Citation Nr: 21061450 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 09-28 294 DATE: October 4, 2021 ORDER Entitlement to a rating of 20 percent, and no higher, is granted from November 30, 2016, for degenerative disc disease, lumbosacral spine. Entitlement to ratings in excess of 10 percent prior to November 30, 2016, and 20 percent from that date for degenerative disc disease, lumbosacral spine, is denied. Entitlement to a rating of 20 percent, and no higher, is granted from November 16, 2011, to December 14, 2011, for residuals of injury right medial malleolus with soft tissue calcification and traumatic arthritis. Entitlement to ratings in excess of 10 percent prior to November 16, 2011; 20 percent from November 16, 2011, to December 14, 2011; and 10 percent from December 15, 2011, to January 21, 2015, for residuals of injury right medial malleolus with soft tissue calcification and traumatic arthritis is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to October 3, 2017, is denied. FINDINGS OF FACT 1. It was factually ascertainable as of November 30, 2016, and no earlier, that the Veteran's degenerative disc disease, lumbosacral spine, was manifested by forward flexion limited to 60 degrees. 2. From November 30, 2016, the Veteran's degenerative disc disease, lumbosacral spine, was not manifested by forward flexion of the thoracolumbar spine of 30 degrees or less or by favorable or unfavorable ankylosis of the thoracolumbar spine. 3. From November 16, 2011, to December 14, 2011, the Veteran's residuals of injury right medial malleolus with soft tissue calcification and traumatic arthritis were manifested by marked limited motion of the ankle. 4. Prior to November 16, 2011, and from December 15, 2011, to January 21, 2015, the Veteran's residuals of injury right medial malleolus with soft tissue calcification and traumatic arthritis were manifested by no worse than moderate limited motion of the ankle. 5. Prior to October 3, 2017, the Veteran was not unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 20 percent, and no higher, for degenerative disc disease, lumbosacral spine, from November 30, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to ratings in excess of 10 percent prior to November 30, 2016, and 20 percent from that date for degenerative disc disease, lumbosacral spine, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.59, 4.71a, Diagnostic Code 5237. 3. The criteria for entitlement to a rating of 20 percent, and no higher, for residuals of injury right medial malleolus with soft tissue calcification and traumatic arthritis from November 16, 2011, to December 14, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.59, 4.71a, Diagnostic Code 5271. 4. The criteria for entitlement to ratings in excess of 10 percent prior to November 16, 2011; 20 percent from November 16, 2011, to December 14, 2011; and 10 percent from December 15, 2011, to January 21, 2015, for residuals of injury right medial malleolus with soft tissue calcification and traumatic arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.59, 4.71a, Diagnostic Code 5271. 5. The criteria for entitlement to a TDIU prior to October 3, 2017, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1984 to February 1987. In August 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge as to the issue of entitlement to a higher rating for the service-connected right ankle disability. A transcript of the hearing is associated with the record. In January 2016, the Board issued a decision that, in relevant part, granted a rating of 20 percent from January 22, 2015, for the service-connected right ankle disability; denied entitlement to a rating in excess of 10 percent prior to January 22, 2015, for the service-connected right ankle disability; and denied entitlement to TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2017, the Court vacated the January 2016 Board decision to the extent that it denied a rating in excess of 10 percent prior to January 22, 2015, for the service-connected right ankle disability and TDIU, and remanded those issues for further consideration consistent with a January 2017 Joint Motion for Partial Remand (JMPR) filed by counsel for the Veteran and the VA Secretary. The JMPR indicates that the Veteran abandoned the issue of entitlement to a rating in excess of 20 percent from January 22, 2015, for the service-connected right ankle disability. Therefore, that issue is no longer on appeal. The Board remanded the issues of entitlement to higher ratings for the service-connected right ankle disability and entitlement to a TDIU in January 2011, April 2013, April 2017, and April 2021. The Board also remanded the issue of entitlement to higher ratings for the service-connected lumbosacral spine disability in April 2021. Regarding the claims for higher ratings for the service-connected right ankle disability and entitlement to a TDIU, the remands directed the agency of original jurisdiction (AOJ) to make appropriate efforts to obtain the Veteran's private treatment records, obtain the Veteran's VA treatment records, obtain the Veteran's Social Security Administration records, provide the Veteran VA examinations, and obtain addendum opinion as to September 2008, February 2011, November 2011 VA examinations. Regarding the claim for higher ratings for the service connection lumbosacral spine disability, the April 2021 remand directed the AOJ to obtain an addendum opinion as to January 2017 and November 2017 VA examinations. The Board has reviewed the record and finds that the actions requested in the prior Board remands have been substantially completed. The record contains the Veteran's private treatment records that have been adequately identified and authorized for release, VA treatment records, and Social Security Administration records. The Veteran has also been provided adequate VA examinations as to this service-connected right ankle disability and lumbosacral spine disability. Additionally, addendum opinions as to the September 2008, February 2011, November 2011, January 2017, and November 2017 VA examinations have been obtain. Those addendum opinions adequately provide the information requested in the remands. Accordingly, the Board finds that VA at least substantially complied with the prior Board remands in this case. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). A June 2020 rating decision granted entitlement to a TDIU from October 3, 2017. The issue of entitlement to a TDIU during the relevant rating period for the claim for an increased rating for the service-connected right ankle disability prior to October 3, 2017, remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). On a VA Form 21-0958, Notice of Disagreement, received in March 2018, the Veteran argued that his VA examinations were inadequate due to misdiagnoses related to the musculoskeletal and peripheral nervous systems. He did not specify how the examiners erred in their diagnoses, nor did he allege any other specific inadequacies in the conduct or recording of the VA examinations. The Board has reviewed the VA examinations of record. The examination reports reflect that the examiners performed objective testing to measure the Veteran's functional loss due to his service-connected disabilities, considered the Veteran's reported symptomatology, and provided the medical information necessary to address the rating criteria in this case. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In view of the other medical evidence of record, the Board finds no error in the examiners' diagnoses or in any of the other information included in the examination reports. Therefore, the Board finds the examinations to be adequate for decision-making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In a May 2020 brief, the Veteran's representative asked that the Veteran be provided another VA examination as to his service-connected lumbosacral spine disability "as the one of record is too old to adequately evaluate the disability." Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. 38 C.F.R. § 3.327(a). Mere passage of time is not a basis for requiring a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). In this case, the record does not show that there has been a material change in the Veteran's disability since the most recent VA examination. Therefore, the Board finds that the most recent examination remains adequate to evaluate the Veteran's service-connected lumbosacral spine disability despite having been conducted more than two years ago. Finally, in an August 2021 post-remand brief, the Veteran's representative argues that the addendum opinions obtained in June 2021 are not adequate for decision-making purposes because the contract examiner was identified as specializing in obstetrics and gynecology (OBGYN) "without any identified competence or expertise in the relevant specialty of Orthopedic Medicine." He asserts, "Absence of competence renders his assessment no more probative than the appellant's lay assertions that there is worsening of his condition prior to January 22, 2015." Once the competency of a VA examiner has been challenged by the appellant, VA must satisfy its burden of persuasion as to the examiner's qualifications. Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019). The crux of the Veteran's challenge to the June 2021 VA examiner's competency is that the examiner is not a specialist in orthopedics. However, it is not necessary that VA examinations be conducted by a specialist in the particular field of the Veteran's claimed disability. Rather, VA satisfies its duty to assist the Veteran when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor, nurse practitioner, or physician's assistant. Cox v. Nicholson, 20 Vet. App. 563 (2007). In this case, the June 2021 VA examiner indicated that he is a medical doctor who specializes in general practice and in OBGYN. He was asked to provide opinions as to any additional functional loss the Veteran may have experienced during flare-ups in his service-connected disabilities. There is no indication that a specialist is needed for such an opinion. Moreover, there is no indication that a medical doctor with a listed specialization of general practice could not provide an opinion on such a general medical question regarding the functioning of the musculoskeletal system. The Board therefore concludes that the fact that the examiner is not a specialist in orthopedics does not, alone, make him unqualified to provide the opinion requested. It certainly does not render his opinion no more probative than the Veteran's lay witness opinions. As such, the Board finds the June 2021 addendum opinions were rendered by a competent medical source and that the opinions are adequate for decision-making purposes. Neither the Veteran nor his representative has raised any other issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 1. Entitlement to ratings in excess of 10 percent prior to October 3, 2017, and in excess of 20 percent from that date for degenerative disc disease, lumbosacral spine The Veteran seeks an increased rating for degenerative disc disease, lumbosacral spine. The applicable rating period is from October 3, 2016, one year prior to receipt of the claim, through the present. For a higher rating to be awarded during the one-year period prior to the October 3, 2017 claim, it must be factually ascertainable that an increase in disability occurred during that period such that the higher rating may be awarded. Otherwise, the earliest a higher rating may be awarded is the date of the claim. See 38 C.F.R. § 3.400(o)(2). The Veteran's degenerative disc disease, lumbosacral spine, is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), a 10 percent rating is warranted 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 warranted 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Board finds that the record established that it was factually ascertainable as of November 30, 2016, and no earlier that the criteria for a 20 percent rating were met, but that the preponderance of the evidence is otherwise against higher ratings for degenerative disc disease, lumbosacral spine. Specifically, the VA treatment records show that on November 30, 2016, the Veteran had lumbar spine flexion to 60 degrees at a chiropractic consultation. Such findings warrant a 20 percent rating under the General Formula and establish that it was factually ascertainable as of that date that a 20 percent rating was warranted. There is no evidence of record showing that the criteria for a rating in excess of 10 percent or higher were met during the period from October 3, 2016, to November 29, 2016. There is also no evidence of record showing that the criteria for a rating in excess of 20 percent were met during the period from November 30, 2016, to October 2, 2017. A January 2017 VA examination shows that the Veteran had lumbar spine forward flexion to 70 degrees on initial testing and no additional loss of motion on repetitive-use testing. The Veteran did not have ankylosis of the thoracolumbar spine. The June 2021 VA examiner opined that, at the time of the January 2017 VA examination, the Veteran would have had up to a 5 degree loss of forward flexion with repetitive use over time and up to an additional 10 degrees loss of forward flexion during flare-ups. Thus, at worst, which would have been during a flare-up, the Veteran would have had 60 degrees of lumbar spine forward flexion. Therefore, it was not factually ascertainable that such higher ratings were warranted. As such, the Board concludes that, in relation to the one-year period prior to the claim, a 20 percent rating was warranted from November 30, 2016, but that ratings higher than those previously awarded and those awarded herein are not warranted for the Veteran's degenerative disc disease, lumbosacral spine. In regard to the period beginning October 3, 2017, at the November 2017 VA examination, the Veteran had lumbar spine forward flexion to 50 degrees on initial testing and no additional loss of motion on repetitive-use testing. The Veteran did not have ankylosis of the thoracolumbar spine. The June 2021 VA examiner opined that, at the time of the November 2017 VA examiner, the Veteran would have had up to a 5 degree loss of forward flexion with repetitive use over time and up to an additional 10 degrees of forward flexion during flare-ups. Thus, at worst, which would have been during a flare-up, the Veteran would have had 40 degrees of lumbar spine forward flexion at the time of the November 2017 VA examination. At a May 2019 VA examination, the Veteran denied flare-ups in his lumbosacral spine disability. On examination, he had lumbar spine forward flexion to 90 degrees and no additional loss of motion on repetitive-use testing. The Veteran did not have ankylosis of the thoracolumbar spine. Regarding passive motion and non-weightbearing motion, the June 2021 VA examiner explained that passive motion of the lumbar spine is not possible and is of no clinical value. In addition, individuals with back conditions cannot relax adequately and any voluntary movement, by definition, is weighted movement. The findings at the November 2017 and May 2019 are consistent with a rating no greater than 20 percent under the General Formula. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating VDS Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the right and left lower extremities and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. In the August 2021 post-remand brief, the representative states, "The Veteran requests 'the maximum benefit allowed by law and regulation,' including, but not limited to, an extraschedular rating based on the exceptional and unusual symptoms and severity of his service-connected disability." Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element of Thun, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The record shows that he has complaints and findings of pain and limited motion of the lumbosacral spine. For all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Because the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran's disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. In summary, the Board finds that the criteria for entitlement to a rating of 20 percent, and no higher, have been met from November 30, 2016, and no earlier for degenerative disc disease, lumbosacral spine. However, the criteria for entitlement to ratings in excess of 10 percent prior to November 30, 2016, and in excess of 20 percent from that date for degenerative disc disease, lumbosacral spine, have not been met. To the extent that the Veteran seeks ratings higher than those assigned previously or in this decision, the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 10 percent prior to January 22, 2015, for residuals of injury right medial malleolus with soft tissue calcification and traumatic arthritis The Veteran seeks an increased rating for residuals of injury right medial malleolus with soft tissue calcification and traumatic arthritis. The applicable rating period is from July 15, 2007, one year prior to receipt of the claim, through January 21, 2015. See 38 C.F.R. § 3.400(o)(2). The Veteran's service-connected right ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.). Because this regulatory change became effective only after the relevant rating, the new criteria do not strictly apply in this case. Nevertheless, in proposing the amendment to Diagnostic Code 5271, VA noted that, "VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel." 82 Fed. Reg. 35,723 (August 1, 2017). Accordingly, in making changes to Diagnostic Code 5271, VA was codifying a previous policy to ensure more uniformity among its rating personnel. As such, even prior to February 7, 2021, marked limited motion of the ankle would mean less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. Such measurements are consistent with the dictionary definitions of "moderate" and "marked". According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. In view of the foregoing, the Board will consider ankle motion limitation to be moderate if it is limited to less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. The Board will consider ankle motion limitation to be marked if it is limited to less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. The Board finds that the criteria for a 20 percent rating for the service-connected right ankle disability were met from November 16, 2011, to December 14, 2011, but that the preponderance of the evidence is otherwise against a rating in excess of 10 percent for the service-connected right ankle disability prior to January 22, 2015. The medical treatment records show that the Veteran sustained a right ankle inversion sprain when he fell down some steps in late November 2011. On December 15, 2011, he had right ankle dorsiflexion to 10 degrees and plantar flexion to 30 degrees on active motion and neutral right ankle dorsiflexion and right ankle plantar flexion to 25 degrees on active motion. By early January 2012, the Veteran was "doing better", with right ankle range of motion only "slightly limited" with pain at the end range and an inability to stand on unilateral legs. In August 2012, the Veteran reported soreness in the right ankle with use of an ankle brace and pain of 8 out of 10 in the right ankle. In June and July 2014, his joints had "adequate" range of motion. At a September 2008 VA examination, the Veteran had right ankle dorsiflexion to 10 degrees on active motion and 20 degrees on passive motion, and plantar flexion to 30 degrees on active motion and 45 degrees on passive motion with no additional loss of motion on repetitive use. He denied flare-ups in his right ankle symptoms at that examination. At a July 2010 consultative examination provided in relation to the Veteran's application for Social Security Administration disability benefits, the Veteran had right ankle dorsiflexion to 10 degrees and plantar flexion to 20 degrees on both active motion and passive motion. At a February 2011 VA examination, the Veteran denied flare-ups in his right ankle disability. On examination, the Veteran had right ankle dorsiflexion to 15 degrees and plantar flexion to 30 degrees without additional loss of motion following repetitive-use testing. The Veteran did not have ankylosis of the right ankle. At a November 2011 VA examination, the Veteran had right ankle dorsiflexion to 5 degrees and plantar flexion to 35 degrees without additional loss of motion following repetitive-use testing. He did not have ankylosis of the right ankle. An April 2020 VA examiner indicated that the Veteran's passive range-of-motion measurements would be equal to or better than his active range-of-motion measurements at the September 2008, February 2011, and November 2011 VA examinations. The examiner also stated that the range-of-motion testing at the VA examinations were performed in non-weight bearing because it is physically impossible to measure range of motion of the ankle while weight-bearing given the proper way to measure the range-of-motion angles. The June 2021 VA examiner opined that the Veteran would have had no additional functional loss on repetitive use over time at the 2011 VA examinations, but would have had an additional loss of up to 5 degrees in both dorsiflexion and plantar flexion at that time. The Veteran underwent a private examination in May 2014. At that examination, the Veteran had swelling of the lateral aspect of the right ankle, as well as pain on palpation and motion of the ankle. Radiographs taken at the examination showed marked joint narrowing of the right talar dome with distal bony lipping/spurs about the dorsal neck of the talus. The examiner noted that the Veteran's calcaneal inclination on the right side was 17 degrees where normal range is from 28 to 32 degrees. The examiner concluded, "I feel that [the Veteran] is entitled to benefits greater than what he is receiving. I have come across many patients with similar history that have received total disability." The Board concludes that the evidence dating prior to the November 2011 VA examination does not show that a rating in excess of 10 percent was warranted for the service-connected right ankle disability during that period. The Veteran's right ankle range of motion was most limited during that period at the July 2010 consultative examination, where he had right ankle dorsiflexion to 10 degrees and plantar flexion to 20 degrees. Even affording the Veteran the benefit of the doubt and applying the June 2021 VA examiner's estimates as to additional functional loss during flare-ups to those measurements, the Veteran still had dorsiflexion of 5 degrees or greater and plantar flexion of 10 degrees or greater at that time. Accordingly, the Board concludes that the criteria for a rating in excess of 10 percent for the service-connected right ankle disability were not met prior to November 16, 2011, the date of the November 2011 VA examination. The Board also finds that the criteria for a rating in excess of 10 percent were not met during the period beginning December 15, 2011. On that date, the Veteran had right ankle range of motion that was limited at worst to 10 degrees of dorsiflexion and 25 degrees of plantar flexion. Even affording the Veteran the benefit of the doubt and applying the June 2021 VA examiner's estimates as to additional functional loss during flare-ups to those measurements, the Veteran still had dorsiflexion of 5 degrees or greater and plantar flexion of 10 degrees or greater at that time. Subsequent range-of-motion measurements during the relevant period beginning December 15, 2011, were even less limited. However, the Board finds that, affording the Veteran the benefit of the doubt, the criteria for a rating of 20 percent were met during the period from November 16, 2011, the date of the November 2011 VA examination, to December 14, 2011. When the June 2021 VA examiner's estimates as to additional functional loss during flare-ups are applied to the range-of-motion measurements taken at the November 2011 examination, the Veteran had right ankle dorsiflexion to 0 degrees and plantar flexion to 30 degrees. Zero degrees of dorsiflexion is less than 5 degrees and is therefore considered a "marked" limitation. As such, a rating of 20 percent was warranted from November 16, 2011, to December 14, 2011. The Board acknowledges that the effective date for an increased rating depends on when a change in disability level can be ascertained and should not be assigned mechanically as of the date of an examination. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015); see also 38 C.F.R. § 3.400(o). However, in this case the record does not show that the criteria for a rating of 20 percent were met during the relevant period prior to the November 2011 VA examination or during the period beginning on December 15, 2011, and prior to the date of the Veteran's January 22, 2015 VA examination. Therefore, a change in the disability level of the service-connected right ankle disability cannot be ascertained at a date prior to the November 16, 2011 VA examination or prior to January 22, 2015 VA examination, and the 20 percent ratings assigned as of those dates cannot be assigned at an earlier date. In the August 2021 post-remand brief, the representative states, "The Veteran requests 'the maximum benefit allowed by law and regulation,' including, but not limited to, an extraschedular rating based on the exceptional and unusual symptoms and severity of his service-connected disability." In regard to the first element of Thun, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The record shows that he has complained of right ankle pain, limited motion, giving way, instability, stiffness, tenderness, and weakness. For all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. It also considers pain, instability, and malaligned joints. 38 C.F.R. § 4.59. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Because the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran's disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. The record does not show that the Veteran has ankylosis of the right ankle or malunion of the os calcis or astragalus due to the service-connected right ankle disability, or that the Veteran has undergone an astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, and 5274. In summary, the Board finds that the criteria for entitlement to a rating of 20 percent, and no higher, were met from November 16, 2011, to December 14, 2011, for residuals of injury right medial malleolus with soft tissue calcification and traumatic arthritis. However, the criteria for entitlement to ratings in excess of 10 percent prior to November 16, 2011, and from December 15, 2011, to January 21, 2015, have not been met. To the extent that the Veteran seeks ratings higher than those assigned previously or in this decision, the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. TDIU 3. Entitlement to a TDIU prior to October 3, 2017 The Veteran seeks entitlement to a TDIU prior to October 3, 2017. The applicable rating period is from July 15, 2007, one year prior to receipt of the claim for a higher rating for the service-connected right ankle disability, through October 2, 2017. See 38 C.F.R. § 3.400(o)(2). A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During the relevant period, the Veteran had the following service-connected disabilities: residuals of right medial malleolus with soft tissue calcification and traumatic arthritis, rated as noncompensable prior to July 15, 2008, 10 percent from July 15, 2008, 20 percent from November 16, 2011, 10 percent from December 15, 2011, and 20 percent from January 22, 2015; degenerative disc disease, lumbosacral spine, rated at 10 percent from November 4, 2016, and 20 percent from November 30, 2016; status-post right bunion repair, rated at 10 percent from July 15, 2008; left knee join osteoarthritis, rated at 10 percent from November 4, 2016; right knee joint osteoarthritis, rated at 10 percent from November 4, 2016; and scar, status-post right bunionectomy, rated as noncompensable from November 4, 2016. He had a combined rating of noncompensable prior to July 15, 2008; 20 percent from July 15, 2008; 30 percent from November 16, 2011; 20 percent from December 15, 2011; 30 percent from January 22, 2015; and 50 percent from November 4, 2016. Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). The Veteran's claim for entitlement to a TDIU was referred to the Director, Compensation Service, in July 2020 for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). In August 2020, the Director, Compensation Service, issued a memorandum finding that the evidence does not establish that the Veteran was precluded from employment due to his service-connected prior to October 3, 2017. The Board may now consider the issue of entitlement to a TDIU prior to October 3, 2017, because it has already been considered by the Director, Compensation Service, in the first instance. For the reasons that follow, the Board finds that a TDIU prior to October 3, 2017, is not warranted. On a VA Form 21-8940 received in March 2011, the Veteran reported that he has a high school education. He also reported that he was most recently employed as a cook from 2006 to 2008. Regarding physical limitations caused by the service-connected disabilities, the Veteran underwent surgery to treat his service-connected right bunion in May 2008. Following that surgery, the Veteran's physician stated that the Veteran was "unable to perform work of any kind", but also indicated that the Veteran would be able to lift and carry up to 10 pounds, sit for 8 hours, stand for 1 to 2 hours, and walk for 1 to 2 hours, but never bend or stoop during a work day. In June 2008, a different physician stated that the Veteran could return to work without restrictions pertaining to his toes. In November 2008, another physician wrote that the Veteran had been released from any work restrictions relating to May 2008 and August 2008 foot surgeries as of September 22, 2008. In December 2008, the Veteran wrote that he was having problems standing for over 4 hours due pain in his back, legs, and thighs. In July 2009, he wrote that he could not walk more than 300 feet or stand over 1 and one-half hours. At the August 2010 Board hearing, he testified that he cannot stand over 15 minutes or walk more than 20 or 30 yards without resting as a result of both his service-connected right ankle and foot disabilities and his nonservice-connected residuals of cardiovascular accident. The February 2011 VA examiner opined that the Veteran's service-connected right bunion does not have significant occupational effects, but that the service-connected right ankle disability causes decreased mobility. The November 2011 VA examiner opined that the Veteran's service-connected right ankle and right foot disabilities cause difficulty with prolonged standing. In January 2012, another VA examiner opined that the Veteran would not be able to perform physical employment, including that involving standing for long periods of time, due to his service-connected right ankle and right foot disabilities, but that he would be able to perform sedentary employment. The May 2014 private examiner opined that the Veteran "cannot tolerate any employment that would require excess standing, lifting, walking, stooping, lifting heavy objects, particularly in his trad of being a cook." The January 2015 VA examiner stated that the Veteran's service-connected right ankle disability causes pain and swelling with prolonged walking and standing. A January 2017 VA examiner found that, due to his service-connected lumbosacral spine, bilateral knee, and right ankle disabilities, the Veteran is limited to sedentary work performed for periods of about 20 to 30 minutes at a time before having to get up and walk around; cannot run any distance; cannot walk more than about one-quarter mile before stopping; has difficulty going up and down stairs; and has difficulty driving more than 1 hour at a time. The Board affords great weight to the VA examiners' opinions as to the functional limitations caused by the Veteran's service-connected disabilities and to the treating physician's May 2008 statements as to the Veteran's functional limitations. The Veteran has competently and credibly reported that his service-connected right ankle, right foot, bilateral knee, and lumbosacral spine disabilities cause pain and other symptoms limit his use of his lower extremities for walking and other physical activities. The VA examiners' opinions and the physician's statement are consistent with the Veteran's competent and credible reports. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). The Veteran has reported difficulties with physical activities, particularly standing and walking, due to his service-connected disabilities. The VA examiners' opinions and the May 2008 statement adequately consider the Veteran's reports. The Board does not afford probative weight to the opinions of record to the effect that the Veteran cannot perform any work due to his service-connected disabilities. Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). Thus, the medical opinions of record stating that the Veteran cannot work due to his service-connected disabilities are not probative in determining whether he is entitled to a TDIU prior to October 3, 2017. Regarding the Director of Compensation Services' August 2020 memorandum, because such a decision on a specific case as to entitlement to an extraschedular TDIU rating is "in essence the de facto [AOJ] decision", it does not constitute evidence, i.e., in the form of opinion evidence. Wages v. McDonald, 27 Vet. App. 233 (2015). As such, the decision is not entitled to probative value to be weighed against other evidence of record. Therefore, the Board does not attribute any particular evidentiary weight to the Director's August 2020 memorandum. Based on the probative findings and opinions of the VA examiners and the treating physician's May 2008 statement, the Board finds that, due to his service-connected right ankle, right foot, bilateral knee, and lumbosacral spine disabilities, the Veteran was able to perform sedentary work not involving squatting, kneeling, or frequent climbing of stairs and that would allow him to change positions at least every 30 minutes. In that regard, the Board notes that the term "sedentary" means "doing or requiring much sitting" or "not physically active." Merriam-Webster's Collegiate Dictionary 1123 (11th ed. 2012). It also means "1. Sitting habitually; of inactive habits. 2. Pertaining to a sitting posture." Dorland's Illustrated Medical Dictionary 1687 (32nd ed. 2012). Therefore, sedentary work is that which is performed mostly in the sitting position, involves limited lifting and carrying, and involves only occasional standing and/or walking. The evidence does not show that the Veteran's ability to work was further limited due to his service-connected scars. With such an occupational profile, the Veteran would be able to perform work such as clerical work, inspection, and assembly, which are sedentary and require minimal standing and walking and would allow for brief periods every 30 minutes during which the Veteran would be able to change position. The Board has considered the Veteran's level of education. See 38 C.F.R. § 4.16. The Veteran has a high school education. Such a level of education is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as clerical, inspection, or assembly work. The Board has also considered the Veteran's work history. He has not worked for many years. However, the Board finds that the Veteran's lack of work in the years prior to and during the relevant period would not prevent him from transitioning to an unskilled or semi-skilled occupation, or from securing or following an unskilled or semi-skilled occupation, which do not require special training and can be learned on the job site. Finally, the Board acknowledges that the Veteran was granted Social Security Administration disability benefits effective in February 2010. VA is not bound by the findings of disability and/or unemployability made by other agencies, including the Social Security Administration. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating that the Social Security Administration's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). Moreover, the Veteran's Social Security Administration records indicate that he was found disabled due primarily to the late effects of cerebrovascular disease, which is not service connected and is not for consideration in determining entitlement to a TDIU prior to October 3, 2017. The Board therefore affords no weight to the Social Security Administration's determination that the Veteran is disabled and unable to work. The Board does not doubt the Veteran's reports that his service-connected disabilities limited his functional abilities during the relevant period. In addition, the Board acknowledges that the Veteran's nonservice-connected disabilities may have further limited his functioning during the relevant period such that he was unable to secure or follow a substantially gainful occupation. However, his nonservice-connected disabilities are not for consideration in determining whether he was entitled to a TDIU prior to October 3, 2017. See 38 C.F.R. § 4.16. When only his service-connected disabilities are considered, the Veteran is limited to sedentary work that does not involve squatting, kneeling, or frequent climbing of stairs and that would allow him to change positions every 30 minutes. With such remaining functional capacity, the Veteran would be able to perform the duties required for clerical, inspection, or assembly work. As such, the evidence of record does not show that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities during the relevant period. The preponderance of the evidence is against a finding of entitlement to a TDIU prior to October 3, 2017, the doctrine of reasonable doubt is not for application, and the appeal must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.