Citation Nr: 21004835 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-25 897 DATE: January 28, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right knee is denied. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the left knee is denied. Entitlement to an evaluation in excess of 10 percent for degenerative disc disease with spondylosis of the lumbar spine is denied. Entitlement to an initial compensable evaluation for erectile dysfunction is denied. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s bilateral sensorineural hearing loss has manifested to no greater than level I in the right ear and II in the left ear. 2. The Veteran’s diabetes mellitus requires prescribed oral hypoglycemic agents and injected insulin with restricted diet but no doctor-ordered restricted activities. 3. The Veteran’s degenerative joint disease of the right knee was manifested by pain and flexion greater than 60 degrees and extension has been shown to be less than 5 degrees. 4. The Veteran’s degenerative joint disease of the left knee was manifested by pain and flexion greater than 60 degrees and extension has been shown to be less than 5 degrees. 5. The Veteran’s lumbar spine degenerative disc disease manifested by pain and limitation of motion. The evidence does not show forward flexion of the thoracolumbar spine of 60 degrees or less, combined range of motion of the thoracolumbar spine of 120 degrees or less, or muscle spasm, guarding, or localized tenderness that results in abnormal gait or abnormal spinal contour. 6. Erectile dysfunction is productive of loss of erectile power, but not deformity of the penis. 7. The Veteran is currently service connected for bilateral flat feet with degenerative joint disease of the mid tarsal bones rated at 30 percent; diabetes, rating at 20 percent; degenerative joint disease of the left knee rated at 10 percent; degenerative joint disease of the right knee rated at 10 percent; tinnitus rated at 10 percent; hypertension rated a 10 percent; degenerative disc disease with spondylosis rated at 10 percent; bilateral hearing loss rated as noncompensable; and erectile dysfunction rated as noncompensable. 8. The evidence does not show that the Veteran’s service-connected disabilities preclude the Veteran from obtaining and maintaining substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral sensorineural hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an evaluation greater than 20 percent for service-connected diabetes mellitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913. 3. The criteria for a rating in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5260. 4. The criteria for a rating in excess of 10 percent for left knee degenerative joint disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5260. 5. The criteria for a disability rating more than 10 percent for lumbar spine degenerative disc disease are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 6. The criteria for an initial compensable evaluation for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.115b, Diagnostic Code 7522. 7. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to October 1970 and from January 1973 to July 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of such proceeding is associated with the claims file. These matters were remanded in April 2018. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Hearing loss In this case, the Veteran was granted service connection for bilateral hearing loss in a March 2009 rating decision and assigned an initial noncompensable rating. Thereafter, the Veteran filed a claim for an increase in his disability rating in September 2011 and the RO continued the Veteran’s noncompensable rating in a March 2013 rating decision. The Veteran submitted a notice of disagreement to such continuation and perfected this appeal. The Veteran’s hearing loss is rated under Diagnostic Code 6100. See 38 C.F.R. §§ 4.85, 4.86. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000 and 4,000 cycles per second. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The Veteran underwent a VA audiology examination in December 2011. The pure tone thresholds, in decibels, at the 1000 Hz, 2000 Hz, 3000 Hz, 4000 Hz levels, were recorded as follows: 1000Hz 2000Hz 3000Hz 4000Hz Average Right 10 15 50 55 32 Left 10 50 65 65 48 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear. The Veteran underwent a VA audiology examination in October 2015. The pure tone thresholds, in decibels, at the 1000 Hz, 2000 Hz, 3000 Hz, 4000 Hz levels, were recorded as follows: 1000Hz 2000Hz 3000Hz 4000Hz Average Right 20 40 55 60 43.75 Left 25 55 60 65 51.25 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. The Veteran underwent a VA audiology examination in July 2019. The pure tone thresholds, in decibels, at the 1000 Hz, 2000 Hz, 3000 Hz, 4000 Hz levels, were recorded as follows: 1000Hz 2000Hz 3000Hz 4000Hz Average Right 25 40 65 65 48.75 Left 25 60 75 70 57.5 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 94 percent in the left ear. The regulations provide that in cases of exceptional hearing loss, i.e. when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). Based on the evidence discussed above, Table VIA does not apply. Applying the criteria for evaluating hearing loss to the findings of the December 2011, October 2015 and July 2019 VA examinations results in a Level I designation for the right ear and a Level II designation for the left ear under Table VI. These findings warrant a 0 percent rating. See Tables VI, VIA and VII, 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. The Board notes that, based upon the mechanical application of the audiological results to the rating criteria, at no point during the appeal period is a compensable rating warranted. Thus, as the evidence is against a finding that the Veteran’s hearing loss more nearly approximates the criteria for a higher rating, entitlement to a compensable rating is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86. For these reasons, the claim is denied. Diabetes Mellitus Service connection for diabetes mellitus was granted in an April 2001 rating decision and assigned an initial 20 percent rating. The RO subsequently continued the Veteran’s 20 percent rating in a March 2013 rating decision. The Veteran filed a notice of disagreement to such rating and perfected this appeal. Under Diagnostic Code 7913, a 20 percent rating is warranted when diabetes mellitus requires insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when diabetes mellitus requires insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted when diabetes mellitus requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated. A 100 percent rating is warranted when diabetes mellitus requires more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated. The rating criteria for diabetes are successive. “Successive” rating criteria is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). To assign a rating greater than 20 percent, the Veteran’s diabetes mellitus must require insulin, a restricted diet, and regulation of activities. While the record shows he is on insulin and a restricted diet, there is no evidence that a regulation of activities is required. The Veteran was afforded a VA examination in November 2011. At that examination the examiner confirmed the Veteran’s diagnosis of diabetes mellitus, and found that it was treated by a prescribed oral hypoglycemic agent and prescribed insulin of more than 1 injection per day. The examiner noted that the Veteran required regulation of activities as part of medical management of his diabetes, but when asked to explain how, the examiner noted the Veteran needs diet modifications. The examiner noted that the Veteran needs to visit his diabetic care provider for episodes of ketoacidosis less than 2 times per month and he has been hospitalized 0 times over the past 12 months. He noted that 0 episodes of hypoglycemia require hospitalization over the past 12 months. The Veteran has not had any progressive unintentional weight loss attributed to his diabetes. He has not had any noted complications of diabetes, although he has had erectile dysfunction associated with his diabetes. The examiner noted that the Veteran’s DM did not impact his ability to work. In October 2015 the Veteran was afforded another VA examination for his diabetes mellitus. At that examination the examiner found that the Veteran’s diabetes is treated with prescribed oral hypoglycemic agents and prescribed insulin more than 1 injection per day. The examiner noted that the Veteran’s diabetes did not require regulation of activities as part of medical management of diabetes. The examiner noted that the Veteran visited his diabetic care provider less than two times a month, with 0 episodes of keotacidosis requiring hospitalization and 0 episodes of hypoglycemia requiring hospitalization. The Veteran had not had progressive unintentional weight loss or progressive loss of strength attributable to his diabetes. The examiner did not note any complications of diabetes, but did note that the Veteran’s diabetes caused erectile dysfunction. The examiner also found that the Veteran’s diabetes has at least as likely as not aggravated his hypertension. The examiner noted that the Veteran’s diabetes did not impact his ability to work. Finally, the Veteran was afforded a VA examination for his diabetes in July 2019. At that examination the examiner found that the Veteran’s diabetes was treated with insulin but that the Veteran did not regulate activities as part of his medical management of diabetes. He had visited his diabetic care provider for episodes of ketoacidosis less than 2 times per month and for episodes of hypoglycemia also less than 2 times per month. He had 0 hospitalizations for ketoacidosis or hypoglycemia over the past 12 months. The Veteran did not show any unintentional weight loss or loss of strength attributable to his diabetes mellitus. The examiner noted that the Veteran’s diabetes did not impact his ability to work. VA examinations specifically note that there is no regulation of activities as part of the medical management of the Veteran’s diabetes mellitus. The Board notes that mention of a need for regulation of activities at the Veteran’s December 2011 examination, but finds that as the examiner specified that this regulation activities was really a regulation of diet, it was not a true regulation of physical activities. See December 2011, October 2015 and July 2019 VA examinations. Furthermore, the Veteran received diabetic care fewer than twice a month for episodes of ketoacidosis or hypoglycemia, and he had no hospitalizations for episodes. In the absence of a regulation of activities, a rating greater than 20 percent for diabetes mellitus is not warranted at any time during the appeal. Tatum, 23 Vet. App. at 156. As the preponderance of the evidence is against the assignment of an increased rating, the benefit-of-the-doubt rule is not applicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. Bilateral knees The Veteran filed a claim for increase in his bilateral knee disabilities in September 2011. Thereafter, in a March 2013 rating decision the Veteran’s 10 percent was continued. Thereafter, the Veteran filed a notice of disagreement to such rating and perfected an appeal to such. The applicable rating codes are as follows. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of leg extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. Under Diagnostic Code 5258, a 20 percent is warranted for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion in to the joint. The Board also notes that under Diagnostic Code 5259, a 10 percent rating is warranted for cartilage, semilunar, removal of, symptomatic. VA General Counsel has held that separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 (September 17, 2004). Under Diagnostic Code 5257, for other impairment of the knee, including subluxation or lateral instability. Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. In February 2013 the Veteran was afforded a VA examination for his bilateral knee disabilities. The examiner reviewed the Veteran’s claims file and noted that the Veteran had degenerative joint disease of the bilateral knees. He noted the Veteran’s medical history of knee pain which began during active military duty. The Veteran attributes such pain to chronic wear and tear, and not to any specific injuries. He noted he has intermittent bilateral knee pain, the left knee greater than the right, and worse when climbing stairs. He noted occasional left knee instability but no significant swelling. The Veteran did not note that flare ups of the knee impact the function of the knee or lower leg. The examiner noted that the right knee flexion ended at 130 degrees and painful motion began at 130 degrees. Right knee extension ended at 0 degrees with no objective evidence of painful motion. Left knee flexion also ended at 130 degrees with evidence of painful motion at 130 degrees and left knee extension ended at 0 degrees with no notation of pain upon motion. The Veteran was able to perform repetitive use testing with 3 repetitions, with flexion ending at 130 degrees and extension ending at 0 degrees for both knees. Functional loss and functional impairment of the bilateral knees was noted, specifically less movement than normal in both knees and pain on movement. The Veteran did not have tenderness or pain to palpation for joint line for soft tissues of either knee. Muscle strength testing of both knees was normal and joint stability testing was normal. There was no evidence of any history of recurrent patellar subluxation/dislocation. Shin splints were not noted. No meniscal condition was noted. The Veteran was not noted as using any assistive device as a result of his knee conditions. Diagnostic testing showed traumatic arthritis of both knees. The Veteran noted that his knee conditions impacted his ability to work, specifically causing difficulty climbing flights of stairs at work, which exacerbated his knee pain. The Veteran was afforded VA examinations of the bilateral knees in June 2015. At that examination, the Veteran reported that there was no change in the diagnosis of the right and left knee degenerative joint disease and that the Veteran’s condition was active. The Veteran reported the onset of knee pain as 2000, and stated that the condition began when he developed pain in his knees and that the condition has gotten worse. The Veteran reported flare ups of the bilateral knees, specifically causing difficulty squatting all the way down. The range of motion of the Veteran’s right knee measured flexion to 95 degrees, extension to 0 degrees. The examiner found that range of motion itself contributed to functional loss, specifically causing the Veteran unable to be able to squat down and kneel. The examiner noted no pain upon examination, and no localized evidence of tenderness or pain upon palpation of the joint or associated soft tissue. The Veteran’s left knee measured flexion to 105 degrees and extension to 0 degrees. The Veteran’s range of motion contributed to the functional loss of being unable to squat down or kneel. Again no pain was noted upon examination and there was no evidence of localized tenderness or pain upon palpation of the joint or associated soft tissue. In both knees the Veteran was able to perform repetitive use testing without additional loss of function or range of motion after three repetitions. The examiner did not indicate that pain, weakness or fatigability or incoordination significantly limited functional ability with repeated use over a period of time. The examiner noted no contributing factors to the Veteran’s disabilities. Muscle strength testing was normal with no reduction in muscle strength and the Veteran did not show muscle atrophy. There was no ankylosis noted of either knee. Joint stability testing was normal, with no history of recurrent subluxation, lateral instability or recurrent effusion. No prior meniscal condition was noted and the Veteran was not noted as using any assistive device to help with ambulation due to his knees. The examiner noted that the Veteran’s knees impacted his work, specifically causing him to be unable to kneel or squat. In July 2019 the Veteran was afforded another VA examination for his knee disabilities. At that examination the Veteran reported continued knee pain symptoms since service, and that the pain had increased over the years. He noted that he experienced intermittent pain in the bilateral knees, more so in the right knee and also that he experienced intermittent buckling in the right knee. He noted he had previous treatment of injections into the right knee, and physical therapy for both knees in addition to Tylenol as needed. The Veteran reported flare ups of the knees, specifically that he experienced a flare up on increased pain on one or both knees after walking a long distance. The Veteran reported experiencing functional loss or functional impairment of the joints being evaluated, specifically noting that he tried to limit how far he walks and also limits the frequency of stair climbing. Upon range of motion testing, the Veteran’s flexion of the right knee was to 102 degrees and extension was to 2 degrees. He noted such range of motion contributed to functional loss, stating that brisk walking and running mechanics are impaired by this reduced range. The Veteran noted that extension range of motion exhibited pain. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, specifically of the lateral patella area of mild nature, consistent with degenerative joint disease. There was evidence of pain with weight bearing. Flexion of the left knee was to 100 degrees, extension was to 0 degrees. Range of motion contributed to functional loss, specifically again noting brisk walking and running. The Veteran noted that flexion of the knee exhibited pain. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, specifically of the lateral patella area of mild nature, consistent with degenerative joint disease. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. The examiner noted that pain, weakness, fatigability and incoordination significantly limited functional ability with repeated use over a period of time. Specifically, pain caused functional loss but the examiner was not able to describe such in terms of range of motion. The examiner explained that there was no further range of motion less anticipated after repeated use over time, but only increased symptoms of pain and thus no range of motion estimate was warranted. The examiner noted that the examination was not being conducted during a flare up. Muscle strength testing of both knees was normal and there was no noted ankylosis of either knee. Joint stability testing was normal. There was no noted meniscal condition of either knee noted, and the Veteran did not indicate that he needed an assistive device for either knee. Diagnostic testing revealed degenerative arthritis of both knees. With regard to functional impact to his work, the examiner noted that the Veteran should avoid jobs which required walking or standing throughout the workday and jobs that require repeated stair climbing which can cause increased knee pain. There was no objective evidence of pain on weight bearing and passive range of motion testing was the same as active range of motion testing. After a review of all the evidence, the Board finds that the evidence weighs against a disability rating in excess of 10 percent under DCs 5260 or 5261 for the entire rating period on appeal. Specifically, flexion was not shown to be limited to 30 degrees or less and extension was not shown to be limited to 15 degrees or less. In fact, limitation of motion has not been shown to be limited to a compensable degree (45 degrees flexion) or (10 degrees extension) or even at a noncompensable degree (60 degrees flexion) or (5 degrees extension). Therefore, a higher rating under diagnostic codes 5260 or 5261 is not warranted. Moreover, with regard to consideration of Diagnostic Codes 5258 and 5259, the evidence of record is absent symptoms specifically pertaining to the meniscus. Notably, there was no report of locking or dislocation documented during the February 2013, June 2015 or July 2019 VA examinations. As such, the Board finds that an increased rating is not warranted with consideration of Diagnostic Code 5258 and Diagnostic Code 5259. In light of the above, the Board finds that the criteria for a rating in excess 10 percent for a bilateral knee disability based on limitation of motion and meniscal surgery have not been met. Therefore, the Veteran’s claim for entitlement to increased rating for his bilateral knee disability must be denied. The Board further finds that additional separate ratings are not warranted under additional diagnostic codes. The Board notes that there is no evidence of ankylosis of either knee. Thus, Diagnostic Code 5256 does not apply in this case. Also, there is no documentation of any malunion of the tibia or fibula. Therefore, the Board finds that Diagnostic Code 5262 pertaining to impairment of the tibia and fibula is not for application. Lastly, there was no finding of genu recurvatum, so Diagnostic Code 5263 is not for application. With regard to a rating under Diagnostic Code 5257, evidence of recurrent subluxation or lateral instability has not been shown on objective examination at any point during the appeal period. The Board observes that the Veteran has asserted at his July 2019 examination that on occasion his right knee gives out and he experiences instability. However, the Board affords more probative value to the results of the VA examinations as the various tests were specifically designed to ascertain whether instability (Lachman test, posterior drawer test, valgus/varus) was present were normal. Thus, the Board concludes that a rating under Diagnostic Code 5257 is not for application. Lumbar Spine The Veteran was awarded service connection for low back strain in an April 1992 rating decision and was assigned an initial noncompensable rating. The Veteran filed an increased rating claim for the lumbar spine disability in September 2011 and perfected an appeal for a rating in excess of 10 percent for his low back disability, rated as degenerative joint disease with spondylosis. The Schedule for Rating Criteria mandated that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine. This General Rating Formula assigns disability ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under this formula, a 10 percent rating when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent disability rating is for assignment when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or with a combined range of motion not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent disability rating is for assignment when forward flexion of the thoracolumbar spine is 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine. The criteria for Intervertebral Disc Syndrome (IVDS) also potentially apply. Under the rating criteria, IVDS may be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or otherwise based upon the frequency and severity of its incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The specific formula for IVDS provides: If there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks, a 10 percent rating is warranted; if at least 2 weeks but less than 4 weeks, a 20 percent rating; if at least 4 weeks but less than 6 weeks, a 40 percent rating is warranted; and where there are incapacitating episodes with a total duration of at least 6 weeks during the past 12 months, the assignment of a maximum 60 percent rating is warranted. Note (1) to the rating criteria provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, for Intervertebral Disc Syndrome. During the October 2012 VA examination, flexion was reported to 80 degrees and the Veteran was able to perform three repetitions without additional limitations. There was pain on movement. There was no guarding or muscle spasm of the spine. Muscle strength testing was 5/5. Reflex and sensory examinations were normal. Straight leg testing was negative and there were no reported signs of radicular pain. The Veteran was afforded a disability benefits questionnaire in June 2015. At that examination the examiner found that the Veteran was diagnosed with degenerative disc disease of the lumbar spine. The Veteran noted the onset of his symptoms in 2000, when he developed pain in his lumbar spine with no known injury. He had pain in the lumbar spine most of the time, but he noted no radiation of pain. He has not had an MRI of his lumbar spine. He noted that he can sit for an hour and walk for 20-30 minutes. He uses no assistive devices and he has no incontinence of urine or the bowels. He noted he has not had any treatment for his back and that his condition has gotten worse. The Veteran reported that he does not experience flare ups of the lumbar spine and that he does not experience any functional loss or functional impairment of the lumbar spine. The range of motion testing was abnormal, with flexion to 65 degrees, extension to 30 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. The examiner noted that the Veteran’s range of motion itself did not contribute to functional loss. He also indicated that no pain was noted upon examination and there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. He was able to perform repetitive use testing with at least three repetitions and that there was no additional loss of function or range of motion after three repetitions. The examiner noted that pain, weakness, fatiguability or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran was not noted as having guarding or muscle spasm of the thoracolumbar spine. The Veteran’s muscle strength testing was normal, with no noted muscular atrophy. The Veteran’s reflex examination was normal and his sensory examination was normal. Straight leg testing was negative and there was no indication of any signs or symptoms due to radiculopathy. Ankylosis of the spine was not noted and there were further no neurologic abnormalities. The Veteran did not have IVDS of the thoracolumbar spine. The Veteran did not note the use of any assistive devices. The Veteran noted that his disability impacted his ability to work, specifically causing pain with picking up heavy items. In July 2019 the Veteran was afforded a VA examination for his lumbar spine. At that examination the Veteran’s diagnosis of degenerative disc disease of the lumbar spine was confirmed. The Veteran reported a gradual onset of low back pain and noted that he continues to have low back pain and the back pain has worsened over the years. He noted that he experiences intermittent low back pain and that he also experiences intermittent back pain into each lower extremity to just below the knee and intermittent tingling in each foot. The Veteran takes Tylenol as needed to treat the low back pain. The examiner noted that the Veteran reported flare ups of the lumbar spine, and that he would specifically experience a flare up of back pain lasting 10-15 minutes after repeated lifting or sitting for long periods. The Veteran noted that he had functional loss or functional impairment of the back specifically that he tried to avoid heavy lifting. Upon range of motion measurement, the Veteran showed forward flexion of the lumbar spine to 78 degrees and extension to 22 degrees. He showed right lateral flexion to 18 degrees and left lateral flexion to 15 degrees and right lateral rotation to 8 degrees and left lateral rotation to 12 degrees. The examiner noted that the range of motion itself contributed to functional loss, specifically that he must compensate for this reduced range of motion by using more pelvic and upper trunk motions. The examiner noted that the Veteran has pain noted on examination causing functional loss. The examiner noted pain upon all range of motion measurements. There was objective evidence of localized tenderness or pain on palpation of the joint, specifically in the lower lumbar area bilaterally of moderate severity which was consistent with degenerative disc disease and spondylosis. The examiner noted there was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function of range of motion after three repetitions. The examiner noted that pain, weakness and fatigability significantly limited functional ability with repeated use over time, specifically noting pain that caused this functional loss. The examiner noted he was not able to describe this pain in terms of range of motion. The Veteran’s examination was not conducted during a flare ups. The Veteran did not having guarding or muscle spasm of the lumbar spine. The Veteran’s muscle strength testing was normal and there was no noted muscular atrophy. Reflex examination was normal and sensory examination was normal. Straight leg testing was negative and the Veteran did not show any signs of radiculopathy related to his lumbar spine disability. There was no noted ankylosis of the spine and no other noted neurologic abnormalities. The Veteran did not have any noted IVDS of the lumbar spine. No assistive devices were noted as being necessary for ambulation. Diagnostic imaging of the lumbar spine has not been performed. The examiner noted that the Veteran’s lumbar spine disability impacted his work, specifically finding that he should avoid jobs that require heavy lifting or repeated bending in order to prevent flares of his back pain. He should work in a job where he can adjust his position between sitting and standing when necessary. With regard to whether the Veteran is entitled to a disability rating in excess of 10 percent for his lumbar spine disability, as discussed above, to warrant a 20 percent disability rating, the Veteran must show forward flexion of the thoracolumbar spine between 30 degrees and 60 degrees; the combined range of motion of the thoracolumbar spine of 120 degrees or less; or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. However, review of the evidence of record including the VA examinations does not reveal symptomatology consistent with a 20 percent disability evaluation. Indeed, there are no findings during this period that document forward flexion of the thoracolumbar spine less than 60 degrees; the combined range of motion of the thoracolumbar spine of 120 degrees or less; or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The evidence does not indicate that he has IVDS. Therefore, the Veteran’s lumbar spine degenerative disc disease does not warrant an increased disability rating alternatively under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes at any time during the course of this appeal. Erectile Dysfunction Erectile dysfunction is rated under Diagnostic Code 7522. A 20 percent rating is assignable for physical deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b. In October 2015 the Veteran was afforded a VA examination for his erectile dysfunction. At that examination the examiner found that the Veteran did have a diagnosis of erectile dysfunction, with a plan of continued medication for his diagnosis. The Veteran did not note any voiding or renal dysfunction due to his disability. Examination of the penis and testes revealed normal findings. The Veteran’s July 2019 VA examination reflects that the Veteran was diagnosed with erectile dysfunction which he treats with Viagra when needed. He noted that the condition worsened over time and has continued to the present. The examiner noted that he is not able to achieve an erection sufficient for penetration and ejaculation without medication and that he did not have retrograde ejaculation. The Veteran’s physical examination of his penis was normal and of his testes was normal. The examiner noted that the Veteran’s erectile dysfunction did not impact his ability to work. The Board notes that because "deformity" is not defined in the rating criteria, the term is given its ordinary meaning. In medical terminology, a "deformity" is a distortion of any part or general disfigurement of the body. Dorland's Illustrated Medical Dictionary 478 (32nd ed. 2012). A synonym for "deformity" is "misshapen." Webster's New College Dictionary 718 (3d ed. 2008). There is no evidence that the Veteran has any physical deformity of his penis that meets this definition. Without evidence of deformity of the penis, there is no basis for the assignment of an initial compensable evaluation for erectile dysfunction. Accordingly, the Board finds that there is a preponderance of the evidence against the claim for an initial compensable evaluation for erectile dysfunction, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). TDIU The Veteran has claimed that his work is impacted by his service-connected disabilities. After review of the evidence of record, the Board finds that entitlement to TDIU is not warranted. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). In accordance with the above decision, the Veteran’s service connected disabilities include: bilateral flat feet with degenerative joint disease of the mid tarsal bones, rated at 30 percent, diabetes, rating at 20 percent, degenerative joint disease of the left knee rated at 10 percent, degenerative joint disease of the right knee rated at 10 percent, tinnitus rated at 10 percent, hypertension rated a 10 percent, degenerative disc disease with spondylosis rated at 10 percent, bilateral hearing loss rated as noncompensable and erectile dysfunction rated as noncompensable. The combined disability rating is 70 percent. The Veteran does meet the schedular requirements for TDIU. See 38 C.F.R. § 4.16(a). The Veteran initially filed an informal claim for TDIU at his November 2017 Board hearing. See November 2017 Board Hearing transcript p. 24. The Veteran noted specifically that his back and knees limit his ability to lift things as part of his job. He also noted that he has to urinate more frequently and that it is embarrassing when he walks outside of his office and people see him going to the bathroom within an hour or hour and a half. In July 2019 at the Veteran’s audio VA examination the Veteran reported difficulty understanding speech and noted that he needs hearing aids to hear. He reported that this impacts his work. See July 2019 Audiology examination. The Veteran did not report that his tinnitus impacted his work. Thereafter, at his July 2019 VA examination for diabetes the examiner reported that the Veteran’s diabetes mellitus did not impact his ability to work. The December 2011 VA examination noted that pes planus resulted in intermittent pain. At his bilateral knee examination in July 2019 the examiner noted that the Veteran’s knee disabilities did impact his ability to work, as he should avoid jobs that require walking or standing throughout the workday and jobs that require repeated stair climbing which can cause increased knee pain. In July 2019 the examiner at the Veteran’s erectile dysfunction examination noted that the Veteran’s erectile dysfunction did not impact his ability to work. The back examiner in July 2019 noted that the Veteran’s work was impacted as a result of his lumbar spine disability, as he should avoid jobs that require heavy lifting or repeated bending in order to prevent flares of his back pain. He should work in a job where he can adjust his position between sitting and standing whenever necessary. The Board notes that at the November 2017 hearing the Veteran reported that he is still working as a records manager at a college and that he has been there for 19 years. See November 2017 Board hearing transcript p. 22. He noted that two years ago he switched to part time work, but noted that it was not due to any of his service-connected conditions but instead to the college’s budget. The Veteran noted that every now and again he has to lift 35 pound boxes as part of his occupational duties. See p. 23. (Continued on the next page)   The Board concludes that his disabilities result in limitations to standing, lifting, and prolonged walking they do not prevent employment where he can alternate between a sitting/standing position and that does not require heavy lifting. He is also not shown to be prevented from employment where heavy phone use or excellent hearing is not required. In closing, the Board does not doubt that the Veteran's service-connected disabilities have some impact on his employability. However, in light of the foregoing, the Board concludes that the most probative evidence of record weighs against a finding that the Veteran's service-connected disabilities prevent him from securing or following any substantially gainful employment. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.