degrees or less, ankylosis of the entire cervical spine, or incapacitating episodes. Indeed, on initial range of motion testing, forward flexion was to 25 degrees with no additional loss of function after three repetitions. It was expressly found that the muscle spasm present did not result in abnormal gait or abnormal spinal contour; there was not ankylosis; and the Veteran did not have IVDS. In addition to schedular criteria, the Board has considered functional loss due to flare-ups of pain, weakness, fatiguability, incoordination, pain on movement, and lack of endurance. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran competently and credibly reported pain with prolonged sitting to work on a computer, however, the Board finds the objective medical findings more probative. See 38 C.F.R. §§ 3.159(a), 4.40, 4.45, 4.59; Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting lay evidence is competent with regard to facts perceived through the use of the five senses); Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). The examination evidence does not show any functional loss in terms of loss of range of motion due to repetitive use, repetitive use over time, or during flare-ups, and the Veteran does not contend otherwise. The Board acknowledges the Veteran’s report of constant pain. Pain alone, however, is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36–8 (2011). A disability rating of 20 percent contemplates the Veteran’s functional loss since his range of motion of the cervical spine fell squarely between greater than 15 degrees but not greater than 30 degrees. The Board finds that the Veteran was not so limited by the factors noted in DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59 as to constitute forward flexion of the cervical spine 15 degrees or less, ankylosis of the entire cervical spine, or incapacitating episodes. Accordingly, the Veteran’s functional loss does not more nearly approximate the criteria for an increased rating. The Board has also considered whether a separate evaluation is warranted for any neurological deficits and finds that a separate disability rating of 20 percent, but not higher, for left upper extremity radiculopathy (as upper radicular group impairment) is warranted. Impairment of the upper radicular group (fifth and sixth cervicales) is rated under 38 C.F.R. § 4.124a, Diagnostic Codes 8510 (paralysis), 8610 (neuritis), and 8710 (neuralgia). As the Veteran is right-hand dominant, the evaluation here will be for the minor (non-dominant) extremity. Under these diagnostic codes, for the minor extremity, mild incomplete paralysis warrants a 20 percent disability rating; moderate incomplete paralysis warrants a 30 percent disability rating; sever incomplete paralysis warrants a 40 percent disability rating; and complete paralysis with all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected, warrants a 60 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Codes 8510, 8610, 8710. An accompanying note to the schedule of ratings for diseases of the peripheral nerves directs that the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Additionally, an accompanying note directs that neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. The Board finds that the Veteran’s disability picture for a separate disability rating for left upper extremity radiculopathy most nearly approximates mild incomplete paralysis of the non-dominant upper radicular group, warranting a disability rating of 20 percent, but not higher. The examiner noted the presence of constant as well as intermitted pain, the presence of paresthesias and/or dysesthesias, and numbness, which was characterized as mild radiculopathy. The Board notes that, while the Veteran reported numbness and tingling in his left hand and fingers, he did not attribute these symptoms to the production of functional loss of the left hand or arm. His complaint of interference with activities concerned the ability to sit for extended periods to do computer work. Indeed, testing for muscle strength, reflexes, and sensory were all normal. Hence, the Veteran’s left upper extremity radiculopathy is not manifested as moderate incomplete paralysis of the upper radicular group, and a separate disability rating in excess of 20 percent is not warranted. Accordingly, a separate disability rating of 20 percent, but not higher, for left upper extremity radiculopathy (as upper radicular group impairment) is granted. 38 C.F.R. § 4.124a, Diagnostic Code 8510. 3. Entitlement to a disability rating for recurrent muscle strain of the lumbar spine in excess of 20 percent prior to September 6, 2017, and in excess of 40 percent thereafter. The Veteran seeks an increased disability rating for his service-connected recurrent muscle strain of the lumbar spine, and the Board concludes that an increase is not warranted. The Veteran’s recurrent muscle strain of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, currently evaluated as 20 percent disabling prior to September 6, 2017, and as 40 percent disabling thereafter. Under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, ratings for the thoracolumbar spine are assigned as follows: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The additional notes and the disability rating criteria for IVDS are stated above under the evaluation of the Veteran’s cervical spine disability. Prior to September 6, 2017 In October 2015, the Veteran was afforded a VA examination for back (thoracolumbar spine) conditions, during which degenerative arthritis of the spine and spondylosis were diagnosed. The Veteran reported low back pain that woke him at night and that, during flare-ups affected his running and excessive walking. On initial range of motion testing, forward flexion was to 35 degrees; extension was to 10 degrees; right lateral flexion was to 15 degrees; left lateral flexion was to 15 degrees; right lateral rotation was to 15 degrees; and left lateral rotation was to 15 degrees. It was noted that there was pain in all directions of motion, which caused functional loss. It was indicated that there was no evidence of pain with weight bearing, and there was not objective evidence of localized tenderness on palpation. It was noted that there was no additional loss of function on repetitive use testing. It was indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time or during flare-ups. It was noted that there was disturbance of locomotion, interference with sitting, and interference with standing. It was indicated that muscle strength testing was normal and that there was no muscle atrophy; reflex and sensory examinations were normal; and straight leg raising test was negative. It was indicated that there was no radiculopathy or ankylosis of the spine. It was indicated that there were no neurologic abnormalities and that the Veteran did not have IVDS. It was noted that the functional impact on the Veteran’s ability to work concerned problems sitting, standing, and walking. Based upon careful review of the foregoing, the Board finds that, prior to September 6, 2017, an evaluation in excess of 20 percent disabling for the Veteran’s recurrent muscle spasm of the lumbar spine is not warranted. The medical and lay evidence does not establish that that the Veteran’s back disability was manifested by forward flexion to 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes. Indeed, during the examination, the Veteran’s forward flexion was to 35 degrees with pain and without further reduction in range of motion after repetitive use testing. It was noted that there was not ankylosis, and in all other regards, testing was normal. In addition to schedular criteria, the Board has considered functional loss due to flare-ups of pain, weakness, fatiguability, incoordination, pain on movement, and lack of endurance. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran competently and credibly reported back pain waking him at night, disturbances of locomotion, and interference with sitting and standing; however, the Board finds the objective medical findings more probative. See 38 C.F.R. §§ 3.159(a), 4.40, 4.45, 4.59; Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting lay evidence is competent with regard to facts perceived through the use of the five senses); Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). During repetitive use testing, the Veteran’s range of motion testing was unchanged. Furthermore, the Veteran did not allege that he had reduced range of motion during flare-ups of pain or after repetitive use over time. Prior to September 6, 2017, a disability rating of 20 percent contemplates the Veteran’s functional loss since his range of motion for forward flexion fell squarely as greater than 30 degrees but not greater than 60 degrees. The Board acknowledges the Veteran’s repeated complaints of constant pain. Pain alone, however, is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36–8 (2011). The Board finds that, prior to September 6, 2017, the Veteran was not so limited by the factors noted in DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59 as to constitute forward flexion of the thoracolumbar spine to 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes. Accordingly, the Veteran’s functional loss does not more nearly approximate the criteria for an increased rating. The Board has also considered whether, prior to September 6, 2017, a separate evaluation is warranted for any neurological deficits. The evidence, however, specifically shows that there were no neurological abnormalities found during examination. Beginning September 6, 2017 In September 2017, the Veteran was afforded a new VA examination for back (thoracolumbar spine) conditions, during which lumbosacral strain and degenerative arthritis of the spine were diagnosed. The Veteran reported sharp pain that radiated from his neck up to his scalp on the left side, diminished range of motion, and pain with lying down. He reported that physical therapy exacerbated symptoms and that epidural relieved symptoms. He reported an inability to stand for long periods or to walk or drive for extended times. On initial range of motion testing, forward flexion was to 15 degrees; extension was to 30 degrees; right lateral flexion was to 30 degrees; left lateral flexion was to 30 degrees; right lateral rotation was to 30 degrees; and left lateral rotation was to 30 degrees. It was noted that there was pain with motion that did not cause functional loss on forward flexion, extension, and bilateral lateral flexion. It was indicated that there was no additional loss of function or range of motion after three repetitions. It was noted that there was localized tenderness on palpation of the bilateral L4-5 paraspinal muscles, with spasm and hypertonicity. The Veteran reported the severity as 6-7/10, occurring daily on an intermittent basis, which limited most activity and intimacy with his spouse. It was noted that there was muscle spasm not resulting in abnormal gait or abnormal spinal contour. Muscle strength testing produced the following results for the right side: hip flexion 4/5; knee extension 3/5; ankle plantar flexion 2/5; ankle dorsiflexion 2/5; great toe extension 2/5. For the left side: hip flexion 4/5; knee extension 3/5; ankle plantar flexion 3/5; ankle dorsiflexion 3/5; great toe extension 3/5. It was indicated that there was no muscle atrophy. On the reflex examination, both sides were hypoactive at both the knee and ankle. It was indicated that sensory testing was normal and that straight leg raising testing was negative. It was indicated that the Veteran did not have radicular pain or any other symptom of radiculopathy. It was indicated that there was no ankylosis of the spine and that the Veteran did not have IVDS. It was noted that the Veteran reported working as a VA assistant manager and that, in the last 12 months, he missed zero to one week of work time. The examiner stated that passive range of motion for the back was not feasible to do in a safe and reasonable manner, that non-weight bearing assessment was not applicable, and that the spine does not have an opposing joint to test. The Veteran’s VA medical records show that since the September 2017 VA examination he received treatment for pain management related to his lumbar spine. Examination notes were consistent with the report of the September 2017 VA examination. Based upon a careful review of the foregoing, the Board finds that beginning September 6, 2017, an evaluation in excess of 40 percent disabling for the Veteran’s recurrent muscle strain of the lumbar spine is not warranted. The medical evidence does not establish that the Veteran’s lumbar spine disability was manifested by ankylosis of the entire thoracolumbar spine or incapacitating episodes. Indeed, during the examination, the Veteran’s forward flexion was 15 degrees with objective evidence of pain and with no additional loss of range of motion on repetitive use testing. It was expressly noted that there was not ankylosis and that the Veteran did not have IVDS. In addition to schedular criteria, the Board has considered functional loss due to flare-ups of pain, weakness, fatiguability, incoordination, pain on movement, and lack of endurance. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran competently and credibly reported pain with lying down, inability to stand for long periods, and inability to walk or drive for extended times; however, the Board finds the objective medical findings more probative. See 38 C.F.R. §§ 3.159(a), 4.40, 4.45, 4.59; Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting lay evidence is competent with regard to facts perceived through the use of the five senses); Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). During repetitive use testing, the Veteran’s forward flexion was unchanged from the initial range of motion testing. The Board notes that the Veteran’s muscle strength was diminished, but there is no evidence that this resulted in additional functional loss such as reduction of range of motion equating to ankylosis of the entire thoracolumbar spine. The Veteran does not contend otherwise. Accordingly, a disability rating of 40 percent contemplates the Veteran’s functional loss since his range of motion for forward flexion is clearly 30 degrees or less. The Board acknowledges the Veteran’s repeated complaints of constant pain. Pain alone, however, is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36–8 (2011). The Board finds that, beginning September 6, 2017, the Veteran was not so limited by the factors noted in DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59 as to constitute ankylosis of the entire thoracolumbar spine or incapacitating episodes. Accordingly, the Veteran’s functional loss does not more nearly approximate the criteria for an increased rating. The Board has also considered whether, beginning September 6, 2017, a separate evaluation is warranted for any neurological deficits. The evidence, however, specifically shows that there were no neurological abnormalities found during examination. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 4. Entitlement to a disability rating in excess of 10 percent for residuals of a right ankle strain. 5. Entitlement to a disability rating in excess of 10 percent for residuals of left ankle strain. The Veteran seeks increased disability ratings for his service-connected residuals of right and left ankle strains. The Board concludes that as to each of the Veteran’s service-connected ankle disabilities, his disability picture more nearly approximates an evaluation of 20 percent disabling, the maximum based on limited motion. Here, the Veteran’s service-connected residuals of right and left ankle strains are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Disabilities of the ankle are evaluated under diagnostic codes 5270 through 5274. 38 C.F.R. § 4.71a, Diagnostic Codes 5270–5274. As the evidence discussed below fails to show ankylosis of the ankle, ankylosis of subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy, Diagnostic Codes 5270 (ankle, ankylosis), 5272 (subastragalar or tarsal joint, ankylosis), 5273 (os calcis or astragalus, malunion), and 5274 (astragalectomy) do not apply. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272–5274. Under Diagnostic Code 5271, a 10 percent evaluation is warranted for moderate limitation of motion of the ankle. A higher evaluation, 20 percent, which is the maximum, is warranted where there is marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Codes 5271. Pursuant to VA regulations, normal range of motion for ankle dorsiflexion is 0 to 20 degrees and for plantar flexion is 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. In October 2015, the Veteran was afforded a VA examination for his service-connected bilateral ankle disabilities, during which it was noted that the Veteran’s ankles hurt from time to time. It was indicated that the Veteran reported not having flare-ups or any functional loss of his ankles. It was recorded that initial range of motion testing and repetitive use testing of both ankles was normal and that there was no pain noted on examination. It was recorded that there was no pain on weight bearing, no localized tenderness on palpation, and no objective evidence of crepitus. Muscle strength testing was normal, there was not muscle atrophy, and there was not ankylosis. It was indicated that ankle instability or dislocation were not suspected. No other physical findings were noted. It was recorded that the Veteran constantly used a cane for stability. The Veteran’s VA medical records show that in July 2017, due to ankle instability, he was fitted for two pairs of orthopedic shoes, two pairs of custom molded orthopedic inserts, and one left surgical shoe. In September 2017, the Veteran was afforded a VA examination for his service-connected bilateral ankle disabilities, during which it was noted that residuals of bilateral ankle strains was diagnosed in 1992. It was noted that there was instability of both ankle joints; the Veteran used a cane occasionally and braces constantly as needed and wore orthotic shoes; he reported that the ankles frequently gave out and had swelling, cracking, and popping; and that he took medications as prescribed. He reported being unable to flex or extend his feet such that he walked with a flat-foot motion, and he had daily, chronic pain. The Veteran reported flare-ups that caused loss of full range of motion and loss of full weight bearing capacity, which affected his ability to move quickly such as being punctual at work and when engaged with family. He reported that he was unable to walk without pain and unable to lift anything heavy. On initial range of motion testing of the right ankle, dorsiflexion was to 10 degrees and plantar flexion was to 10 degrees, during which pain was noted on examination in both directions but it did not result in or cause functional loss. It was noted that the lateral right ankle joint was tender to palpation, evidence of pain on weight bearing, and objective evidence of crepitus. It was recorded that muscle strength in both directions was 2/5. It was noted that there was muscle atrophy located two centimeters above the medial malleolus of the right lower extremity. On initial range of motion testing of the left ankle, dorsiflexion was to 10 degrees and plantar flexion was to 20 degrees, during which pain was noted on examination in both directions but it did not result in or cause functional loss. It was noted that the lateral left ankle joint was tender to palpation, and the Veteran reported pain of 7/10. It was noted that there was evidence of pain on weight bearing, and objective evidence of crepitus. It was recorded that muscle strength in both directions was 3/5, and it was noted that this reduction in strength was partly due to an unrelated orthopedic or medical condition. The Veteran was not able to do repetitive use testing with either ankle due to fear of pain. It was indicated that there was not ankylosis or ankle instability on either side. It was indicated that the Veteran did not have stress fracture of the lower leg, achilles tendonitis or achilles tendon rupture, malunion of calcaneus or talus, or talectomy. It was recorded that the Veteran had had bilateral shin splints that did not affect the range of motion of either the ankles or knees. It was noted that he had pain with weight bearing movement, swelling most mornings, daily pain with movement, as well as cracking and popping of joints. It was indicated that imaging studies did not document degenerative or traumatic arthritis. Based upon a careful review of the foregoing, the Board finds that the evidence of record establishes that, beginning September 6, 2017, the Veteran’s disability picture for residuals of right and left ankle strains more nearly approximates the criteria for a 20 percent disability rating, which is the maximum allowed under Diagnostic Code 5271. During the September 2017 VA examination, the range of motion of the Veteran’s ankles was at best fifty percent of normal in both directions with evidence of pain. Due to concerns over pain during the examination, the Veteran did not perform repetitive use testing. The evidence shows that due to bilateral ankle instability the Veteran wears prescribed footwear and uses a cane. The Veteran reported daily swelling of the ankles such that he was not able to flex them resulting in flat-foot walking, and chronic pain. The examiner noted localized tenderness on palpation on each ankle and muscle atrophy on the right side. There was reduced strength in both ankles and objective evidence of crepitus. Hence, the Board finds that the Veteran’s residuals of right and left ankle strains manifested as marked limitation of motion of the ankle, and the maximum disability rating of 20 percent is warranted. The Board must also consider the other diagnostic codes related to the ankle to determine whether an increased disability rating, or an additional separate compensable rating, is warranted for the Veteran’s service-connected residuals of right and left ankle strains. Diagnostic Code 5270 pertains to ankylosis of the ankle, 5272 pertains to ankylosis of subastragalar or tarsal joint, 5273 pertains to malunion of os calcis or astragalus, and 5274 pertains to astragalectomy. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272–5274. As there is no evidence of record pertinent to the diagnostic criteria under these diagnostic codes, a higher or separate disability rating under any of these diagnostic codes is not permitted. Furthermore, there are no other symptoms raised by the record not contemplated by the diagnostic criteria for the diagnostic codes discussed above. Because there is medical evidence of record that the Veteran has had bilateral shin splints, the Board has considered a disability rating under Diagnostic Code 5262, which evaluates the impairment of the tibia and fibula. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Diagnostic Code 5262 provides for a 10 percent disability rating when there is malunion with slight knee or ankle disability; a 20 percent disability rating when there is malunion with moderate knee or ankle disability; and a 30 percent disability rating when there is malunion with marked knee or ankle disability. A 40 percent disability rating, the maximum, is warranted when there is nonunion of the tibia and fibula with loose motion, requiring brace. Id. After careful consideration, the Board finds that evaluating the Veteran’s residuals of right and left ankle strains under Diagnostic Code 5262 is not supported by the medical evidence. While the September 2017 VA examiner noted that the Veteran had had shin splints, the examiner indicated that this condition did not affect the range of motion of either the ankles or knees. Hence, the only proper diagnostic code for evaluating the Veteran’s bilateral ankle disability is Diagnostic Code 5271, based upon limited motion of the ankle, and the maximum disability rating of 20 percent is warranted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss, to include as due to service-connected chronic sinusitis, is remanded. The Veteran contends that his bilateral hearing loss is the result of in-service noise exposure, particularly from the engines of C 130 aircraft over the course of a thirteen-year active military career, equating to more than 3,800 flying hours, and as such, he seeks service connection. The Veteran’s military personnel records show that while he was on active duty he rose to the level of C 130 evaluator loadmaster, responsible for C 130 aircraft loadmaster training. His service treatment records show that by August 1991 he had 3,800 flying hours. The hearing conservation data from his service treatment records show that his audiograms indicated normal hearing acuity. His service treatment records show a long history of ear, nose, and throat complaints related to allergies (treated with immunotherapy), sinusitis, and viral upper respiratory infections, which included ear aches, ringing in the ears, and an inability to clear the ears while flying. The Board notes that the Veteran is service-connected for chronic sinusitis, effective the date after separation from service. In January 1993, the Veteran was afforded a VA examination for hearing loss, during which his hearing was found to be within normal limits. The Veteran reported tinnitus, which was service-connected effective the date after discharge from service. In February 2009, the Veteran was afforded a VA examination during which bilateral sensorineural hearing loss was diagnosed, which met the criteria for disability for VA purposes. See 38 C.F.R. § 3.385. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 35 50 LEFT 25 25 35 35 35 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear. The Veteran’s VA medical records show that in September 2014 he received a set of hearing aids. The Veteran was afforded a VA examination in October 2015, and pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 55 65 70 LEFT 35 35 55 65 75 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. In September 2017, the Veteran was afforded another VA examination. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 65 75 75 LEFT 40 40 60 65 75 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. The examiner noted that the Veteran was service-connected for tinnitus. The examiner indicated, no, that the Veteran’s bilateral hearing loss was at least as likely as not caused by or the result of an event in military service. The explanation provided was: “According to the American College of Occupational Medicine Noise and Hearing Conservation Committee, ‘a noise induced hearing loss will not progress once it is stopped.’ Therefore, it is my opinion that the Veteran’s current hearing loss is less likely than not related to military noise exposure/acoustic trauma.” In a separate opinion, the examiner indicated that the Veteran’s bilateral hearing loss was less likely than not proximately due to or the result of the Veteran’s service-connected tinnitus. It was stated: “Although the Veteran experiences tinnitus, hearing loss that is secondary to tinnitus is often termed ‘hidden hearing loss’ because it is not measurable, but rather perceived hearing loss when having to listen in the presence of noise (tinnitus). The hearing loss measured by audiometric assessment as portrayed by today’s testing is a result of cochlear damage of unknown etiology, which began after discharge from active duty.” The Board finds the opinion in the September 2017 VA examination report inadequate for failing to provide a well-articulated rationale for the opinion, citing to the record and providing a medical explanation that the Board can utilize in making a fully informed decision. See Nieves–Rodriguez v. Peake, 22 Vet. App. 295, 300–04 (2008); Barr v. Nicholson, 21 Vet. App. 303, 307–11 (2007); Prejean v. West, 13 Vet. App. 444, 448–49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Particularly, the medical resource to which the examiner cited stated that evidence was insufficient to make a conclusion on whether hearing loss due to noise progresses once the noise exposure is discontinued, but it was opined that it was unlikely that delayed effects occurred. Accordingly, the examiner’s opinion is not supported by the medical literature. Likewise, the examiner’s opinion concerning the relationship, if any, between the Veteran’s hearing loss and service-connected tinnitus does not fully inform the Board. The medical resource cited by the examiner states that tinnitus is an early warning symptom of noise-induced hearing loss, citing RA Dobie, Structure and Function of the Ear, Medical-Legal Evaluation of Hearing Loss (RA Dobie, ed. 2d ed. 2001). As tinnitus being a known symptom of hearing loss, to the uninformed, the presence of tinnitus during service suggests that the deterioration of the Veteran’s hearing acuity may have begun while in service prior to it being detected during testing. Additionally, the examiner did not address neither the degree of normal hearing loss expected for someone of the Veteran’s age nor the rate at which his hearing acuity has deteriorated since service. Furthermore, the examiner did not address the Veteran’s ongoing need for in-service treatment of ear, nose, and throat ailments, which resulted in service connection for chronic sinusitis, and the impact, if any, on the Veteran’s hearing acuity. Ultimately, the examiner did not identify any other reasonable explanation based upon the evidence of record for the Veteran’s hearing loss. Hence, on remand, the Veteran must be afforded another VA examination to determine the etiology of his present bilateral hearing loss, taking into account his statements about noise exposure, onset of symptoms, the record evidence, and accepted medical principles. The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the etiology of his present bilateral hearing loss. The electronic claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay statements; the examiner must indicate on the examination report that such review was undertaken. The audiometry examination must include a speech recognition test using the Maryland CNC wordlist and a puretone audiometry test. Any and all studies, tests, and evaluations deemed necessary by the examiner should also be performed. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology and in-service noise exposure. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner must provide an opinion: (a) whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s present bilateral hearing loss disability was caused or aggravated by his active service, including noise exposure therein; and (b) whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s present bilateral hearing loss disability was caused by or aggravated by his service-connected chronic sinusitis. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss that results from noise exposure generally presents or develops in most cases, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. The examiner is asked to address: (1) the Veteran’s in-service onset of tinnitus as a possible symptom of deteriorating hearing acuity prior to measurable hearing loss; (2) the expected hearing acuity for someone of the Veteran’s age; (3) the significance, if any, to the rate of deterioration in the Veteran’s hearing acuity; and (4) whether there are any other reasonably identifiable causes of the Veteran’s hearing loss other than his inservice exposure to jet engine noise that exceeded 3,800 flying hours. A thorough explanation for any opinion must be provided. The examiner should note that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page)   2. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney