Citation Nr: 19183569 Decision Date: 11/05/19 Archive Date: 11/05/19 DOCKET NO. 14-38 071A DATE: November 5, 2019 ORDER Prior to September 18, 2015, entitlement to an evaluation in excess of 20 percent for service-connected fracture of the right clavicle, SLAP lesion repair (major), is denied. For the period of September 18, 2015, to January 6, 2019, entitlement to an evaluation in excess of 30 percent for service-connected fracture of the right clavicle, SLAP lesion repair (major), with degenerative joint disease, supraspinatus tear and tendonitis, is denied. Effective January 7, 2019, to present, entitlement to an evaluation in excess of 40 percent for service-connected fracture of the right clavicle, SLAP lesion repair (major), with degenerative joint disease, supraspinatus tear and tendonitis, is denied. Prior to February 24, 2016, entitlement to an evaluation of 20 percent, and no higher, for service-connected left knee torn ligament under Diagnostic Code 5258 is granted; Diagnostic Code 5258 will replace the rating in effect under Diagnostic Code 5257. For the entire appeal period, entitlement to an evaluation in excess of 20 percent for service-connected left knee torn ligament under Diagnostic Code 5258 is denied; Diagnostic Code 5258 will replace the ratings in effect under Diagnostic Code 5257.   For the period of January 13, 2016, to present, entitlement to a separate evaluation of 10 percent, and no higher, under Diagnostic Code 5003-5260, for painful/limited motion due to the service-connected left knee internal derangement (ligament tear), with degenerative joint disease and degenerative meniscus tear, is granted. Prior to April 29, 2015, entitlement to an evaluation in excess of 10 percent for service-connected nonunion fracture of the right ankle is denied. An effective date of April 29, 2015 is granted for the 30 percent evaluation for service-connected nonunion fracture of the right ankle with ankylosis, tendonitis, and degenerative changes previously assigned by the RO. For the appeal period from April 29, 2015, to present, entitlement to an evaluation in excess of 30 percent for service-connected nonunion fracture of the right ankle with ankylosis, tendonitis, and degenerative changes is denied. FINDINGS OF FACT 1. Prior to September 18, 2015, the Veteran’s service-connected fracture of the right clavicle, SLAP lesion repair (major) was manifested by limitation of abduction to 65 degrees and complaints of pain. 2. For the period of September 18, 2015, to January 6, 2019, the Veteran’s service-connected fracture of the right clavicle, SLAP lesion repair (major) was manifested by limitation of motion of the major arm to 45 degrees and complaints of pain. 3. Effective January 7, 2019, the Veteran’s service-connected fracture of the right clavicle, SLAP lesion repair (major) is manifested by limitation of motion of the arm less than 25 degrees from the side and complaints of pain. 4. For the entire appeal period, the Veteran’s service-connected left knee torn ligament has been manifested by complaints of pain, locking, effusion. 5. X-rays on January 13, 2016, showed degenerative changes of the left knee, and from that date to present, he has had either noncompensable, but painful, limitation of motion or limitation of flexion. 6. Prior to April 29, 2015, the Veteran’s service-connected nonunion fracture of the right ankle was manifested by dorsiflexion to 10 degrees and plantar flexion to 30 degrees. 7. Medical evidence dated April 29, 2015, showed ankylosis of the right ankle with 0 degrees of plantar flexion and 0 degrees of dorsiflexion without consistent evidence of an abduction, adduction, inversion, or eversion deformity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 20 percent prior to September 18, 2015; an evaluation in excess of 30 percent for the period of September 18, 2015, to January 6, 2019; and an evaluation in excess of 40 percent, effective January 7, 2019, to present, for service-connected fracture of the right clavicle, SLAP lesion repair (major), with degenerative joint disease, supraspinatus tear and tendonitis, have not been met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201, 5203 (2018). 2. Prior to February 24, 2016, the criteria for entitlement to an evaluation of 20 percent, and no higher, under Diagnostic Code 5258 for service-connected left knee torn ligament were met; this rating REPLACES the currently assigned rating under Diagnostic Code 5257. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2018). 3. For the entire period on appeal, the criteria for entitlement to an evaluation in excess of 20 percent for service-connected left knee torn ligament under Diagnostic Code 5258 have not been met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2018). 4. For the period of January 13, 2016, to present, the criteria for entitlement to an evaluation of 10 percent, and no higher, under Diagnostic Code 5003-5260 for painful/limited motion due to the service-connected left knee internal derangement (ligament tear) with degenerative joint disease and degenerative meniscus tear have been met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260 (2018). 5. Prior to April 29, 2015, the criteria for entitlement to an evaluation in excess of 10 percent for service-connected nonunion fracture of the right ankle were not met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5271 (2018). 6. An effective date of April 29, 2015, is granted for the 30 percent evaluation assigned for service-connected nonunion fracture of the right ankle with ankylosis, tendonitis, and degenerative changes. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5270 (2018). 7. For the appeal period of April 29, 2015, to present, the criteria for entitlement to an evaluation of 30 percent for service-connected nonunion fracture of the right ankle with ankylosis, tendonitis, and degenerative changes were not met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5270 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to December 1997. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has not raised any 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). Thus, the Board need not discuss any potential issues in this regard. The Board acknowledges that the Veteran submitted additional medical evidence after the July 2019 supplemental statement of the case (SSOC) was issued. However, under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, the additional evidence that the Veteran submitted after this SSOC is subject to initial review by the Board because the Veteran did not request in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C. § 7105(e)(1) (2018). The Board also notes that some additional medical evidence, not submitted by the Veteran, was associated with the claims file after the SSOC. However, as this evidence provides no original information regarding the severity of the Veteran’s service-connected disabilities on appeal that has not already been provided in other medical evidence of record, the Board may proceed to adjudicate the claims as done below. In October 2017, the Veteran appeared at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Veteran has not alleged any deficiency with his hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. In reviewing the Veteran’s appeals for increased ratings, the Board has not overlooked the holding of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for TDIU when the appellant claims he is unable to work due to a service-connected disability). However, the evidence of record does not suggest that the Veteran is unemployable due to his service-connected disabilities on appeal. Moreover, while the Veteran has indicated that his service-connected disabilities affect his employment, he has not asserted that he is unemployable as a result of them. As such, the Board finds that Rice is not applicable to the current appeal, and the issue of entitlement to TDIU should not be construed as being on appeal. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, such staged ratings have been assigned. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 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, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 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). 1. Entitlement to increased evaluations for service-connected fracture of the right clavicle, SLAP lesion repair (major) In an August 2011 rating decision, the RO continued a 20 percent evaluation, for service-connected fracture of the right clavicle, SLAP lesion repair (major), under Diagnostic Codes 5203-5201. In a July 2019 rating decision, the RO increased the evaluation to 30 percent, effective September 18, 2015, and assigned an evaluation of 40 percent, effective January 7, 2019. The Veteran is seeking higher ratings. For the reasons given below, the Board is denying increased ratings for all time periods. Diagnostic Code 5201 provides for ratings based on limitation of motion of the arm. Specifically, Diagnostic Code 5201 provides a 20 percent rating for limitation of motion of the major arm at shoulder level (90 degrees). 38 C.F.R. § 4.74a, Diagnostic Code 5201 (2018). A 30 percent evaluation is warranted for limitation of motion of the major arm midway between side and shoulder level (45 degrees). A 40 percent evaluation is warranted for limitation of motion of the major arm to 25 degrees from side. Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2018). Under Diagnostic Code 5203, a 10 percent disability rating is assigned for impairment of the clavicle or scapula manifested by malunion. A 10 percent rating is also warranted where there is nonunion without loose movement. Where there is nonunion with loose movement, a 20 percent disability evaluation is warranted. A 20 percent disability evaluation is also warranted for impairment manifested by dislocation of the clavicle or scapula. 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2018). Diagnostic Code 5203 also provides that impairment of the clavicle can be alternatively rated on impairment of function of the contiguous joint. Id. The Board has reviewed all relevant post-service medical records, which document complaints of chronic shoulder pain, as well as the Veteran’s statements and hearing testimony and statements from his friends, co-workers, and spouse. Specifically, the Veteran testified at the October 2017 hearing that he experienced pain, weakness, tingling, and a lot of loss of use, as well as difficulty sleeping due to pain. His friends, co-workers, and spouse have reported witnessing his pain and discomfort. The Veteran underwent pertinent VA examinations in July 2011, September 2015, January 2019, and June 2019. For the period of time on appeal prior to September 18, 2015, the Board finds the criteria for a rating higher than 20 percent were not met under Diagnostic Code 5201. Specifically, there is no evidence from this time period reflecting limitation of motion of the major arm midway between side and shoulder level (45 degrees). The July 2011 VA examination specifically noted a limitation of abduction to 65 degrees with no additional limitations after 3 repetitions of range of motion. As such, an increased evaluation is not available under this diagnostic code. For the period of time on appeal from September 18, 2015, to January 6, 2019, the Board finds the criteria for a rating higher than 30 percent were not met. Specifically, there is no evidence from this time period reflecting limitation of motion of the major arm to 25 degrees from the side. The September 2015 VA examination specifically noted a limitation of abduction to 45 degrees. As such, an increased evaluation is not available under this diagnostic code. For the period of time on appeal from January 7, 2019, to the present, the Veteran’s service-connected disability is currently compensated at a 40 percent evaluation, which is the maximum evaluation available under Diagnostic Code 5201. As such, an increased evaluation is not available under this diagnostic code. The Board has reviewed the remaining diagnostic codes relating to shoulder disabilities but finds that they do not provide for an increased or separate rating under the circumstances. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, and 5203 (2018). As there is no evidence of ankylosis of the scapulohumeral articulation, flail shoulder, false flail shoulder, fibrous nonunion of the humerus, or malunion of the humerus with moderate or marked deformity, an increased or separate rating is not warranted under Diagnostic Codes 5200 or 5202. See July 2011, September 2015, January 2019, and June 2019 VA examination reports. Diagnostic Code 5203 evaluates impairment of the scapula or clavicle. This diagnostic code notes that the condition could be rated under this diagnostic code OR on impairment of function of contiguous joint. As an evaluation in excess of 20 percent is not available under this diagnostic code, the Board finds this diagnostic code does not provide for an increased rating for this service-connected disability, as the Veteran is already rated at a minimum of 20 percent for the entire period of time on appeal. Moreover, as limitation of motion appears to be the Veteran’s primary symptom, the Board finds it would be pyramiding to evaluate the Veteran’s disability under both Diagnostic Codes 5201 and 5203. As such, the Board finds that the symptoms associated with this service-connected disability are most appropriately rated under Diagnostic Code 5201, and an increased or separate rating cannot be granted under other diagnostic codes. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40, 4.45, there is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigue, incoordination, or weakness, result in additional limitation of function so as to meet the criteria for a higher evaluation. While the September 2015 VA examiner noted that pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-up or when the joint is used repeatedly over a period of time, testing after repetitive use was not conducted because pain was worse with increased activity. The July 2011, January 2019, and June 2019 VA examiners, however, noted no additional limitations after 3 repetitions of range of motion. Therefore, as additional limitation of function was not recorded so as to warrant an increased rating, the Board finds that an increased rating is not warranted under the Deluca criteria for any period of time on appeal. In summary, the Board concludes that the preponderance of the evidence is against the claim for increased ratings for the Veteran’s service-connected right shoulder disability for any period of time on appeal. The benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 74 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and applied appropriately. See Hart, supra. 2. Entitlement to increased evaluations for service-connected left knee torn ligament In an August 2011 rating decision, the RO continued a 10 percent evaluation for service-connected left knee torn ligament under Diagnostic Code 5257. In a July 2019 rating decision, the RO increased the evaluation assigned to this disability to 20 percent, effective February 24, 2016, under Diagnostic Codes 5010-5257, recognizing that the medical evidence now also showed degenerative joint disease and degenerative meniscus tear. The Veteran is seeking higher evaluations. The Board notes that Diagnostic Code 5010 addresses the issue of arthritis due to trauma, substantiated by x-ray findings, which is to be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis, or osteoarthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5257 addresses impairment of the knee in the form of recurrent subluxation or lateral instability. A 10 percent evaluation is warranted for slight recurrent subluxation or lateral instability, a 20 percent is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent is warranted for severe recurrent subluxation or lateral instability. The Board has reviewed all relevant post-service medical records, as well as the Veteran’s statements and hearing testimony, which primarily document complaints of pain, instability, and giving out. The Board has also reviewed statements from the Veteran’s spouse, co-workers, and friends, which primarily document witnessing pain and limitation of activities, such as walking around a mall without sitting to calm down his pain or standing for periods of time at work without his knee giving out. The Veteran underwent VA knee examinations in July 2011, February 2016, and January 2019, which are of record. As noted above, the Veteran’s service-connected left knee disability is currently assigned a 10 percent evaluation prior to February 24, 2016, and a 20 percent evaluation, effective February 24, 2016, under Diagnostic Code 5257. The Board notes that the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Upon review of all evidence of record, the Board finds it would be more appropriate to rate the Veteran’s service-connected left knee disability at 20 percent for the entire period of time on appeal under Diagnostic Code 5258 instead of under Diagnostic Code 5257. Diagnostic Code 5258 addresses dislocated semilunar cartilage with frequent episodes of “locking”, pain, and effusion. The Veteran reported knee pain and one episode of effusion at the July 2011 VA examination. Upon examination, the July 2011 VA examiner specifically noted that there was no effusion or locking. However, the Veteran complained of intermittent locking in a January 2012 private medical record from the Orthopedic Institute of Florida. At the February 2016 VA examination, the examiner noted frequent episodes of joint pain, “locking”, and effusion. The January 2019 VA examiner noted daily left knee effusion and pain. Therefore, as the Veteran has reported pain throughout the period of time on appeal; he reported locking in 2012 and in 2016; and he reported effusion in 2011, 2016, and 2019, the Board finds it would be more appropriate to evaluate the Veteran’s left knee disability under Diagnostic Code 5258 for the entire period of time on appeal and assign a 20 percent evaluation in lieu of the previous evaluations assigned under Diagnostic Code 5257. With regard to Diagnostic Code 5257, the Board acknowledges that the February 2016 VA examiner noted that the Veteran’s left knee disability manifested with moderate recurrent subluxation. However, the Board finds this to be inconsistent with all of the other evidence of record. The Veteran denied recurrent subluxation at the July 2011 VA examination, and the January 2019 VA examiner specifically noted the Veteran did not experience recurrent subluxation of the left knee. The Veteran did not report recurrent subluxation at the October 2017 hearing, and the remainder of the medical evidence of record, to include the Veteran’s VA treatment records, do not document recurrent subluxation of the left knee. Therefore, the Board finds the preponderance of the evidence does not support a finding that the Veteran’s left knee disability manifested with recurrent subluxation throughout the period of time on appeal. With regard to lateral instability, the Board notes that the Veteran reported giving way and instability at the July 2011 VA examination. However, upon examination, the examiner noted no instability. While the anterior instability test at the February 2016 VA examination noted instability of 0 to 5 millimeters, the posterior instability test, medial instability test, and lateral instability test were noted as normal. Moreover, the February 2016 VA examiner specifically noted there was no history of lateral instability of the left knee. Additionally, the January 2019 VA examiner specifically noted that there was no evidence of a history of lateral instability. Therefore, while the Veteran has provided subjective complaints of instability at the July 2011 VA examination and at the October 2017 hearing, the Board finds that the preponderance of the evidence does not reflect recurrent subluxation of the left knee throughout the period of time on appeal, and the July 2011, February 2016, and January 2019 VA examiners all specifically found that the Veteran’s left knee disability did not manifest with lateral instability. As such, the Board finds that the evidence of record simply does not warrant a compensable evaluation for the Veteran’s service-connected left knee disability under Diagnostic Code 5257 for any period of time on appeal. The Board has reviewed alternative diagnostic codes under which the Veteran could receive increased ratings for the left knee. Specifically, there is no evidence of record showing that the Veteran has ankylosis, impairment of the tibia and fibula, or acquired, traumatic genu recurvatum with regard to the left knee. As such, Diagnostic Codes 5256, 5262, and 5263 are not applicable for any period of time on appeal. With regard to range of motion, normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. According to Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees; a 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees; a 20 percent disability rating is assigned for extension limited to 15 degrees; a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a. Separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension), both currently codified under 38 C.F.R. § 4.71a, may be assigned for disability of the same joint. See VAOPGCPREC 9-04 (2004). With regard to the possibility of assigning an increased evaluation for the Veteran’s left knee under Diagnostic Code 5261, there is no evidence of record reflecting a limitation of extension to at least 5 degrees. Extension was noted at 0 degrees at the July 2011, February 2016, and January 2019 VA examinations. As such, an increased rating or separate compensable evaluation is not warranted under Diagnostic Code 5261 for any period of time on appeal. With regard to Diagnostic Code 5260, the Veteran’s flexion was recorded at 100 degrees at the July 2011 VA examination and at 40 degrees at the January 2019 VA examination. The February 2016 VA examiner recorded the Veteran’s flexion at 20 degrees but then specifically noted that he was able to sit at 90 degrees flexion. In other words, when seated, the Veteran clearly demonstrated an ability to flex the knee to 90 degrees, which means his claim during the examination that he could only flex to 20 degrees is not a credible finding and cannot be relied on in rating his condition. Therefore, the only credible indication in the record of limited flexion that would potentially warrant a separate rating is the January 2019 examination showing flexion to 40 degrees. In light of this recording of 40 degrees of flexion, the evidence showed a separate 10 percent evaluation under Diagnostic Code 5260, was warranted effective January 7, 2019, the date of the VA examination. However, a January 13, 2016, VA treatment record reflected an x-ray report showing degenerative changes of the left knee. There are no x-ray reports of record showing degenerative changes in the knee prior to that date. Even without credible evidence of flexion limited to at least 45 degrees, the evidence did show consistent complaints of painful motion. Once arthritis was demonstrated, a separate compensable evaluation could be assigned for noncompensable painful motion of the left knee under Diagnostic Codes 5003 and 5010. Therefore, in summary, beginning January 13, 2016, a separate 10 percent rating is assigned for arthritis with noncompensable painful motion. That rating would then be replaced with a rating under Diagnostic Code 5260 once the Veteran’s limited flexion met the criteria for such a rating. He cannot receive a rating under BOTH 5003/5010 and 5260, but the separate rating being granted from January 13, 2016 will compensate him for arthritis with either painful motion or with flexion limited to at least 45 degrees, once that finding was shown. Diagnostic Code 5259 addresses symptomatic removal of semilunar cartilage. While the Veteran was noted as having a meniscal abnormality at the July 2011 VA examination and a meniscal tear at the January 2019 VA examination, the Veteran is already receiving a separate compensable evaluation for symptoms associated with his service-connected left knee ligament symptoms, as discussed above. To assign an additional 10 percent evaluation under Diagnostic Code 5259 for the same symptoms would constitute pyramiding. As such, a compensable rating is not available under Diagnostic Code 5259 for the left knee for any period of time on appeal. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40 and 4.45, there is no indication in the medical evidence of record, to include the July 2011, February 2016, and January 2019 VA knee examination reports, that any subjective complaints, such as pain, fatigue, incoordination, or weakness, result in additional limitation of function so as to meet the criteria for a higher evaluation or for any further separate evaluations. The July 2011 VA examiner noted no additional limitation of motion after 3 repetitions. The January 2019 VA examiner noted no additional functional loss or range of motion after 3 repetitions or with repeated use over time. As such, an increased rating is not warranted for the Veteran’s service-connected left knee disability under the Deluca criteria for any period of time on appeal. In summary, the Board finds that the evidence supports: • Prior to February 24, 2016, an evaluation of 20 percent, and no higher, was warranted for the service-connected left knee torn ligament under Diagnostic Code 5258 IN LIEU of the previously-assigned 10 percent evaluation under Diagnostic Code 5257; • For the entire appeal period, a rating higher than the 20 percent evaluation assigned under Diagnostic Code 5258 IN LIEU of the previously-assigned evaluations under Diagnostic Code 5257 is not warranted; and • For the period of January 13, 2016, to present, entitlement to a separate evaluation of 10 percent, and no higher, is warranted under Diagnostic Code 5003-5260, for the degenerative changes in the left knee resulting in either painful noncompensable limited motion or limited flexion. The benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) has been applied by the Board in assigning these ratings, and the staged ratings have been applied consistent with the medical evidence for the different time periods on appeal. 3. Entitlement to increased evaluations for service-connected nonunion fracture of the right ankle. In an August 2011 rating decision, the RO granted service connection for nonunion fracture of the right ankle and assigned a 10 percent evaluation, effective February 23, 2011, under Diagnostic Code 5271. In a July 2019 rating decision, the RO increased the evaluation assigned to the Veteran’s service-connected right ankle disability to 30 percent, effective May 29, 2015, under Diagnostic Codes 5003-5270, recognizing that the medical evidence established ankylosis. The Veteran is seeking higher evaluations. Degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2018). Diagnostic Code 5270 provides for 20, 30, or 40 percent ratings for ankylosis of the ankle depending on the angle at which the ankle is ankylosed. Specifically, a 20 percent rating is warranted for ankylosis in plantar flexion less than 30 degrees. A 30 percent rating is warranted for ankylosis in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion between zero (0) degrees and 10 degrees. A maximum 40 percent rating is assigned when the ankle is ankylosed at more than 40 degrees in plantar flexion, at more than 10 degrees in dorsiflexion, or with abduction, adduction, inversion, or eversion deformity. Diagnostic Code 5271 specifically applies to limitation of motion of the ankle. This diagnostic code provides a 10 percent rating for symptomatology reflective of disabilities with moderate limitation of motion and a 20 percent rating for disabilities involving marked limitation of motion. A 20 percent is the maximum evaluation provided under Diagnostic Code 5271. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2018). According to Plate II of the Schedule for Ratings Disabilities, normal dorsiflexion of the ankle is zero to 20 degrees; and normal plantar flexion is zero to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2018). The Board notes that words such as “mild,” “moderate,” “severe”, and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just”. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” and “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 4.2, 4.6 (2018). While the rating schedule does not define “moderate” or “marked” limited motion, guidance from VBA’s M21-1 Adjudication Procedures Manual states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. Marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See id. The M21-1 is not binding on the Board and, to rely on the M21-1, the Board must conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. See Overton v. Wilkie, 30 Vet. App. 257 (2018). The Board finds that the M21-1 may be relied upon as a factor based on VA’s proposed revisions to Diagnostic Code 5271 made in February 2003 and August 2017. See 68 Fed. Reg. 6998 (Feb. 11, 2003); 82 Fed. Reg. 35719 (Aug. 1, 2017). In February 2003, VA hired an outside consultant, who convened a panel of non-VA specialists, to review the portion of the rating schedule dealing with the musculoskeletal system to formulate recommendations. VA proposed to adopt many of the recommendations, including defining “moderate” and “marked” similarly to the current M21-1 guidelines to ensure consistent evaluations. See 68 Fed. Reg. at 7018. In August 2017, VA proposed to redefine “moderate” and “marked” exactly as listed in the M21-1 and the proposal noted that “as VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel.” 82 Fed. Reg. at 35723. The Board finds that the bases underlying VA’s proposed rules, which were created with non-VA specialists, are persuasive reasons to partly rely on M21-1 in rating ankle disabilities under Diagnostic Code 5271. The Board has reviewed all relevant post-service medical records, as well as the Veteran’s statements and hearing testimony, which primarily document complaints of pain, instability, and giving out. The Board has also reviewed statements from the Veteran’s spouse, co-workers, and friends, which primarily document witnessing pain and limitation of activities, such as walking around a mall without sitting to calm down his pain. The Veteran underwent VA ankle examinations in July 2011, May 2015, November 2018, and January 2019, which are of record. As an initial matter, the Board notes that the RO assigned the increased 30 percent rating from May 29, 2015, finding ankylosis was shown and changing the Diagnostic Code to 5270. This was the date of a DBQ the Veteran submitted showing ankylosis was present. However, the Board’s review showed an April 29, 2015, VA treatment record that documented right ankle dorsiflexion to -10 degrees and plantar flexion to 0 degrees. In light of these findings, the Board finds it reasonable to extend the 30 percent evaluation for the Veteran’s service-connected right ankle disability under Diagnostic Code 5270 back to April 29, 2015. However, for the period of time on appeal prior to April 29, 2015, the Board finds that the Veteran’s right ankle disability was appropriately evaluated at 10 percent for moderate limitation of motion under Diagnostic Code 5271. Private medical records from June 2010 and August 2010 from Physician Associates noted full range of motion of the ankle. At the July 2011 VA examination, the Veteran’s right ankle dorsiflexion range of motion was noted at 0 to 10 degrees and the right plantar flexion range of motion was noted at 0 to 30 degrees. This means his range of motion was reduced by 50 percent with dorsiflexion (10/20) and approximately 33 percent with plantar flexion (30/45). There was no additional loss of range of motion after repetitive use, and no ankylosis was noted. In an October 2011 VA treatment record, the Veteran’s right ankle was noted as okay with some swelling and pain. He continued to complain of pain and decreased range of motion throughout VA treatment records in 2012, 2013, and 2014. However, measurements related to limitation of motion were not recorded. Moreover, the VA treatment records from this time period do document findings related to a right ankle disability that are suggestive of marked impairment. Therefore, while the Veteran’s range of motion was certainly limited to an extent, it was not to the extent of being markedly limited. The Board reaches such a conclusion not only with consideration of the M21-1 provisions mentioned above, but based on the fact that he retained 50 percent of normal range of dorsiflexion and 66 percent of normal range of plantar flexion, which simply does not amount to marked limitations. As such, an evaluation in excess of 10 percent is not warranted under Diagnostic Code 5271 for the period of time on appeal prior to April 29, 2015. The Board has reviewed the remaining diagnostic codes relating to ankle disabilities. There is no evidence from this time period indicating that the Veteran’s left ankle disability manifested with malunion of the os calcis or astragalus, ankylosis of any kind, or astragalectomy. As such, an increased rating or separate rating cannot be assigned under Diagnostic Codes 5270 through 5274 for the period of time on appeal prior to April 29, 2015. For the period of April 29, 2015, to the present, the Board finds that the evidence of record does not reflect that the Veteran’s service-connected right ankle disability warrants an evaluation in excess of 30 percent under Diagnostic Code 5270. Specifically, the evidence of record does not reflect that the Veteran’s right ankle disability manifests with ankylosis in more than 40 degrees in plantar flexion or with ankylosis in more than 10 degrees in dorsiflexion. The April 29, 2015, VA treatment record documented right ankle dorsiflexion to -10 degrees and plantar flexion to 0 degrees. The May 29, 2015, VA examiner noted 0 degrees of plantar flexion and 0 degrees of dorsiflexion with no change in range of motion after repetitive-use testing. At the November 2018 VA examination, the examiner noted 0 degrees of plantar flexion and 0 degrees of dorsiflexion. The Veteran was not able to perform repetitive-use testing due to fear of pain. At the January 2019 VA examination, the examiner noted the Veteran had dorsiflexion of 5 degrees and plantar flexion of 0 degrees. There was no additional loss of function or range of motion after 3 repetitions. The Board acknowledges that the May 2015 VA examiner noted an inversion deformity of the right ankle. However, there is no other evidence of record to support this finding. The November 2018 and the January 2019 VA examiners specifically noted the Veteran’s service-connected disability does not manifest with an inversion deformity. Therefore, the Board finds that the preponderance of the evidence of record does not reflect that the Veteran’s service-connected right ankle disability manifests with an abduction, adduction, inversion, eversion deformity, or with ankylosis in more than 40 degrees in plantar flexion or more than 10 degrees in dorsiflexion for the period of April 29, 2015, to the present. As such, an increased evaluation is not warranted for the period of April 29, 2015, to the present under Diagnostic Code 5270. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40, 4.45, there is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigue, incoordination, or weakness, result in additional limitation of function so as to meet the criteria for a higher evaluation. The July 2011 VA examiner specifically noted no additional limitations after 3 repetitions of range of motion. The May 2015 VA examiner also noted no additional limitations after 3 repetitions of range of motion. The Veteran refused repetitive-use testing due to fear of pain at the November 2018 VA examination. Finally, the January 2019 VA examiner specifically noted no additional limitations after 3 repetitions and no additional limitation of motion after repeated use over a period of time. Therefore, as additional limitation of function was not recorded so as to warrant an increased rating, the Board finds that an increased rating is not warranted under the Deluca criteria for any period of time on appeal. The Board concludes that the evidence supports the assignment of a 30 percent evaluation for the period of April 29, 2015, to the present. The preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for the period of time on appeal prior to April 29, 2015, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and applied appropriately. Fenderson, supra. 4. Entitlement to Extraschedular Ratings. Although a case may be referred to the Director, Compensation Service, for consideration of an extraschedular rating, see 38 C.F.R. § 3.321(b)(1), referral requires that there be symptoms not contemplated by the rating criteria. In Yancy v. McDonald, the Court noted that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted.” 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed.Appx. 1004 (Fed. Cir. 2007). In this case, the Veteran has not raised this issue through his statements, and the evidence of record does not raise this issue through documentation of symptoms not contemplated by the rating criteria. As such, the issue of referral to the Director, Compensation Service, for consideration of an extraschedular rating is not currently before the Board for consideration. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.