Citation Nr: 1827353 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 09-22 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating higher than 40 percent for degenerative disc disease of the lumbar spine with pyriformis syndrome. 2. Entitlement to a separate rating for bowel impairment as a neurological manifestation of the lumbar spine disability. 3. Entitlement to a rating higher than 10 percent for left ankle impingement with a history of synovitis. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1990 to September 1993 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2007 and September 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in St. Louis, Missouri, and Seattle, Washington, respectively. The Seattle RO has current jurisdiction. In May 2015, the Veteran testified before the undersigned during a hearing at the RO. A transcript of the hearing is included in the electronic claims file. In November 2015 and February 2017 the Board remanded the appeal for further development. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 147 (1999) (requiring substantial compliance with Board remand directives). The matter of entitlement to a separate rating for bowel impairment as a neurological manifestation of the lumbar spine disability has been raised by the evidence. See General Rating Formula for Diseases and Injuries of the Spine Note (1). The issue has thus been added to the appeal, as shown on the title page. The electronic filing system contains documents that were associated with the record since the RO's last readjudication of the claims. However, in March 2016 and February 2018, the Veteran waived her right to have such evidence reviewed in the first instance by the RO. FINDINGS OF FACT 1. The degenerative disc disease of the lumbar spine with pyriformis syndrome is not manifested by unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of at least 6 weeks duration due to intervertebral disc syndrome (IVDS). 2. Throughout the appeal period, the lumbar spine disability has been manifested by bowel impairment. 3. Throughout the appeal period, the left ankle impingement with a history of synovitis has been manifested by marked limitation of motion. 4. In February 2018, after certification of the claim to the Board and prior to the promulgation of a decision in the appeal, the Veteran, through her representative, requested that the claim for entitlement to a TDIU be withdrawn from appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine with pyriformis syndrome are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, Diagnostic Code (DC) 5242 (2017). 2. The criteria for the assignment of a separate 30 percent rating, but no higher, for impaired sphincter control have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, DC 5242 Note (1), 4.114 , DC 7332 (2017). 3. The criteria for the assignment of a 20 percent rating, but no higher, for left ankle impingement with a history of synovitis have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, DCs 5020, 5271 (2017). 4. The criteria for withdrawal of the claim for entitlement to a TDIU have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In reaching the decisions below, the Board considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Claims for Higher Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as described below, staged ratings are not warranted for the disabilities on appeal. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Board has reviewed all of the evidence in the Veteran's electronic files. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Lumbar Spine In an August 2001 rating decision, the Veteran was awarded service connection for degenerative disc disease of the lumbar spine with pyriformis syndrome. She was assigned a 40 percent rating, effective December 7, 2000. In a July 2002 rating decision, and a December 2004 Board decision, an effective date earlier than December 7, 2000 for the award of service connection was denied. In the September 2008 rating decision on appeal, the 40 percent rating was continued. In November 2015, the Board remanded the claim for further development. In a March 2016 rating decision, the RO awarded a separate rating for radiculopathy of the left leg associated with the lumbar spine disability. A 10 percent rating was assigned for the radiculopathy, effective February 18, 2016. The Veteran did not disagree with that rating decision, and the matter of entitlement to a higher rating for left leg radiculopathy since February 18, 2016 is not currently before the Board. However, in adjudicating the lumbar spine disability on appeal, the General Rating Formula for disease and injuries of the Spine directs that any associated neurological abnormalities be considered. The Board will thus address whether there have been any additional neurological abnormalities associated with the lumbar spine disability at any point in the appeal, including whether there was radiculopathy prior to February 18, 2016. In February 2017, the Board again remanded the claim for further development. Under the General Rating Formula for Diseases and Injuries of the Spine, the next higher rating of 50 percent rating is assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned with evidence of unfavorable ankylosis of the entire spine. Under the Formula for Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, ratings are assigned based on the quantity and duration of incapacitating episodes over a prior 12-month period. For purposes of evaluation under this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Under this Formula, the next higher rating of 60 percent is assigned with evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. These rating criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Ankylosis is the complete immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988). Note (5) in DCs 5235-5242 further explains that, 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are separately rated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code, 5242, 5243, at Note (1). The Veteran has strenuously argued, throughout the appeal, that she experiences bowel incontinence associated with her lumbar spine disability. In February 2008, the Veteran reported problems with fecal incontinence. The provider stated she was unsure of the underlying etiology, but that it might be related to the Veteran's menstrual cycle. There was no evidence of neurological etiology. In March 2008, the Veteran was found to have bowel incontinence associated with her menstrual cycle and cramps. The muscles were normal, work-ups were negative, there was no problem with urination, and there was no lack of sensation with sexual activity. On VA examination in July 2008, the Veteran reported stiffness and pain. The pain was constant and traveled to her leg. She stated the condition had not resulted in any incapacitation. The condition impaired her ability to sit for prolonged periods. On physical examination, her gait was normal and she did not require assistive devices. There was no radiating pain on movement or muscle spasms. There was tenderness on examination. Straight leg raising testing was negative. There was no ankylosis of the lumbar spine. Flexion was to 90 degrees with pain at 90 degrees, extension was to 30 degrees with pain at 30 degrees, bilateral lateral flexion was to 30 degrees with pain at 30 degrees, and bilateral rotation was to 30 degrees with pain at 30 degrees. The joint function of the spine was not additionally limited by pain, fatigue, weakness, a lack of endurance, or incoordination after repetitive use. There were no signs of IVDS. Neurological findings were normal; motor function, sensory function, and reflex testing did not reveal abnormalities. In August 2008, at the Veteran sought treatment from her VA primary care physician for fecal incontinence. The physician opined that the fecal incontinence was due to the service-connected pyriformis syndrome which caused pelvic floor muscle weakness. On VA examination in July 2014, the Veteran reported pain with sitting and lying on her right side. The pain was constant. She reported flare-ups causing her to be unable to sit or stand without pain. On examination, flexion was to 85 degrees with pain at 85 degrees, extension was to 20 degrees with pain at 20 degrees, bilateral lateral flexion was to 20 degrees with pain at 20 degrees, and bilateral rotation was to 20 degrees with pain at 20 degrees. There was no ankylosis. The Veteran could perform repetitive-use testing with 3 repetitions without any additional limitation of motion. Functional loss included less movement than normal, pain, and interference with sitting, standing, or weight-bearing. There was pain on palpation. Muscle strength testing was normal. A reflex examination and sensory examination was normal. A straight leg raising test was positive on the right and negative on the left, but the examiner found there was no radiculopathy in either lower extremity. There were no other neurological abnormalities associated with the lumbar spine. There was no IVDS. The Veteran used assistive devices for her ankle. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. There was no impact of the condition on her ability to work. Gait and posture were normal. There were contributing factors of pain, weakness, fatigability, and/or incoordination and there was a limitation of unction during flare-ups or on repetition. The examiner opined there was approximately 5 degrees of flexion loss during a flare-up or during pain. At the May 2015 hearing, the Veteran reported flare-ups occurring at least once a month. Sometimes they occurred every day for about 2 weeks, every month. She reported occasional vomiting. Sitting on hard surfaces worsened her symptoms. She testified that she had a loss of bowel control during intense muscle spasms, coupled with pain, that interfered with her ability to function in a variety of ways. Her husband provided corroborating testimony. On VA examination in February 2016, the Veteran reported constant low back pain, bilateral leg pain, and back spasms associated with loose bowel movements. She reported flare-ups 5 days per week, lasting from 30 minutes to 2 weeks with pain at a level of 9/10. She reported she could not sit or stand for long periods of time. On examination flexion was to 50 degrees, and extension, bilateral lateral flexion, and bilateral lateral rotation were to 30 degrees. There was pain on examination but it did not result in functional loss. There was no pain with weight bearing. There was no localized tenderness or pain on palpation. She could perform repetitive use testing with no additional loss of motion or function. The examiner could not state without speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during a flare-up. Muscle strength was normal. The examiner stated there was no radiculopathy, but there was intermittent pain in both extremities. There were no other neurological abnormalities. There was no ankylosis of the spine. There was no IVDS. Assistive devices were not needed for her back. The examiner stated that there was no fecal incontinence. In an April 2016 addendum opinion, the February 2016 examiner clarified that although the Veteran reported severe subjective symptoms in the lower extremities, there was no objective evidence of a nerve radiculopathy, including on examination, MRI results, or otherwise in the record. In October 2016, the Veteran was assessed with episodes of loose stool plus incontinence only when sitting still for long periods of time with back spasms. The etiology was unclear. In January 2017, the Veteran was assessed with chronic low back spasms and associated bowel changes/leakage. In April 2017, the Veteran underwent a colonoscopy at a private facility. A digital rectal examination showed a weak anal sphincter. The examining physician diagnosed periodic fecal incontinence following osteoarthritic-induced back spasms. He opined that she had transient nerve damage from the back spasms, which was causing the incontinence. In a June 2017 neurology record, the Veteran reported ongoing spasms of the back. She did not have cord compression or cauda equine, which would require surgical intervention. With her weak anal sphincter, intense spasms were causing increased intraabdominal pressure, making her more likely to have stool incontinence. In July 2017, a VA neurologist provided an addendum to the June 2017 record. He opined that the etiology of the back spasms was underlying nerve irritation. The fecal incontinence was less clear, but there was a correlation of incontinence with the back spasms, likely due to increased intra-abdominal pressure. On VA examination in September 2017, the examiner stated that a physical examination was not performed because she and the Veteran agreed that the condition was stable and without change. The examiner provided an extensive summary of the medical record. She essentially opined that the majority of the Veteran's complaints are related to her pyriformis syndrome and provided a thorough medical explanation of the syndrome. In short, she stated that the service-connected pyriformis syndrome is a muscle condition that leads to compression mononeuropathy of the affected sciatic nerve. She did not appear aware that service-connection is in effect for the lumbar spine disability as including pyriformis syndrome, and provided discussion suggesting that service-connection for an orthopedic back problem and also radiculopathy was not appropriate. She opined that the bowel incontinence was due to spasms of the back muscles, leading to increased intraabdominal pressure with bowel evacuation due to decreased tone in the anal sphincter from weakness of the pelvic floor muscles; the Veteran did not have intermittent bowel incontinence due to a neurological etiology. In a March 2018, VA neurology record, the July 2017 neurologist's findings were restated. The Veteran was found to have back spasms with bowel incontinence, and the use of an H-wave stimulator was discussed. The preponderance of the evidence is against the assignment of a rating in excess of 40 percent for the Veteran's lumbar spine disability based on the General Rating Formula for Disease or Injury of the Spine. There is no evidence establishing unfavorable ankylosis of the entire thoracolumbar spine. VA examiners in July 2008, July 2014 and February 2016 specifically found no ankylosis and there is no evidence to the contrary. The Board considered the application of 38 C.F.R §§ 4.40 and 4.45 in light of the Court's ruling in DeLuca, supra. The record consistently demonstrates that the Veteran has reported lumbar pain, and the Board recognizes that VA examiners acknowledged and confirmed that she experienced such symptomology. However, joint function was not shown to be additionally limited by pain, fatigue, weakness, a lack of endurance, or incoordination after repetitive use on VA examination in July 2008. The July 2014 examiner found there was approximately 5 degrees of flexion lost during a flare-up or due to pain. The February 2016 examiner found she could perform repetitive use testing with no additional loss of motion or function. The Board finds that any additional functional impairment due to pain, including on use, is already contemplated in the evaluation assigned and that there was no demonstration, by lay or medical evidence, of additional functional impairment comparable to the next higher evaluation. As for incapacitating episodes, as the VA examiners have found no IVDS, and as there is no record of prescribed bed rest by a physician due to the service-connected lumbar spine disability, the criteria for a higher evaluation under Diagnostic Code 5243 have not been met. As for neurological manifestations of the disability, resolving all doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether her bowel incontinence is a neurological abnormality associated with the lumbar spine disability. Several opinions support this finding. The August 2008 VA primary care physician attributed the incontinence to the service-connected pyriformis syndrome, which has been defined as a condition affecting the sciatic nerve. The April 2017 private physician performed the Veteran's colonoscopy and opined that the Veteran had transient nerve damage from the back spasms, causing incontinence. The July 2017 VA neurologist stated that the incontinence was correlated with back spams, which were due to underlying nerve irritation. The March 2018 neurology record indicated a neurological etiology to the bowel incontinence, as the use of an H-wave stimulator was discussed as a method of treatment. Against this finding are the opinions of the 2008 VA providers, the February 2016 VA examiner, and the September 2017 VA examiner. Other VA providers, and the July 2008 and July 2014 VA examiners, have found the etiology unclear or have not addressed the bowel incontinence, and the Board finds these are non-opinions, rather than negative evidence. The findings of the 2008 providers are of diminished probative value because they associated the incontinence with the Veteran's menstrual cycle. The Veteran underwent a supracervical hysterectomy in 2006 and has competently and credibly stated she does not have a menstrual cycle; moreover, the opinions were unsupported by any rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The February 2016 opinion is of no probative value because, as discussed in the February 2017 remand, the examiner inaccurately found there was no fecal incontinence. The September 2017 opinion is of diminished probative value to the extent the examiner attributed the incontinence to the back spasms, but did not explain the etiology of the back spasms, including whether they are of neurological origin. Moreover, when weighed against the positive opinions described above, the Board finds the evidence is at least in equipoise. Thus resolving any doubt in favor of the Veteran, the Board finds that a separate, 30 percent rating is warranted for impaired sphincter control under 38 C.F.R. § 4.114 , Diagnostic Code 7332 as a neurological abnormality associated with the lumbar spine disability throughout the appeal period. Diagnostic Code 7332 provides a noncompensable rating for healed rectum/anus or slight impairment of sphincter control without leakage; a 10 percent rating for constant slight impairment of sphincter control or occasional moderate leakage; a 30 percent rating for occasional involuntary bowel movements or impairment of sphincter control necessitating the wearing of a pad; a 60 percent rating for extensive leakage and fairly frequent involuntary bowel movements; and a 100 percent (total) rating for complete loss of sphincter control. The record shows the Veteran's bowel incontinence has been characterized as "intermittent," "periodic," and occurring "at times." See April 2017 private medical report; September 2017 VA examination report; March 2018 VA treatment record. She uses a pad for protection. See February 2016 VA examination report. As such, a 30 percent rating is appropriate. The preponderance of the evidence is against a rating in excess of 30 percent as the record does not show "fairly frequent" incontinence or a complete loss of sphincter control. Additionally, as discussed, a separate rating for left leg radiculopathy has been assigned from February 18, 2016 onward, but as the Veteran did not appeal the March 2016 rating decision, the matter of a higher rating since that time is not on appeal. Prior to and since this date, the record has not shown any other neurological manifestation of the lumbar spine disability, besides the bowel incontinence. The July 2008 VA examiner found no neurological abnormalities, including in motor, sensory, or reflex functioning. The July 2014 examiner specifically stated there was no radiculopathy or any other neurological abnormalities. The February 2016 examiner stated in the report, as well as in an April 2016 addendum opinion, that there was no showing of nerve radiculopathy, including on examination, MRI results, or otherwise in the record. For all the foregoing reasons, and resolving all doubt in favor of the Veteran, the Board finds that a 30 percent rating is warranted for the Veteran's impaired sphincter control throughout the appeal period, but finds the preponderance of the evidence is against a rating higher than 40 percent for the lumbar spine disability or any higher or separate rating based on neurological abnormalities. Left Ankle In an unappealed August 1994 rating decision, the RO granted service connection for the left ankle disability, and assigned a noncompensable rating under 38 C.F.R. § 4.71a, DCs 5020, effective September 28, 1993. In September 1996, a rating of 10 percent was granted, effective February 29, 1996. In the January 2007 rating decision on appeal, and also in September 2008 and October 2015 rating decisions, the 10 percent rating was continued. In November 2015 and February 2017, the claim was remanded for further development. During the appeal period, the Veteran has been assigned temporary total ratings for the left ankle disability following surgery. Evidence dated from the periods in which the Veteran has been in receipt of a temporary total rating, comprising July 12, 2007 to August 31, 2007 and March 23, 2015 to May 31, 2016, will not be considered in adjudicating the claim since the Veteran was already receiving the maximum evaluation possible at those times. In an April 2016 rating decision, the RO awarded a separate rating for a scar associated with the Veteran's left ankle surgery. A 10 percent rating was assigned, effective February 18, 2016. The Veteran did not disagree with any aspect of that rating decision, and the matter of entitlement to a higher or earlier rating for the left ankle scar is not currently before the Board. As pertinent to the left lower extremity, the Board also observes that the Veteran is separately-service connected for plantar fasciitis of the left foot and radiculopathy of the left leg. The left ankle disability has been rated under DC 5020, which pertains to synovitis. It is to be rated on limitation of motion of the affected part. Diagnostic Code 5271 pertains to limited motion of the ankle. That code provides a rating of 10 percent for "moderate" limitation of motion, and a maximum rating of 20 percent for "marked" limitation of motion. The words "mild," "moderate," and "marked" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. According to the rating schedule, normal dorsiflexion of the ankle is to 20 degrees, and normal plantar flexion of the ankle is to 45 degrees. 38 C.F.R. § 4.71, Plate II. In a July 2006 private medical report, Dr. J. stated the Veteran had constant pain in the left ankle, which was worse with weight-bearing. The range of motion was normal. There was tenderness on palpation and crepitation. There was mild laxity on the lateral side. On VA examination in September 2006, the Veteran reported pain with weight-bearing, stress on the ankle, or twisting of the ankle. The pain was more of a positional pain than a flare-up. She could not walk or run without considerable difficulty. She could not walk longer than 20 minutes. Flare-ups lasted anywhere from a few minutes to a few hours, and she reported 50 over the past year. She could not walk in high-heeled shoes. On examination, the gait was normal. There was a swollen area between the anterior ankle joint and the anterior edge of the fibula. There was no click or instability, Her range of motion was reported as 85-145 degrees. Strength was normal. In a January 2007 form, Dr. J. recommended handicapped parking on a permanent basis. He stated that the ankle limited mobility in that there was severe pain with weight-bearing. In April 2008, a VA provider discussed a 2007 ankle re-injury, and stated she may continue to have persistent symptoms requiring the use of an ankle brace. The provider characterized the ankle as "polytraumatized." In August 2008, there was edema and tenderness to the anterior ankle mortise joint. She could dorsiflex the ankle to neutral. There was pain with inversion and she had laxity. She had very weak lateral muscle and tendon strength on the left ankle compared to the right. There was tenderness on palpation. On VA examination in September 2008, the Veteran reported pain, weakness, swelling, giving way, and a lack of endurance. The pain level was 9/10 and was elicited by physical activity. She did not have stiffness, heat, redness, locking, fatigability, or dislocation. On examination, the gait and posture were normal. She required a brace on the left ankle. There was tenderness on palpation. Dorsiflexion was to 10 degrees with pain at 10 degrees, and plantar flexion was to 45 degrees. Joint function was not additionally limited by pain, fatigue, weakness, a lack of endurance, or incoordination on repetition. There was no malunion to the os calcis or of the astralgus on x-ray. The condition impacted employment in that there was pain on climbing stairs and prolonged standing. On VA examination in July 2014, the Veteran reported a history of 4 ankle surgeries. Pain limited her ability to dangle her ankle or walk longer than 15-20 minutes. She had flare-ups during which she could not lift the ankle without pain. On examination, plantar flexion was to 30 degrees with pain at 30 degrees, and dorsiflexion was to 10 degrees with pain at 10 degrees. She could perform repetitive use testing with no change in the range of motion. Functional loss included less movement than normal, pain with movement, and interference with sitting, standing, or weight-bearing. There was pain on palpation. Muscle strength was normal in plantar flexion and dorsiflexion. Stability testing was normal. There was no ankylosis. She required the occasional use of an ankle brace. The ankle disability affected work in that she could not walk or stand for prolonged periods. There were contributing factors of pain, weakness, fatigability and/or incoordination and there was additional limitation of functional ability of the ankle during flare-ups or on repetition. The degree of loss of motion was 5 degrees in plantar flexion and dorsiflexion. In April 2015, the Veteran's private surgeon, Dr. R., submitted a letter summarizing her ankle surgeries. He stated that despite the surgeries, she could still re-tear the lateral ankle ligaments. There remained nagging discomfort and pain with certain pivoting activities. At the May 2015 hearing, the Veteran testified that she had constant inflammation and pain in the ankle. She required an ankle brace. She testified about her ankle surgeries and her residual pain. On VA examination in February 2016, the Veteran's left ankle could not be examined because of surgery performed in March 2015. Moreover, she was in receipt of a temporary total rating at this time. A March 2016 Disability Benefits Questionnaire (DBQ) was completed, but during this time the Veteran was in receipt of a temporary total rating. In June 2016, a DBQ was completed by Dr. R. The Veteran reported flare-ups causing limited walking including on an incline, problems carrying items, and problems with daily activities including climbing. The examiner stated he expected permanent impairment following her surgeries. Factors contributing to her functional loss included less movement than normal, weakened movement, pain on movement, swelling, disturbance of locomotion, and interference with sitting. Plantar flexion was to 35 degrees and dorsiflexion was to 10 degrees. There was muscle atrophy in the left calf. Assistive devices included the constant use of a brace and knee scooter. The condition impacted work in that she had a limited ability to lift or walk for prolonged periods. In an attached letter, Dr. R. summarized that the course of the Veteran's ankle disability has been complex, and she has injuries to two different tendons and several surgeries. She may always have pain and stiffness in the ankle, which may limit her when doing extensive walking or standing. Her symptoms will almost certainly limit her from high-impact (running, jumping) or uneven-ground activities (hiking). He anticipated long-term issues. On VA examination in July 2017, the Veteran reported flare-ups limiting her ability to walk. She could not walk up a hill. Standing longer than 15 minutes caused pain. She had pain with weight-bearing, which affected ambulation. She reported a loss of motion in the ankle. On examination, dorsiflexion was to 20 degrees and plantar flexion was to 40 degrees. Pain was noted on the examination. There was no pain to palpation or crepitus. She could perform repetitive use testing without a loss of motion. Muscle strength was normal and there was no atrophy. There was no ankylosis of the left ankle. There was instability in the ankle. There were no other pertinent physical findings, complications, conditions, signs or symptoms. The condition impacted work in that she had difficulty moving heavy objects, climbing stairs, and sitting for prolonged periods. The examiner stated it would be speculative to opine as to whether or not pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. In September 2017, Dr. R. submitted a letter stating the Veteran could not stand for any great length of time or walk prolonged distances. She had problems descending stairs and was limited in her ability to actively load her Achilles tendon. The issues could be permanent. Considering the pertinent evidence in light of the governing legal authority, the Board finds that a 20 percent rating is warranted for the left ankle disability throughout the appeal period based on "marked" limitation of motion. Laxity was shown in July 2006. In September 2006, she could not walk or run without considerable difficulty. There had been 50 flare-ups in the past year. In January 2007, her physician recommended that she use permanent handicapped parking. In April 2008, her ankle was described as polytraumatized and she persistently required an ankle brace. Edema and laxity were documented in August 2008. On VA examination in September 2008 and July 2014, dorsiflexion was only half of what is considered normal. The July 2014 examiner added that with pain or during a flare-up, there would be an additional 5 degrees lost in dorsiflexion. In June 2016, Dr. R. stated he expected permanent impairment affecting high-impact activities and activities on uneven ground. The Veteran required the constant use of a brace and knee scooter. Dorsiflexion was again to 10 degrees. On VA examination in July 2017, there remained instability in the ankle. The Board thus finds that the Veteran's disability picture has most closely approximated a "marked" limitation of motion throughout the appeal period. This award does not violate the amputation rule. The amputation rule provides that the combined rating for disabilities of an extremity shall not exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. Here, the Veteran is service-connected for several disabilities affecting the entire left leg, including a left foot disability associated with the left ankle disability (30 percent disabling), the left ankle disability (now 20 percent disabling), radiculopathy of the entire left leg (10 percent disabling), and a scar of the left ankle (10 percent disabling). Under 38 C.F.R. § 4.25, this results in a combined rating of 60 percent for the left leg. Diagnostic Code 5160 provides that an amputation of the leg at the thigh, disarticulation, with loss of extrinsic pelvic girdle muscles would warrant a 90 percent rating; an amputation at the thigh one-third of the distance from the perineum to the knee would warrant an 80 percent rating; and an amputation at the middle or lower third would warrant a 60 percent rating. The Veteran's combined rating does not exceed the rating for an amputation at any of these levels. However, the preponderance of the evidence is against any higher rating. Twenty percent is the maximum rating allowed under DC 5271. The only diagnostic code pertaining to the ankle that provides a rating in excess of 20 percent is DC 5270, which requires evidence of ankylosis. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted.) As the evidence, which includes several VA examination reports as well as many treatment records, consistently indicates the Veteran does not have ankylosis of the left ankle, a rating higher than 20 percent cannot be assigned. The preponderance of the evidence shows no additional loss of motion on repetition, and her pain and functional loss has already been considered in awarding the maximum rating under DC 5271. The Board finds insufficient evidence to support a finding that her pain is so disabling as to actually or effectively limit ankle motion to such an extent as to warrant the assignment of a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5270. The Board has considered all other diagnostic codes pertaining to the ankle but none apply. Again, as there is no evidence that the ankle is ankylosed, DC 5272 does not apply. Diagnostic Code 5273 does not apply because it requires evidence of malunion of os calcis or astragalus, which is not indicated here. Similarly, DC 5274 requires evidence of an astragalectomy, is also not indicated by the record. To the extent the Veteran has reported neurological complaints affecting her left lower extremity, as noted above, she is already service-connected for a neurological disability of the left leg as due to her lumbar spine disability. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. To determine what constitutes the same disability or manifestation for purposes of pyramiding, the Board looks to the symptomatology of the conditions; if the symptomatology of one condition is duplicative of or overlapping with the other condition, awarding separate ratings would constitute pyramiding. If, however, the symptomatology is distinct and separate, separate evaluations are allowed. See, e.g., Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Here, the Board cannot distinguish the neurological complaints in connection with the left ankle from those in connection with the left lower extremity as due to the lumbar spine; they are not separate and distinct. To award separate ratings would constitute pyramiding. To the extent she asserts a muscle injury is associated with her left ankle disability, the preponderance of the evidence is against such a separate rating. Initially, a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). Given the peripheral nerve paralysis rating for radiculopathy of the left leg, and the lack of evidence distinguishing the functions affected by the radiculopathy versus any muscle injury, a separate rating is not warranted. Moreover, while muscle atrophy was documented in the June 2016 DBQ, muscle strength was shown to be normal on VA examination in July 2014 and July 2017; the preponderance of the evidence is against a finding of an associated muscle disorder. For all the foregoing reasons, and resolving all doubt in the Veteran's favor, the Board finds that a maximum, 20 percent rating is warranted under DC 5271. However, the preponderance of the evidence is against any higher or separate rating for the Veteran's left ankle disability. Both Claims for Higher Ratings Initially, the Board has considered Correia v. McDonald, 28 Vet. App. 158 (2016), which holds that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, given that the Veteran is now in receipt of the maximum ratings based on limitation of motion of the spine and the left ankle, and higher ratings for both disabilities require ankylosis, there is no prejudice in any VA examination not having conformed to 38 C.F.R. § 4.59 as interpreted in Correia. The VA examination reports discussed above are adequate for adjudication. The examiners examined the Veteran and pertinent records, considered her history, and set forth objective findings necessary for adjudication. The Board has further considered the admissible and believable assertions of the Veteran. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the lay statements are not considered more persuasive than the objective medical findings which, as indicated above, do not support higher ratings than those already assigned. The Veteran has raised a number of contentions regarding the VA examinations, which the Board has carefully considered. For example, she has indicated that inadequate neurological testing has been conducted, that she did not refuse to undergo a left ankle examination in February 2016 as stated in the report, that she has left ankle instability that has not been considered, that muscle strength testing and repetitive testing has been inadequate, that the 2017 examiners were biased, and that a longer convalescence rating for the left ankle is warranted. The Board finds, shown by the discussion above, that these concerns have been addressed. In awarding a rating for impaired sphincter control, the Board finds that the neurological evidence is adequate for adjudication; a separate neurological rating cannot be assigned for the left ankle because of pyramiding. Her contentions regarding the February 2016 examination are moot as she was in receipt of temporary total rating at the time. Her ankle instability has been considered in her award of a 20 percent rating for a marked ankle disability. Muscle impairment has been considered and addressed. The Board cannot point to inadequacies in the repetitive-use testing conducted. The 2017 examination reports contain sufficient objective findings for adjudication without regard to any commentary by the examiners. The matter of an extension of any temporary total rating is not on appeal, as discussed above. In sum, the Veteran's concerns have been considered, but further remand is not necessary. Finally, as the Veteran's representative specifically raised the matter of entitlement to extraschedular ratings in February 2018 correspondence, the Board will also address this matter. The Court has set out a sequential three-step analysis, based on the language of 38 C.F.R. § 3.321(b)(1) , to determine whether to refer a case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Step one is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral to the Under Secretary for Benefits or the Director, Compensation Service for consideration of an extraschedular rating is required. If, however, the schedular criteria do not contemplate the claimant's level of disability and symptomatology and are therefore found to be inadequate, step two is to determine whether the claimant's disability picture is exceptional, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular criteria. If the claimant's disability picture meets this second step, then the third and last step is to refer the case to the Under Secretary for Benefits or the Director, Compensation Service to determine whether, to accord justice, an extraschedular rating is warranted. The symptoms associated with the Veteran's lumbar spine and left ankle disabilities are reasonably considered by the rating schedule. The predominant symptom of both disabilities is pain that significantly affects and limits numerous aspects of her life, day and night. However, pain is fully encompassed within the meaning of 38 C.F.R §§ 4.40, 4.45, and 4.59. Also, with specific regard to the ankle, pain has been considered in awarding the maximum, 20 percent rating for a "marked" disability under DC 5271. Other symptoms of the left ankle disability include weakness, a lack of endurance, crepitation, and loss of motion which are also fully contemplated by the rating regulations. The Veteran's laxity and swelling were considerations in finding she has a "marked" disability. With regard to the lumbar spine disability, other symptoms besides pain include limited motion, stiffness, radiculopathy, weakness, fatigability, and back spasms, which are also fully contemplated by the rating schedule. The fecal incontinence has now also been addressed in the Board's assignment of a separate rating under DC 7332. The Board has considered the Veteran's hearing testimony regarding vomiting as associated with the lumbar spine disability, but she testified this was because of pain, and pain has been considered. See Hearing Transcript, p. 3, 19. Moreover, the preponderance of the evidence is against a finding of vomiting as a symptom of the lumbar spine disability as the remainder of the large medical record, dating back more than 10 years due to the length of the appeal period, is devoid of any other lay or medical evidence suggesting that vomiting is associated with the lumbar spine disability. Simply stated, the application of the Rating Schedule is not rendered impractical for either disability. The Veteran does not have any other symptoms resulting from her service-connected lumbar spine or left ankle disabilities that are unusual or different from those contemplated by the schedular criteria. In short, particularly in light of the separate rating assigned herein, all of the symptomatology associated with the disabilities are reasonably considered by the rating schedule, and the analysis need not proceed beyond the first element of Thun discussed above. The Veteran's representative also requested consideration under Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), in which the Federal Circuit held that VA must consider the need for extraschedular review by evaluating the collective impact of two or more service-connected disabilities, in addition to evaluating the effect of a single service-connected disability. On December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321 (b)(1), to clarify that an extraschedular rating is no longer available based on the combined effect of multiple service-connected disabilities. See 82 Fed. Reg. 57830 (December 8, 2017). The final rule is effective January 8, 2018, and applies to all applications for benefits that are received by VA on or after January 8, 2018, or that are pending before VA on January 8, 2018. Therefore, effective January 8, 2018, the Board no longer has to include a discussion of combined effects in any extraschedular analysis. This rule effectively negates the previous holding of Johnson, 762 F.3d at 1365-66. Accordingly, the Board considered whether an extraschedular referral was warranted only on an individual basis, as discussed above. TDIU The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In February 2018, the Veteran, through her representative, withdrew the claim for entitlement to a TDIU from the appeal. Hence, there remain no allegations of errors of fact or law for appellate consideration as to this claim. The Board does not have jurisdiction to review this claim, and it is dismissed. ORDER A rating higher than 40 percent for degenerative disc disease of the lumbar spine with pyriformis syndrome is denied. A separate 30 percent rating, but no higher, for bowel impairment is granted throughout the appeal period. A rating of 20 percent, but no higher, for left ankle impingement with a history of synovitis is granted throughout the appeal period. The appeal for entitlement to a TDIU is dismissed. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs