Citation Nr: 1807994 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-05 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right foot disability, to include as secondary to service-connected disability, and, if so, whether service connection is warranted. 2. Entitlement to service connection for a left foot disability, to include as secondary to service-connected disability. 3. Entitlement to a disability rating in excess of 60 percent for fracture of the left pelvis status post open reduction internal fixation with left hip degenerative joint disease (left hip disability) prior to October 3, 2017. 4. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease (DJD). 5. Entitlement to a disability rating in excess of 10 percent for left knee DJD. 6. Entitlement to a compensable initial disability rating for leg length discrepancy. 7. Entitlement to a compensable initial disability rating for hypertension. 8. Entitlement to a compensable initial disability rating for a residual scar associated with a left hip disability (left hip scar). 9. Entitlement to a disability rating in excess of 30 percent for temporomandibular joint (TMJ) syndrome status post left mandible fracture prior to July 1, 2010, a disability rating in excess of 10 percent from July 1, 2010, to February 13, 2012, and in excess of 20 percent from February 14, 2012, to include whether the reduction from 30 percent to 10 percent effective July 1, 2010, was proper. 10. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). 11. Entitlement to an effective date earlier than March 26, 2010, for the award of a total schedular disability rating. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1978 to September 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2010, April 2010, January 2012, May 2012, and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office. In September 2017, the Veteran testified at a Board Central Office hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that, during the September 2017 hearing, the Veteran and her representative raised the issue of whether there was clear and unmistakable error (CUE) in prior decisions by the Agency of Original Jurisdiction (AOJ). Upon review, the Board finds that no claim for CUE has been filed by the Veteran or her representative and, as such, cannot be on appeal before the Board. The Veteran is advised that, should she wish to pursue a claim for CUE, such claim must be submitted on the application form prescribed by the VA Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). FINDINGS OF FACT 1. The Veteran's claim for entitlement to service connection for a right foot disability was denied in a January 2006 rating decision. The Veteran did not timely appeal the decision or submit relevant evidence within the appeal period and, as such, that rating decision is final with respect to this issue. 2. Evidence submitted since the January 2006 rating decision is new and relates to unestablished facts necessary to substantiate the claim for service connection for a right foot disability. 3. The probative, competent evidence is against a finding that the Veteran has a current right foot disability. 4. The probative, competent evidence is against a finding that the Veteran has a current left foot disability. 5. During the pendency of the appeal, the Veteran's left hip disability manifested in pain and limitation of motion; there was no evidence of ankylosis, flail joint, or fracture of the shaft or anatomical neck of the femur with nonunion and with loose motion. 6. During the pendency of the appeal, the Veteran's right knee disability manifested in pain and limitation of motion, with flexion to, at worst, 105 degrees, and extension to, at worst, 5 degrees. 7. During the pendency of the appeal, the Veteran's left knee disability manifested in pain and limitation of motion, with flexion to, at worst, 90 degrees, and extension to, at worst, 5 degrees. 8. During the pendency of the appeal, the evidence demonstrates that the Veteran's leg length discrepancy was no more than 3 centimeters, but manifested in foot pain. 9. Throughout the pendency of the appeal, the Veteran's hypertension has required continuous medication, but has not manifested in diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 10. Throughout the pendency of the appeal, the Veteran's left hip scar manifested in pain, but was not unstable and was less than six square inches in area. 11. The evidence demonstrates that the Veteran's TMJ syndrome manifested in pain, difficulty chewing, and limitation of motion, but not limitation of motion such that the Veteran was restricted to 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, to 11 to 20 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods, or to 0 to 10 millimeters of maximum unassisted vertical opening; additionally, sustained improvement was not shown to justify the reduction of the Veteran's disability rating effective July 1, 2010. 12. The Veteran is in receipt of a total schedular evaluation throughout the period on appeal and the evidence does not reflect that any single service-connected disability renders her unemployable. 13. The Veteran's separate disability ratings did not combine to a total disability rating under the relevant regulations at any time prior to March 26, 2010. CONCLUSIONS OF LAW 1. The January 2006 rating decision is final with respect to the issue of entitlement to service connection for a right foot disability. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2005); currently 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2017). 2. Evidence submitted to reopen the claim for entitlement to service connection for a right foot disability is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for a right foot disability, to include as secondary to service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 4. The criteria for entitlement to service connection for a left foot disability, to include as secondary to service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for a disability rating in excess of 60 percent for a left hip disability have not been met. 38 U.S.C. §§ 1155, 5107 (2017); 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5255 (2017). 6. The criteria for a disability rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2017). 7. The criteria for a disability rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261. 8. The criteria for a 10 percent initial disability rating, but no higher, for leg length discrepancy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5275 (2017). 9. The criteria for a disability rating of 10 percent, but no higher, for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7101 (2017). 10. The criteria for a 10 percent disability rating, but no higher, for the Veteran's left hip scar have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7804-7805 (2017). 11. The criteria for restoration of a 30 percent disability rating for TMJ syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.150, Diagnostic Code 9905 (2017). 12. The criteria for a disability rating in excess of 30 percent for TMJ syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.150, Diagnostic Code 9905. 13. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1114, 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2017). 14. The criteria for an effective date earlier than March 26, 2010, for a combined total disability rating have not been met. 38 C.F.R. § 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that during the Veteran's September 2017 hearing her representative requested that the Board order a VA examination in connection with the Veteran's claims for entitlement to service connection for bilateral foot disabilities. Upon review, the Board notes that a VA examination was provided in relation to these claims in February 2012. As neither the Veteran nor her representative presented any argument as to the adequacy of this examination or presented any evidence rendering a new examination necessary, the Board finds remand for a new examination unnecessary. Additionally, during the September 2017 hearing, the Veteran indicated that she wished for the Board to make a decision regarding the increased ratings claims on appeal on the evidence of record rather than conducting any further development. Accordingly, the Board finds the Veteran has waived the right to have any further development conducted on her behalf with respect to these claims. Neither the Veteran nor her representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence The Veteran's initial claim for service connection for a right foot disability was denied in a January 2006 rating decision. As the Veteran did not appeal the rating decision nor submit relevant evidence within one year of the notification of the decision, the decision is final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2005); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The claim was again denied in August 2008, but the Veteran submitted new evidence within one year of that denial and the claim was again denied in January 2010. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen the claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection was denied in the January 2006 rating decision because the evidence did not demonstrate a current disability with a link to military service. The evidence received since that time includes lay testimony from the Veteran and medical records. A VA examination and opinion was also obtained. Such evidence is presumed credible solely for the purpose of determining whether new and material evidence has been submitted. See Justus, supra. Accordingly, the Board finds that new and material evidence has been received and the claim for service connection for a right foot disability is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) (2017) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established on a secondary basis for a disability that is shown to be either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran asserts that she has bilateral foot disabilities related to service or, alternatively, which have been caused or aggravated by her service-connected disabilities, including a leg length discrepancy. The Board notes that Congress specifically limits entitlement for service-connected disease or injury to cases where there is a current disability. See 38 U.S.C. §§ 1110, 1131. Upon review, the Board finds that the evidence does not demonstrate that the Veteran has any current disability of the feet. The Veteran underwent VA examination in connection with these claims in February 2012. The examiner found no diagnosis of a disability of either foot, and there were no abnormal findings on x-ray. The examiner did note, however, that the Veteran reported foot pain which was likely related to her service-connected leg length discrepancy, which required her to wear orthotics. Upon review, the Board finds that the only evidence to suggest the existence of this disability is the contention of the Veteran. To the extent that the Veteran asserts that her service-connected disabilities cause pain and limitation of function of the feet, the Board notes that pain, alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute disability for which service connection may be granted. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) appeal dismissed in part, and vacated and remanded in part, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). To the extent that the Veteran has contended that she has a current disability, she has not shown competence that she has specialized training sufficient to diagnose or determine the etiology of such. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Although the Veteran is competent to report pain, the diagnosis of a foot disability is not capable of lay observation, and requires medical expertise to determine. Accordingly, her opinion as to whether a disability of the feet exists is not competent evidence. Moreover, to the extent that her symptoms are being caused by service-connected disabilities, she is now in receipt of service-connected compensation for such disabilities as discussed below. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Thus, in the absence of competent evidence showing current diagnoses, it is unnecessary to address the remaining elements of the claims for service connection. See Brammer, 3 Vet. App. at 225. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and service connection for disabilities of the feet is denied. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Left Hip Disability Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal exertion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). In that regard, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's left hip disability, which stems from an in-service left pelvis fracture, is currently rated as 60 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5255. The Board notes that the Veteran underwent a total left hip replacement on October 3, 2017. She has been awarded a temporary total rating from that date through November 30, 2018, as well as special monthly compensation at the housebound rate. As she is in receipt of the maximum benefit from October 3, 2017, the Board will only determine the appropriate rating for the period prior to that date. Preliminarily, the Board notes that Diagnostic Code 5003 addresses degenerative arthritis and provides that such disability should be rated based upon limitation of motion unless the disability would be rated as noncompensable. Diagnostic Code 5255 refers to impairment of the femur, and provides for a 60 percent disability rating for fracture of the surgical neck of the femur with a false joint, or for fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, and with weightbearing preserved with aid of a brace. A maximum 80 percent disability rating is warranted for fracture of the shaft or anatomical neck of the femur with nonunion and with loose motion (a spiral or oblique fracture). The highest rating available based on malunion is 30 percent. 38 C.F.R. § 4.71a. Other Diagnostic Codes also apply to impairment of the hip and thigh. Diagnostic Codes 5251, 5252, and 5253 address limitation of motion, but provide for maximum ratings of 10 percent, 40 percent, and 20 percent, respectively. As discussed below, the Board finds the assignment of additional disability ratings for limitation of motion would constitute pyramiding and the assignment of one of more of these codes in the alternative would result in a lower rating than is currently assigned; as such, discussion of these criteria is unnecessary. Diagnostic Code 5250 provides for a 70 percent disability rating for intermediate ankylosis of the hip, and a 90 percent disability rating for extremely unfavorable ankylosis of the hip with the foot not reaching the ground and crutches necessary. Finally, Diagnostic Code 5254 provides for an 80 percent disability rating for flail joint. See 38 C.F.R. § 4.71a. Range of motion testing was performed during VA examinations in February 2012, October 2016, and March 2017. Range of motion testing revealed, at worst flexion to 85 degrees, extension to 10 degrees, abduction to 20 degrees, adduction to 20 degrees, external rotation to 25 degrees, and internal rotation to 20 degrees. While at one examination left hip adduction was noted to be limited such that the Veteran could not cross her legs, the examiner further explained that this limitation was due to the Veteran's body habitus. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The report does not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's lay statements. In fact, the March 2017 examination was noted to have been conducted during a flare-up. While the Veteran has essentially stated that she has reduced motion in her hip, she has not described a range of motion less than that found on examination. In this regard, during the examinations she did report flare-ups, but described the flare-ups as consisting of increased pain and, at times, a grinding sensation in the joint. The Veteran's statements do not show the requisite symptoms necessary for a higher or separate rating, and she is already in receipt of a disability rating equivalent to the rating she would receive if she had maximum limitation of motion in each range. Treatment records do not show greater limitation of motion or different symptoms than the examination findings. There was no evidence of ankylosis, flail joint, or femur impairment commensurate with a higher rating. Given the above, a higher or separate rating is not warranted based on limitation of motion or other symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5005, 5250-5255. In reaching this conclusion, the Board has considered whether the assignment of an additional disability rating under one or more of the limitation of motion Diagnostic Codes is appropriate, but finds that doing so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14 (2017). In that regard, it appears that the Veteran's disability was rated by analogy due to the lack of Diagnostic Code specifically addressing pelvic fracture. However, it is clear that the primary manifestation of the Veteran's pelvic fracture is a left hip disability resulting in pain and limitation of motion, which the Board finds are fully contemplated by the currently assigned rating; as such, additional limitation of motion ratings are not permissible. Furthermore, while the Diagnostic Codes for limitation of motion of the hip may more appropriately describe the Veteran's disability, as the assignment of such could not result in a more favorable, or even an equivalent, disability rating, the Board is not permitted to change the Diagnostic Code. Bilateral Knee Disabilities The Veteran's bilateral knee disabilities are each currently rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5010 addresses traumatic arthritis and directs the rater to rate the condition as degenerative arthritis. As noted above, Diagnostic Code 5003 addresses degenerative arthritis, and provides that arthritis should be rated based on limitation of motion of the specific joints unless limitation of motion would be noncompensable, in which case Diagnostic Code calls for a 10 percent disability rating for x-ray evidence of involvement of two or more major joints, or for a 20 percent rating with x-ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See 38 C.F.R. § 4.71a; VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1704 (Nov. 29, 2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2017). Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. As in this case, a 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003. Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can be assigned when the knee disability affects the meniscus, for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect and the Veteran does not allege that she has meniscal impairment, tibia or fibula impairment, genu recurvatum, or ankylosis. As such, these Diagnostic Codes are not for application. Range of motion testing was performed during VA examinations in February 2012, October 2016, and March 2017. Range of motion in the right knee was at worst 105 degrees of flexion and 5 degrees of extension. Range of motion in the left knee was at worst 90 degrees of flexion and 5 degrees of extension. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The report does not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's lay statements. In fact, the October 2016 and March 2017 examinations were noted to have been conducted during flare-ups. While the Veteran has essentially stated that she has reduced motion in his knee, she has not described a range of motion less than that found on examination. In this regard, during the examinations she did report flare-ups, but described the flare-ups as consisting of increased pain and occasional "buckling." The Veteran's statements do not show the requisite limitation of motion necessary for a higher or separate rating. Treatment records do not show greater limitation of motion than the examination findings. Given the above, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. While the Veteran has not specifically reported experiencing instability of her knees, she has reported "buckling." However, the only joint stability testing of record was at the VA examinations and showed no instability. While the Veteran may experience a feeling that her knee may give way or is unstable, the medical findings regarding instability, dislocation, and subluxation are more probative as to the actual presence of these conditions. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no instability or laxity. Hence, the evidence is against a separate rating for the knee under Diagnostic Code 5257. 38 C.F.R. § 4.71a. Accordingly, the Board finds that disability ratings in excess of 10 percent cannot be granted for the Veteran's bilateral knee disabilities. Leg Length Discrepancy The Veteran's leg length discrepancy is currently rated as noncompensable pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5275 for shortening of the bones of the lower extremity. Diagnostic Code 5275 provides for a 10 percent disability rating for shortening from 1.25 to 2 inches (3.2 centimeters to 5.1 centimeters), a 20 percent rating for shortening from 2 to 2.5 inches (5.1 centimeters to 6.4 centimeters), a 30 percent rating for shortening from 2.5 to 3 inches, a 40 percent rating for shortening from 3 to 3.5 inches, a 50 percent rating for shortening from 3.5 to 4 inches, and a 60 percent rating for shortening over 5 inches. In every instance where the rating schedule does not provide for a noncompensable evaluation, a noncompensable evaluation shall be assigned where the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2017). Upon review, the record reflects that the Veteran has a leg length discrepancy of, at most, 3 centimeters, measured frequently at VA examinations in connection with the above-discussed left hip and bilateral knee disabilities. However, the Board recognizes that the Veteran has asserted, and VA examiners have confirmed, that the Veteran's leg length discrepancy results in foot pain which does not result in a separate disability and is currently not addressed by any assigned disability rating. Accordingly, the Board finds that a 10 percent disability rating, but no higher, is warranted to compensate for the pain associated with this disability. See 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). While the Veteran has also alleged that this disability results in hip, knee, and back pain, such disabilities are already addressed by currently-assigned disability ratings. Hypertension The Veteran's hypertension is rated as noncompensable under the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7101, which provides that a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure predominantly 130 or more. As noted above, in every instance where the rating schedule does not provide for a noncompensable evaluation, a noncompensable evaluation shall be assigned where the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Veteran underwent VA examination in connection with her claim in February 2012. Her blood pressure readings were 160/88 lying down, 152/100 sitting, and 154/96 standing. The examiner noted that the Veteran required continuous medication to manage her hypertension, and opined that it did not impact her ability to work. Treatment records throughout the period on appeal reflect diastolic pressures ranging from approximately 65 to 100, although generally below 100, and systolic pressures ranging from approximately 114 to 181, although generally below 160. Upon review, the Board finds that a 10 percent disability rating, but no higher, is warranted for hypertension. In that regard, the Board notes that the Veteran's diastolic pressure occasionally ranged near or above 100 and, similarly, that her systolic pressures occasionally ranged near or above 160. Furthermore, she required medication to control her pressures. The Board cannot find, however, that a rating in excess of 10 percent is warranted. The evidence does not demonstrate diastolic pressures of 110 or more or any systolic pressures of 200 or more. The VA examiners noted only that the Veteran's hypertension was controlled with medication and did not affect her ability to work. Accordingly, a disability rating of 10 percent, but no higher, is granted. Left Hip Scar The Veteran's service-connected left hip scar is currently rated as noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7805, which provides only that disabling effects of scars not provided for by other diagnostic codes related to scars should be evaluated under an appropriate diagnostic code. Diagnostic Code 7804 pertains to evaluation of scars that are unstable or painful, with the assignment of a 10 percent rating for one or two such scars, a 20 percent rating for three or four scars, and a 30 percent rating for five or more scars. Note 1 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 provides that where one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars. Diagnostic Codes 7801 and 7802 provide for assignment of disability evaluations on the basis of surface area of the affected scars, with compensable evaluations available only for scars measuring at least six square inches in area. Id. In various examinations throughout the period on appeal, the Veteran's left hip scar was described as being between 20 and 23 centimeters long, and between 0.5 and 1 centimeter wide. While examiners have opined that the scar is neither unstable nor painful, the Veteran has described the scar as very tender and stated that it can make wearing certain types of pants painful. As there is no other competent evidence of record regarding the Veteran's left hip scar, the Board finds that, resolving the benefit of the doubt in the Veteran's favor, a 10 percent disability rating is warranted throughout the period on appeal under Diagnostic Code 7804 based on the Veteran's reports of pain. The evidence does not, however, reflect that a rating in excess of 10 percent is warranted at any point. There is no indication that the Veteran had more than two scars, or that the scar was unstable in addition to being painful. Furthermore, the evidence does not reflect that the scar was more than six inches in area. Accordingly, a rating of 10 percent, but no higher, is warranted. TMJ The Veteran's TMJ syndrome status post left mandible fracture is currently rated as 30 percent disabling prior to July 1, 2010, 10 percent disabling from July 1, 2010, to February 13, 2012, and 20 percent disabling from February 14, 2012. The AOJ reduced the Veteran's disability rating from 30 percent to 10 percent effective July 1, 2010, and both the issue of the propriety of the reduction and the issue of entitlement to an increased disability rating are on appeal. The Veteran's TMJ syndrome is currently rated under 38 C.F.R. § 4.150, Diagnostic Code 9905, which provides for a 10 percent disability rating for lateral excursion range of motion from 0 to 4 millimeters, or for 30 to 34 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 20 percent disability rating is warranted for 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, and for 21 to 29 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 30 percent disability rating is warranted for 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, for 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, and for 11 to 20 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 40 percent disability rating is warranted for 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, for 11 to 20 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods, and for 0 to 10 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. Finally, a maximum 50 percent disability rating is warranted for 0 to 10 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods. 38 C.F.R. § 4.150, Diagnostic Code 9905. Note (1) to Diagnostic Code 9905 provides that ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. Id. Initially, the Board will address the rating reduction. VA regulations provide that where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The beneficiary must be notified of the contemplated action and be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level. Id. The Board notes that the AOJ complied with appropriate due process procedures concerning the rating reduction. Following a review of the record, the Board finds, after resolving all doubt in the Veteran's favor, that the reduction was not proper. The Board notes that the 30 percent disability rating for TMJ syndrome was in effect for more than 5 years, therefore the requirements set forth in 38 C.F.R. § 3.344 (2017) governing rating reductions apply. In short, these protections are aimed at ensuring that any improvement in the condition at issue is reasonably certain to be maintained under the ordinary conditions of life. Furthermore, the United States Court of Appeals for Veterans Claims (Court) has held that, in any case, a rating reduction must be based on improvement in a disability that reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 421 (1993). Turning to the evidence, during a VA examination conducted in October 2009 the Veteran complained of mouth irritation, gagging, and pain. She also stated that she felt that the right side of her jaw felt "pushed in" and put pressure on the left side. The Veteran's vertical interincisal opening was measured as 35 millimeters, and right and left lateral movement were each 8 millimeters. In a March 2010 statement, the Veteran asserted that the flexibility of movement in the examination was caused after several stretching movements that caused severe pain and a "tearing" sensation. When considering the Veteran's overall disability picture, the evidence does not reflect that the evidence at the time the reduction was effectuated in July 2010 was sufficient to show actual improvement of the Veteran's TMJ syndrome under the ordinary conditions of life and work. In this case, the single examination with less severe objective results but subjective complaints remaining the same is not sufficient to show actual improvement in the Veteran's ability to function. Furthermore, the Veteran has asserted that the examination upon which the reduction was based greatly pushed the levels of her comfort and caused severe pain. Accordingly, after resolving all doubt in the Veteran's favor, the Board finds that restoration of the 30 percent disability rating for TMJ syndrome is warranted. Turning to the question of entitlement to a disability rating in excess of 30 percent for TMJ syndrome, the Board notes that the evidence would need to show, at least, 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, 11 to 20 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods, or 0 to 10 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. Upon review, the Board finds that an increased disability rating is not warranted. As noted above, at the October 2009 examination, the Veteran's vertical interincisal opening was 25 millimeters and lateral movement was 8 millimeters. When the Veteran again underwent VA examination in February 2012, she described pain and limited movement in the joints, increased pain when the joints were touched, and a grinding sensation in the bones. She also indicated that she experienced flare-ups during which her jaw was tender and she felt a burning sensation as well as sharper pain and headaches. Range of motion testing revealed lateral excursion from 0 to 4 millimeters and an interincisal distance of 21 to 30 millimeters; both ranges of motion were accompanied by pain, and the examiner indicated that there was additional limitation with repetition although the ranges of motion appeared to be unchanged. The examiner opined that there was functional loss due to less movement than normal, excess fatigability, and pain on movement. Furthermore, there was pain on palpation, but no clicking or crepitation. Finally, the examiner opined that the disability could affect the Veteran's ability to work if her job involved speaking often due to the repetitive motion of the joint. The Veteran again underwent VA examination in connection with this claim in October 2016. She reported that she felt her condition continued to worsen with time and that she experienced chronic pain in both TM joints, but especially the left. She described flare-ups in the left TM joint with periods of excruciating pain and frequent awakening due to pain. She stated that she was unable to open her mouth wide or to bite on anything hard. Range of motion testing revealed an interincisal distance of 35 millimeters and right and left lateral excursion of 6 millimeters. Pain was noted upon examination and caused functional loss, although the range of motion itself did not contribute to a functional loss. There was objective evidence of localized tenderness or pain on palpation as well as of crepitus or clicking in the left TM joint. The joint was tender to the touch and clicked if she opened too far and during lateral movement. There was no additional loss of function after repetition. The examiner opined that the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up, and noted that the Veteran sometimes had to call in sick to her job or work from home during flare-ups. Treatment records and lay statements throughout the period on appeal reflect complaints and symptoms consistent with those noted above, including severe pain and difficulty biting or chewing. Upon review, the Board finds that a disability rating in excess of 30 percent cannot be granted. In that regard, the evidence does not demonstrate that the Veteran's TMJ syndrome resulted in a level of impairment commensurate with the criteria for a higher disability rating, specifically 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, 11 to 20 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods, or 0 to 10 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. Maximum unassisted vertical opening was measured as, at worst, 21 to 30 millimeters, but there was no indication that the Veteran was restricted to full liquid and pureed foods. Accordingly, the Board cannot find that a disability rating in excess of 30 percent is warranted. In reaching its conclusions in the increased ratings claims above, the Board has considered the assertions of the Veteran as to her symptomatology and the severity of her conditions, but, to the extent the Veteran believes that she is entitled to higher ratings than assigned herein, concludes that the findings during medical evaluation are more probative than her assertions to that effect. Furthermore, the assertions of the Veteran regarding the severity of her disabilities are generally consistent with the ratings currently assigned and with the findings on VA examinations. As such, the Board has considered the assertions of the Veteran but has also relied heavily on VA examinations, which duly considered the Veteran's subjective symptoms and do not show limitation of function approximating the criteria for higher ratings. Neither the Veteran nor her representative has raised any other issues with respect to the increased rating claims, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU The Veteran is seeking entitlement to a TDIU and asserts that, although she is currently working, her service-connected disabilities are so severe as to render her essentially unemployable or, at the least, under-employed. The Court has recognized that a 100 percent rating under the rating schedule means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). In this case, the Veteran has been in receipt of a total schedular disability evaluation since March 2010 and, thus, throughout the entire period on appeal. In Bradley v. Peake, 22 Vet. App. 280 (2008), however, the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. See id. (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more. Thus, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. The Board has reviewed all the available evidence and concludes that a preponderance of the evidence does not support a finding that the Veteran is rendered unemployable due to any one of her service connected disabilities. In that regard, the Board also notes that the Veteran has not even alleged that any single disability renders her unemployable. While various examiners and clinicians have opined that the Veteran's disabilities affect her employability in various ways, there is no competent evidence of record to suggest that a single disability renders her unemployable, particularly as the evidence demonstrates that she has worked for a large portion of the period on appeal. Accordingly, the Board cannot find that entitlement to a TDIU and, thus, SMC, is warranted. Earlier Effective Date The Veteran has asserted that she should be awarded an effective date earlier than March 26, 2010, for her combined total disability rating. In that regard, the Board notes that 38 C.F.R. § 4.25 provides guidelines for combining disability ratings. Disability ratings for separate disability ratings may not simply be added together; rather, 38 C.F.R. § 4.25 provides a formula which allows for the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Here, the Board finds that the Veteran's combined disability rating has been properly calculated since she was first awarded service connection. The Veteran has not appealed the effective dates for the individually-assigned ratings. As there is no other ground on which to grant an earlier effective date for a combined disability rating, the Board must deny the claim. ORDER New and material evidence having been received, the claim for entitlement to service connection for a right foot disability is reopened and, to that extent, the claim is granted. Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left foot disability is denied. Entitlement to a disability rating in excess of 60 percent for a left hip disability is denied. Entitlement to a disability rating in excess of 10 percent for a right knee disability is denied. Entitlement to a disability rating in excess of 10 percent for a left knee disability is denied. Entitlement to a disability rating of 10 percent, but no higher, for leg length discrepancy is granted. Entitlement to an initial disability rating of 10 percent, but no higher, for hypertension is granted. Entitlement to an initial disability rating of 10 percent, but no higher, for a left hip scar is granted. The claim for restoration of a 30 percent disability rating for TMJ syndrome, effective July 1, 2010, is warranted. Entitlement to a disability rating in excess of 30 percent for TMJ syndrome is denied. Entitlement to a TDIU is denied. Entitlement to an effective date earlier than March 26, 2010, for the award of a total schedular disability rating is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs