Citation Nr: 21005230 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-49 402 DATE: January 29, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome with osteoarthritis, left knee, is denied. Entitlement to an increased rating in excess of 10 percent for bilateral pes planus with hind foot valgus, bunion formation, and degenerative arthritis, prior to October 2, 2020, and in excess of 30 percent since October 2, 2020, is denied. Prior to March 7, 2019, a rating in excess of 10 percent for apophysis, anterior inferior plate of L3-L5 and retrolisthesis of L5 on S1, is denied. From March 7, 2019, to October 1, 2020, a 20 percent rating for apophysis, anterior inferior plate of L3-L5 and retrolisthesis of L5 on S1, is granted. From October 2, 2020, a rating in excess of 40 percent for apophysis, anterior inferior plate of L3-L5 and retrolisthesis of L5 on S1, is denied. Entitlement to an earlier effective date of March 7, 2019, for the assignment of a 20 percent initial rating for radiculopathy of the right lower extremity is granted. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. The Veteran’s service-connected patellofemoral syndrome with osteoarthritis, left knee, has not been manifested by flexion limited to 45 degrees or less nor has it resulted in extension limited to 5 degrees or more, or any instability of the joint. 2. Prior to October 2, 2020, the Veteran’s bilateral pes planus is manifested by pain and marked pronation, but the evidence does not reflect pain on manipulation and use accentuated, swelling on use, or characteristic callosities. 3. From October 2, 2020, the Veteran’s bilateral pes planus has been manifested by pain, muscle spasms and occasional swelling, use of shoe inserts, and limitations on sitting, standing, and walking, but is not manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement or severe spasm of tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 4. Prior to March 7, 2019, the Veteran’s apophysis, anterior inferior plate of L3-L5 and retrolisthesis of L5 on S1, manifested in complaints of flare-ups, pain, and restricted range of motion, but not flexion limited to 60 degrees or less or range of motion 120 degrees or less or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 5. From March 7, 2019, to October 1, 2020, the evidence reflects thoracolumbar spine flexion limited to 60 degrees. 6. From October 2, 2020, there is evidence of spinal flare-ups and functional impairment and loss including limitations with standing, sitting, and walking for periods greater than 10 minutes, but no evidence of ankylosis. 7. The most probative evidence shows a neurological disability of the right lower extremity onset on March 7, 2019. 8. The Veteran’s radiculopathy of the right lower extremity has manifested in moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness, but not moderately-severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for patellofemoral syndrome with osteoarthritis, left knee, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for an increased rating in excess of 10 percent for bilateral pes planus with hind foot valgus, bunion formation and degenerative arthritis, prior to October 2, 2020, and in excess of 30 percent on and after October 2, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.118, Diagnostic Code 5276. 3. Prior to March 7, 2019, the criteria for a rating in excess of 10 percent for apophysis, anterior inferior plate of L3-L5 and retrolisthesis of L5 on S1, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 4. From March 7, 2019, to October 1, 2020, the criteria for a rating of 20 percent, but no higher, for apophysis, anterior inferior plate of L3-L5 and retrolisthesis of L5 on S1, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 5. From October 2, 2020, the criteria for a rating in excess of 40 percent for apophysis, anterior inferior plate of L3-L5 and retrolisthesis of L5 on S1, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 6. The criteria for an earlier effective date of March 7, 2019, for the assignment of an initial 20 percent rating for right lower extremity radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 7. The criteria for an initial rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1996 to November 2001. These matters come before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board recognizes that additional VA treatment records have been associated with the record following the October 2020 Supplemental Statement of the Case. However, the only relevant record is duplicative of an earlier record noting identical findings that has already been reviewed and considered by the RO. A waiver of initial consideration by the RO is not required. In addition, the issues of entitlement to a higher rating for radiculopathy, as well as the grant of an earlier effective date for that assigned rating, are included as issues on appeal. Such action is appropriate because the issue of entitlement to a separate rating for a neurological disability is part of the claim for an increased rating for the apophysis, anterior inferior plate of L3-L5 and retrolisthesis of L5 on S1. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans’ Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. There is no indication in the record that the Veteran is unemployed, and he has not alleged unemployability. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claims for increased ratings. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in March 2014. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Concerning VA examinations, the Board first notes that the July 2014 VA examinations pertaining to all disabilities on appeal do not show review of the claims file by the examiner. However, such an omission does not render the findings made on examination inadequate to evaluate the Veteran’s disabilities. Further, concerning the July 2014 VA examination for pes planus, the examiner did not indicate whether passive range of motion testing was completed. However, there are no range of motion findings pertaining to pes planus and its relevant rating criteria and the examiner appropriate tested weight-bearing in connection with the applicable rating criteria. The Board finds the examination findings adequate. The Veteran was also provided VA examinations for his knees in July 2014 and April 2015 and a VA examination for his spine in July 2014. These examination reports do not reflect identification of passive range of motion testing or weight-bearing testing and the Board may not utilize the range-of-motion findings to deny his claims. However, the other findings made on examination, including the Veteran’s statements concerning his symptoms, are considered adequate and the Board will consider them in evaluating the Veteran’s disabilities. Moreover, the Veteran was provided adequate VA examinations in October 2020 that comply with the Board’s December 2019 remand directives. As such, VA has satisfied its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Disability Ratings – In general Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating any disability based on limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). While pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Additionally, flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Initial Rating - Patellofemoral syndrome with osteoarthritis, left knee Of note, the Veteran was service connected for left knee patellofemoral pain syndrome, rated 0 percent from November 11, 2001, under Diagnostic Code 5299-5257. This indicates the diagnosed condition was not listed in the schedule, but was rated by analogy to “Knee, other impairment of.” That Code actually rates based on instability of the joint, but the granting decision specified there was no evidence of instability. Therefore, the decision on appeal changed the applied Code to 5260-5003, to properly reflect that the disability was manifested by arthritis and painful motion. The change did not work a severance, as the actual disability labeled did not change between 2001 and 2014. Murray v. Shinseki, 24 Vet. App. 420 (2011). The Veteran’s left knee disability is rated as 10 percent disabling under Diagnostic Code 5260. Under Diagnostic Code 5260, a 0 percent rating is assigned for flexion of that knee that is limited to flexion of the knee is limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. A knee disability may also be rated based on extension under Diagnostic Code 5261. If extension of the knee is limited to 5 degrees, a 0 percent rating assigned. If extension is limited to 10 degrees, a 10 percent rating is in order. If limitation is to 15 degrees, a 20 percent rating is warranted. If extension of the knee is limited to 20 degrees, a 30 percent rating is in order. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability of a knee. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Simultaneous ratings under Diagnostic Codes 5260 and 5261 are permissible, as the measure impairments in different planes of motion. VAOPGCPREC 9-04. By extension, evaluations under Diagnostic Code 5257 and either or both Diagnostic Codes 5260 and 5261 are permissible, as each of the three codes measures different criteria. VA treatment records show complaints of knee and joint pain. The Veteran was provided a VA examination in July 2014. Again, because the examiner did not address passive range of motion testing or weight-bearing testing, the Board may not use the range of motion findings to deny the Veteran’s claim for a higher rating. The report shows diagnoses of osteoarthritis and patellofemoral syndrome. The Veteran reported that his condition began with pain, possibly due to prolonged standing as well as walking and climbing. The Veteran stated that his condition worsened over time and that his left knee buckled. He also reported that his knee was stiff and sore in the morning. He reported flare-ups described as intense pain. On examination, the left knee exhibited flexion to 120 degrees and extension to 0 degrees. There was no objective evidence of painful motion. The Veteran was able to perform repetitive testing and there was no change in the range of motion measurements. The examiner indicated that the Veteran experienced less movement than normal and pain to palpation to joint line or soft tissue. Muscle strength testing was normal and stability tests were normal. There was no history of dislocation or subluxation. He had shin splints, but reported no symptoms. There were no meniscal conditions. The Veteran did not use an assistive device. The examiner indicated that there was no functional impairment that would impact the Veteran’s left knee on repeated use or flare-ups. In February 2015, the Veteran stated that he had tenderness, swelling, and occasional grinding and popping, of the knees. In April 2015, the Veteran was provided another VA examination. The examiner reviewed the claims file. The Veteran reported popping of his left knee. The examiner noted that there was no swelling, locking, or true instability. The Veteran did not report flare-ups or functional impairment or loss after repeated use. There was no pain on weight-bearing. Range of motion was normal; however, the examiner did not indicate whether passive range of motion testing was completed. Accordingly, these range of motion measurements will not be used to deny the Veteran’s claim. Muscle strength testing was normal. There was no ankylosis. There was no history of subluxation, instability, or recurrent effusion. Stability testing was normal. The Veteran did not use an assistive device. The examiner noted that there was no functional impact on work. VA treatment records show complaints of pain. An April 2018 VA treatment record shows that the Veteran reported chronic pain that was sharp and sore at times to a degree of 8/10. A July 2019 VA treatment record reflects that the Veteran had knee pain with an uncomfortable sensation marked by being tender or sore. He avoided most medications. In October 2020, the Veteran was provided a VA examination. The examiner reviewed the Veteran’s claims file. The Veteran reported symptoms of pain, stiffness, and popping. He stated that his knee gave out and that he had occasional swelling. He used Motrin and Flexeril and reported pain at a 10/10. The Veteran stated that his knee had worsened over the last 18 months. He was unable to sit, stand or walk for periods greater than 10 minutes. The Veteran reported flare-ups described as pain when sitting, standing, or walking for periods more than 10 minutes. The frequency of the flare-ups was daily, of a moderate to severe severity, and lasted for hours. The Veteran also reported functional impairment and loss after periods of repeated use described as an inability to sit, stand, or walk for periods greater than 10 minutes. On examination, the left knee exhibited flexion to 100 degrees and extension to 0 degrees. The range of motion itself resulted in functional loss described as an inability to sit, stand, or walk for periods of greater than 10 minutes. Pain on examination caused functional loss. Flexion and extension exhibited pain. The left knee had achy pain to the touch and was of a moderate to severe degree. There was pain on weight-bearing and evidence of crepitus. The Veteran was able to perform repetitive-use testing and there was no additional loss of range of motion after that testing. Regarding repeated use over time, pain caused functional loss and impairment. The examiner estimated that flexion would be reduced to 90 degrees and extension remained at 0 degrees. Regarding flare-ups, the examiner noted that pain would cause additional functional impairment and loss during flare-ups. The examiner estimated that flexion would be reduced to 90 degrees and extension would remain the same. Muscle strength testing was 4/5 in the areas tested. There was a reduction in muscle strength. There was no ankylosis. There was no history of subluxation, instability, or recurrent effusion. Stability testing was normal. There was no swelling that day on examination. The Veteran had shin splints that impacted his range of motion. The Veteran constantly used a cane. The examiner determined that the Veteran’s left knee disability impacted his ability to perform occupational tasks such as his inability to sit, stand, or walk for periods greater than 10 minutes. He lost approximately two to four weeks of work over the last 12-month period. The examiner explained that there was pain on passive range of motion testing and when the joint was used in non weight-bearing. After a careful review of all the medical and lay evidence of record and considering possible additional functional loss and impairment with repeated use or during flare-ups, the Veteran’s disability picture does not more nearly approximate flexion limited to a compensable degree, let alone flexion limited to 30 degrees to warrant a 20 percent rating. Though the October 2020 VA examiner estimated that the Veteran’s left knee flexion would be reduced to 90 degrees during repeated use and a flare-up, again, this finding is not akin to flexion limited to 30 degrees to warrant a higher rating. The Board has also considered whether the Veteran would be entitled to a separate or higher initial rating under Diagnostic Code 5261 for limitation of extension. However, the evidence does not show that extension has been limited to 5 degrees to warrant even a noncompensable rating. Even considering functional impairment during flare-ups and repeated use, the evidence does not reflect that his disability picture would limit his extension to 10 degrees to warrant a separate compensable rating under Diagnostic Code 5261. Concerning a separate or higher rating for recurrent instability, the Veteran has reported that his knee buckled and gave way. In English v. Wilkie, the Court determined that Diagnostic Code “5257 [does not] speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability.” 30 Vet. App. 347, 349 (2018). The Board has considered the Veteran’s descriptions of his knee symptomatology. However, the VA examination report noted that there was no history of subluxation or instability and the stability testing was normal. In addition, VA medical treatment records do not reflect any findings of instability. The medical evidence throughout the appeal period does not reflect any instability on examination and the Board finds that evidence more persuasive than the Veteran’s assertions. Finally, consideration of other Diagnostic Codes for rating the Veteran’s left knee disability (5256, 5258, 5262, 5263) is inappropriate. The Veteran’s left knee disability does not include the pathology required in the criteria for those Diagnostic Codes (ankylosis, meniscus condition, malunion or nonunion of tibia or fibula, or genu recurvatum). Regarding shin splints, the VA examination reports show that his shin splints affect his range of motion in his knees, the results of which were recorded in the range of motion findings in the examination report. As such, the Board finds that assigning a separate rating for shin splints and the Veteran’s limitation of motion for his knee would not be appropriate as the Veteran’s left knee disability is already rated based on limitation in range of motion. 38 C.F.R. § 4.14. Accordingly, a preponderance of the evidence is against an initial rating in excess of 10 percent for left knee strain and the claim is denied. Increased Rating – Bilateral Pes Planus The Veteran’s bilateral pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, pertaining to acquired flatfoot. Under Diagnostic Code 5276, pes planus warrants a 10 percent rating when moderate, weight-bearing line over or medial to great toe, inward bowing of the Achilles tendon, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent rating may be assigned for severe bilateral pes planus manifested by objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. A maximum 50 percent rating may be assigned for pronounced bilateral pes planus manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Disabilities of the feet are also rated under Diagnostic Codes 5277 through 5284. 38 C.F.R. § 4.71a. Diagnostic Code 5277 pertains to bilateral weak foot, Diagnostic Code 5278 addresses claw foot (pes cavus), Diagnostic Code 5279 rates anterior metatarsalgia, Diagnostic Code 5280 pertains to hallux valgus, Diagnostic Code 5281 addresses hallux rigidus, Diagnostic Code 5282 rates hammer toe, Diagnostic Code 5283 pertains to malunion or nonunion of the tarsal or metatarsal bones, and Diagnostic Code 5284 addresses other foot injuries. VA medical treatment records show complaints of foot pain. An April 2018 VA treatment record noted that the Veteran’s pain had worsened over the last year. He reported that the pain was sore and sharp at times with an 8/10 in intensity. In July 2014, the Veteran was provided a VA examination. The examiner noted diagnoses of flat feet and metatarsalgia. It was also noted that the Veteran had bunion formation. The Veteran reported flare-ups that impact the function of the foot and described the impact as an inability to move. There was no other report of functional loss or functional impairment regardless of repetitive use. On examination, the Veteran had reported pain on use, but no pain accentuated on manipulation. There was no indication of swelling on use and no characteristic calluses. The Veteran did not have extreme tenderness of plantar surfaces on one or both feet and there was no indication that the Veteran used orthotics, built up shoes, or arch supports. There was no decreased longitudinal arch height of one or both on weight-bearing and no objective evidence of marked deformity of one or both feet. There was marked pronation of both feet. The weight-bearing line did not fall over or medial to the great toe. There was no other lower extremity deformity causing alteration of the weight bearing line, and there was no inward bowing of the achilles tendon. The Veteran did not have marked inward displacement and severe spasm of the achilles tendon on manipulation. Concerning pain, the examiner noted that there was pain regarding the right foot, but the pain did not contribute to functional loss because the Veteran was able to be fully weight-bearing without foot problems limiting his work as postal carrier. Concerning the left foot, the examiner noted that the Veteran’s pain response was subjective and there was no pain on physical examination. The examiner found that there was no functional loss for either lower extremity and that pain, weakness, fatigability or incoordination would not significantly limit functional ability during flare-ups or when the foot was used repeatedly over time. Finally, the examiner commented that the Veteran had pain on examination, but he was only tender on the right 2nd metatarsal head on palpation. Other than that, his bilateral foot examination was within normal limits. In February 2015, the Veteran indicated that his feet had tenderness, swelling, and excruciating pain at times. He stated that when the arch ligament stretched or tore, the ach falls and the tarsals may begin to shift to the inside or create pronation or a valgus position at the ankle. In October 2020, the Veteran was provided a VA examination. The Veteran’s claims file was reviewed. The Veteran reported that he experienced muscle spasms in the middle of both feet. He wore shoe inserts with no relief and took Motrin for pain. The Veteran stated that his pain was 10/10 and that his feet had gotten worse in the past 18 months. He had pain when sitting, standing, and walking for periods greater than 10 minutes. He reported that his pain was burning and aching and that he had occasional swelling. The Veteran reported flare-ups and described the flare-ups as pain when sitting, standing, and walking for periods greater than 10 minutes that occurred daily with a moderate to severe severity. He also reported functional loss and impairment and described it as an inability to sit, stand, or walk for periods greater than 10 minutes. The Veteran had pain on use of the feet and pain on manipulation. There was no indication of swelling on use. The Veteran did not have characteristic calluses. The Veteran used arch supports and did not have extreme tenderness of plantar surfaces on one or both feet, did not have decreased longitudinal arch height of one or both on weight bearing, did not have marked deformity, and did not have marked pronation. The weight-bearing line did not fall over or medial to the great toe. There was no lower extremity deformity other than pes planus, causing alteration of the weight-bearing line. There was no inward bowing of the achilles tendon and no marked inward displacement and severe spasm of the achilles tendon on manipulation of one or both feet. There was no metatarsalgia. The examiner indicated that the Veteran’s flat feet were of a mild severity. The examiner also noted that the foot condition did not chronically compromise weight-bearing. The examiner noted that the Veteran had pain on examination of both feet. Concerning contributing factors of disability, there was pain on weight-bearing, pain on non weight-bearing, interference with sitting, and interference with standing. The examiner noted that the contributing factors limited functional ability during flare-ups and that the Veteran was limited in running, jumping, prolonged ambulation, prolonged standing, and high impact activities. The examiner determined that there was no other functional loss during flare-ups or when the foot is used repeatedly over a period of time. The Veteran constantly used a cane for his disability. It was noted that the October 2020 x-ray showed mild degenerative change in bilateral feet. The examiner determined that the Veteran’s disability impacted his ability to perform any type of occupational task. The Veteran stated that he lost two to four weeks of time lost in the last twelve months. It was noted that he was limited in running, jumping, prolonged ambulation, prolonged standing, and high impact activities. The examiner explained that there was no objective evidence of pain on the right or left foot during passive or active range of motion and pain was noted in weight-bearing and non weight-bearing. Prior to October 2, 2020, the Board finds that a rating in excess of 10 percent is not warranted. The Board recognizes the Veteran’s reports that his flare-ups caused him not to move and that he had symptoms of tenderness, swelling and at times excruciating pain. Though the Veteran is competent to report that he has experienced swelling, tenderness and pain, the July 2014 VA examination report indicated that there was no swelling on use. Additionally, the July 2014 VA examination report shows evidence of marked pronation, but no evidence of pain on manipulation and use accentuation, or characteristic callosities to warrant a higher rating of 30 percent. The examiner explained that the Veteran experienced right foot pain on examination, but that he was still able to work as a mail carrier and be fully weight-bearing and that his left foot pain was purely subjective. In addition, the examiner noted the Veteran’s complaints of pain, but only noted tenderness on the 2nd metatarsal head on examination and found that the examination was otherwise within normal limits. Further, the Veteran did not utilize any orthotics, arch devices or built-up shoes to alleviate any symptoms of his disability. The Board has considered the Veteran’s statements, but attributes greater probative value to the objective examination findings and finds that the Veteran’s pes planus disability was not akin to a severe disability prior to October 2, 2020. Accordingly, the Board finds that the criteria for a higher 30 percent rating prior to October 2, 2020, have not been met. Finally, concerning a 50 percent rating prior to October 2, 2020, the Board notes the evidence of marked pronation, but, there is no evidence of extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasms of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Again, the Veteran has not been shown to use orthopedic shoes or appliances. The Board has considered the Veteran’s reported symptoms, but attributes greater probative value to the VA examination findings and concludes that the Veteran’s pes planus disability is not akin to a pronounced disability. From October 2, 2020, a rating in excess of 30 percent is not warranted. The October 2020 VA examination report does not reflect a pronounced disability and there is no evidence of marked pronation or extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. The Board recognizes that the Veteran reported that he experiences functional impairment and loss during flare-ups and repeated use, but the Board finds that such is not akin to a pronounced disability to warrant a higher 50 percent rating. Finally, there is no evidence of weak foot, claw foot, hallux valgus, hammer toe, malunion of tarsal or metatarsal bones. Thus, Diagnostic Codes 5277, 5278, 5280, 5281, 5282, and 5283 are not for application. The Board notes that the July 2014 VA examination report reflects an assessment of metatarsalgia without Morton’s neuroma, but the October 2020 VA examination report does not show a diagnosis or metatarsalgia and the VA treatment records also do not reflect such an assessment. However, under the facts of this case, the Board finds that a separate rating would not be warranted under Diagnostic Code 5279. Metatarsalgia without Morton’s neuroma is defined as “pain and tenderness in the metatarsal region.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1162 (31st ed. 2007). Pain in the feet is the basis for the Veteran’s assigned ratings under Diagnostic Code 5276 and, therefore, a separate rating under Diagnostic Code 5279 would result in impermissible pyramiding. Moreover, alternatively rating the Veteran’s disability under that code would not result in a higher rating. A preponderance of the evidence is against the claim and higher ratings are not warranted. Increased Rating - Apophysis, anterior inferior plate of L3-L5 and retrolisthesis of L5 on S1 Here, the Board notes that the rating decision on appeal noted that a 10 percent rating for apophysis, anterior inferior plate of L3-L5 was continued from November 11, 2001— the date that the Veteran was granted service connection. However, the Veteran filed a claim for an increased rating in March 2014. Accordingly, the Board may only consider the evidence of record dated one year prior to the date that VA received the Veteran’s claim for an increased rating, and no earlier. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion 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 or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state, that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher rating for that segment. The Board will now address the evidence pertaining to the Veteran’s service-connected apophysis, anterior inferior plate of L3-L5 and retrolisthesis of L5 on S1. VA treatment records show complaint of joint and back pain. They also reflect the Veteran’s use of acupuncture, a TENS unit, and physical therapy. The records also show findings of tenderness, overpressure pain and stiffness. A November 2016 VA treatment record reflects a complaint of lumbar pain worse in the morning and aggravating factors or prolonged positions and activities. He had a mildly antalgic gait and also had limited range of motion with pain on flexion. A February 2017 VA treatment record shows that the Veteran reported episodic flare-ups consistent with a chronic presentation. An August 2017 VA treatment record shows a complaint of low back pain with a severity of 7/10. A May 2017 VA treatment record also shows a mildly antalgic gait and that the Veteran had limited range of motion with pain on flexion. A July 2018 VA treatment record shows that there was no weakness or numbness in extremities. A February 2019 VA treatment record shows complaint of low back pain with a 10 out of 10 intensity, dull to sharp, with radiation to right leg and muscle spasm. Neurological examination was still within normal limits, but the spine was tender to palpation with restricted range of motion. A March 7, 2019, VA treatment record shows the Veteran’s reports of chronic back pain from moderate to severe and that he had radiculitis. On examination, he experienced bilateral paralumbar spasms and exhibited flexion to 60 degrees. A May 2019 VA treatment record reflects that the Veteran reported constant back pain at a severity of 5/10, but it can elevate to 10/10. It was noted that he had done formal physical therapy, acupuncture, massage, and medication management including Ibuprofen, Methocarbamol, and Gabapentin. He stated that he did not like the side effects of the medications and Ibuprofen was not strong enough to relieve the pain. He noted that he still worked out at the gym and did yoga, but no running. It was noted that he has some right radiculitis that just started. Another May 2019 VA treatment record shows complaints of back pain with an intensity of 5/10. He reported that his pain increased with all activities. Finally, a May 2019 VA treatment record noted flexion to 70 degrees. A July 2019 VA treatment record shows a report of daily back pain described as tightness and pressure with pain radiating down the right leg at times and to the sides at times. He noted that the pain in his back could also be sharp and pulsating at times. It was noted that the Veteran avoided much medication because he was concerned about side effects. He noted that Methocarbamol led to drowsiness but did not help with the tightness. A July 2019 VA treatment record noted that he tried to do physical therapy exercises at home, but had significant spasms in the lower back. He also reported that his sleep was horrible and that he woke up partly due to pain but also had sleep apnea. In July 2014, the Veteran was provided a VA examination. Though it is no evident that the examiner reviewed the claims file, the examination findings are relevant to rating the matter on appeal and the failure to review the claims file does not render the findings made on examination inadequate. Regarding range-of-motion testing, the examiner did not indicate whether passive range of motion testing or weight-bearing was tested, and the range-of-motion findings may not be used to deny the Veteran’s claim. The Veteran reported flare-ups described as difficulty walking. The examiner indicated that the Veteran had functional loss and impairment due to less movement than normal. There was tenderness to palpation over the posterior spine, L4, L5 region. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal an there was no muscle atrophy. Deep tendon reflexes were normal for the knees and absent for the ankles. Sensory examination was normal and the straight leg raising tests were normal. There was no radiculopathy. The Veteran did not use an assistive device. There was no impact on his ability to work. The examiner indicated that the Veteran’s gait was within normal limits. In February 2015, the Veteran stated that back pain was one of the top reasons people sought medical attention, but it was very difficult to treat. He cited a study indicating that massages can improve back pain for a certain percentage of people. He stated that he suffered from extreme low back pain and used every legal pain medication as well as being seen by numerous chiropractors. The Veteran stated that his only relief came from massage therapy. He stated that he had submitted documentation from Massage Envy showing that it had been his medication of choice. He stated that his condition had worsened over the years resulting in stiffness and tenderness in his lower back. He reported that his range of motion had become more limited and prolonged standing as well as sitting only aggravated the condition more. He stated that during severe flare-ups, massage therapy was the only remedy that temporarily relieved the pressure. In October 2016, the Veteran stated that his disability had been worsening and negatively affecting his quality of life. He stated that he had been experiencing numbness and tingling in his lower extremities and muscle spasms in his lower back. He reported that the symptoms made his ability to work extremely difficult. He reported that since some of the medications he takes causes drowsiness, he was unable to take them while at work which caused him to be in constant pain while working. The Veteran explained that the medications only provided him with temporary relief, so he had constant pain, numbness, tingling, and spasms. He stated that this had decreased his quality of life. He noted the prescribed medications and the possible side effects of each medication. In October 2020, the Veteran was provided a VA examination. The examiner reviewed the claims file. The Veteran reported symptoms of pain, weakness, and stiffness. He stated that he used Motrin and Flexeril. He also completed physical therapy and received an injection. He reported that his pain was 10/10 and that the back pain had gotten worse over the past 18 months. He was unable to sit, stand, or walk for periods greater than 10 minutes. The Veteran reported daily flare-ups described as pain when sitting, standing, and walking for periods greater than 10 minutes. The duration was hours and of a moderate-severe degree of severity. The Veteran also reported functional loss or impairment during periods of repeated use and described as an inability to sit, stand, or walk for periods greater than 10 minutes. On examination, the Veteran’s spine exhibited flexion to 40 degrees. The range of motion itself contributed to a functional loss because he was unable to sit, stand, or walk for periods greater than 10 minutes. The Veteran’s spine exhibited pain on forward flexion; left lateral flexion; extension; right lateral rotation; right lateral flexion; and left lateral rotation. There was pain on weight bearing. The examiner indicated that the Veteran had achy pain to palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive testing and there was no additional loss of function or range of motion after three repetitions. Concerning repeated use over time, pain caused functional loss and flexion would be limited to 30 degrees. Regarding flare-ups, pain caused functional loss and the examiner estimated that flexion would be limited to 30 degrees. The Veteran had guarding and muscle spasm resulting in abnormal gait or abnormal spinal contour. There were no additional factors contributing to disability. There was 4/5 muscle strength in ankle plantar flexion, ankle dorsiflexion, and great toe extension. There was 4/5 muscle strength in hip flexion; knee extension; ankle plantar flexion; ankle dorsiflexion; and great toe extension. There was no muscle atrophy. Reflex examinations showed absent deep tendon reflexes of the ankles, and hypoactive deep tendon reflexes of the knees. Sensory testing shows decreased sensation of all areas tested on the right and left sides. There was a positive straight leg raising test for the right. The examiner indicated moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right lower extremity. The examiner determined that there was involvement of the right sciatic nerve and that the right radiculopathy was of a moderate degree. There was no ankylosis of the spine. The Veteran constantly used a cane. The examiner determined that the Veteran’s spine impacted his ability to work, noting that the Veteran worked as a mail carrier and lost two to four weeks of work time in the last twelve months. It was noted that his spine limited bending; stooping; pushing; pulling; carrying; and lifting moderate objects. His radiculopathy caused difficulty with standing, sitting, and walking for periods greater than 10 minutes. Prior to March 7, 2019, a rating in excess of 10 percent is not warranted. The Board has considered all the medical evidence and lay evidence including the Veteran’s reports of flare-ups and severe chronic back pain in addition to his stiffness and tenderness. However, the objective evidence does not reflect forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, to warrant a higher rating under the rating criteria. Though the evidence demonstrates evidence of muscle spasms, restricted limitation of motion, pain, and an abnormal gait, it does not show that the Veteran’s abnormal gait was due to guarding or muscle spasm. There is also no evidence of ankylosis. Even considering the reports of functional impairment and loss during periods of flare-ups and repeated use, the evidence simply does not reflect that the Veteran’s flexion would be limited to 60 degrees or less or the combined range of motion thoracolumbar spine would be limited to 120 degrees or less. Accordingly, a higher rating is not warranted prior to March 7, 2019. However, the Board finds that a 20 percent rating, and no higher, is warranted from March 7, 2019, to October 1, 2020. In this respect, a March 7, 2019, VA treatment record shows that the Veteran’s thoracolumbar spine flexion was limited to 60 degrees. Though the record is sparse, the Board will resolve doubt in the Veteran’s favor and finds that a 20 percent rating is warranted from March 7, 2019, to October 1, 2020. The Board has considered the Veteran’s reports of back pain ranging from as well as his reports of flare-ups, but the evidence of record during this time period is simply does not reflects that his functional impairment and loss during a period of flare-up or repeated use would be akin to flexion limited to 30 degrees or less. Accordingly, a rating in excess of 20 percent is not warranted from March 7, 2019, to October 1, 2020. From October 2, 2020, a rating in excess of 40 percent is not warranted. The October 2020 VA examination report does not reflect any assessment of ankylosis. Even considering additional functional impairment and loss and the Veteran’s statements describing such limitations including an inability to walk, stand, or sit for periods longer than 10 minutes, the evidence does not reflect that the Veteran’s limitation would be akin to ankylosis. The examiner estimated that the Veteran would still retain flexion to 30 degrees during flare-ups and repeated use over time. Accordingly, a rating in excess of 40 percent is not warranted. A preponderance of the evidence is against the claim, aside from the staged 20 percent rating granted herein, and the claim is denied. Effective Date and Initial Rating – Radiculopathy Criteria for rating diseases of peripheral nerves are based on paralysis, neuritis, or neuralgia. Neuritis of a peripheral nerve, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain at times excruciating is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia of a peripheral nerve, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent rating is warranted for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Veteran’s radiculopathy of the right lower extremity is rated as 20 percent disabling from October 2, 2020, the date of the VA examination. The Board finds that the Veteran instead meets the criteria for a 20 percent rating from March 7, 2019. At that time, the Veteran reported pain radiating down his right leg, had a positive straight leg raising test, and was assessed with radiculitis. Though the evidence is sparse, given the consistent complaints since that time, to his examination in October 2020, the Board finds that an effective date of March 7, 2019, and no earlier, is warranted for radiculopathy of the right lower extremity. Concerning the time period prior to March 7, 2019, the Board notes the Veteran’s October 2016 statement wherein he complained that he had neuropathies, his legs felt weak, and that he had numbness and tingling. However, in November 2016, the Veteran denied radiating pain, numbness, or weakness in the lower extremities. In July 2017, the Veteran was negative for radicular pain. The Board attributes greater probative value to the objective medical records rather than the Veteran’s 2016 statement. The Board finds that the evidence of record does not support an effective date earlier than March 7, 2019, for radiculopathy of the right lower extremity. In addition, a rating in excess of 20 percent for radiculopathy of the right lower extremity is not warranted. The July 2019 VA treatment record shows radiating pain down the right leg and that the pain was sharp. The October 2020 VA examination report reflects the first diagnosis of radiculopathy in the record and an assessment of radiculopathy of the right side to a moderate degree. The Veteran also reported moderate symptoms. Further, while there were absent reflexes of the ankle and decreased sensation, there was only a reduction of muscle strength to 4/5 in certain areas tested and no muscle atrophy. Thus, the evidence does not reflect moderately severe incomplete paralysis of the right lower extremity and a higher rating is not warranted. Regarding any neurological disability of the left lower extremity, again, there is no diagnosis attributed to the left leg and a separate rating is not warranted. The Veteran’s statements of radiating pain down the legs, alone, are not considered sufficient to warrant a separate rating for radiculopathy. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board attributes greater probative value to the VA examination reports that examined the Veteran and do not reflect any neurological disability related to the left lower extremity. The Board notes that one part of the October 2020 VA examination report indicated bilateral lower extremity radiculopathy, however, the examination findings only pertain to right lower extremity radiculopathy and not left lower extremity radiculopathy. In the October 2020 examination findings, the examiner specifically determined that there was no left lower extremity radiculopathy. Accordingly, a separate rating for left lower extremity radiculopathy is not warranted. Aside from the assignment of an earlier effective date for right lower extremity radiculopathy, a preponderance of the evidence is against the claim and it is denied. Extraschedular Consideration The Board recognizes that neither the Veteran nor his attorney has raised entitlement to an extraschedular rating related to any of the disabilities on appeal. However, the Board will consider referral for extraschedular consideration given the Veteran’s statements. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). Though an extraschedular rating may not be considered based on the collective impact of all disabilities taken together, see Thurlow v. Wilkie, 30 Vet. App. 231 (2018), given the Veteran’s general contentions that apply to all the service-connected disabilities on appeal and for ease of discussion, the Board will address the contentions as it relates to each of the Veteran’s service-connected disabilities. As will be discussed below, the Board finds that extraschedular consideration is not warranted for any of the service-connected disabilities on appeal. In the VA treatment records, the Veteran indicated that his pain, in general, limited his sleep. He also reported that he had sleep apnea and the VA medical treatment records confirm such a diagnosis. The Veteran also has reported in the VA treatment records and his lay statements that he did not like the side effects of certain prescribed pain medications specifically noting drowsiness. A July 2019 VA treatment record shows that the Veteran was not on any medications because he was concerned about side effects. It was noted that he was prescribed Methocarbamol which led to drowsiness but did not relieve tightness. The Veteran has also listed potential side effects of medications, but did not indicate that he experienced any of them. While the Veteran explained that he experienced constant pain at work as a result of not taking pain medications, the Board finds that the Veteran’s pain and functional limitations are considered in the applicable rating criteria. Concerning his sleep disorder – sleep apnea, that may be addressed under another diagnostic code and does not support a referral for extraschedular consideration. With respect to the Veteran’s complaint of pain causing interference with sleep and drowsiness as a result of using pain medications, the evidence does not reflect that such symptoms are exceptional or unusual. The Veteran has not described marked interference with work due to sleep impairment or frequent hospitalization. With respect to drowsiness, he simply stated that he was unable to take pain medications due to that side effect and any limited experience of drowsiness at work does not warrant referral for extraschedular consideration. Given the evidence of record, referral for consideration for an extraschedular rating is not warranted for any of the Veteran’s service-connected disabilities on appeal. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.