Citation Nr: 21062109 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-17 158A DATE: October 6, 2021 ORDER 1. Entitlement to a 50 percent rating is granted for the Veteran's bilateral pes planus from [the earlier effective date of] August 21, 2018, subject to the regulations governing payment of monetary awards. 2. Entitlement to an earlier effective date of August 21, 2018, but not earlier, is granted for the Veteran's award of special monthly compensation (SMC) at the housebound rate. 3. Entitlement to a rating in excess of 70 percent for the Veteran's posttraumatic stress disorder (PTSD) prior to June 22, 2012 is denied. 4. Entitlement to a rating in excess of 10 percent for residuals of a left middle finger injury is denied. FINDINGS OF FACT 1. From [the earlier effective date of] August 21, 2018, the Veteran's bilateral pes planus is reasonably shown to have been best characterized as pronounced; impairment not encompassed by the schedular criteria is not shown or alleged; loss of use of either foot is not shown. 2. Based on the grant of an earlier effective date for a 50 percent rating for pes planus (by this decision) from August 21, 2018, the Veteran is in receipt of a TDIU rating (based solely on PTSD) and had additional service-connected disabilities (pes planus and residuals of a left middle finger injury) independently rated at 60 percent or more. 3. At no time from June 27, 2011 to June 22, 2012, is the Veteran's PTSD reasonably shown to have been productive of total occupational and total social impairment. 4. The Veteran's left middle finger disability has been awarded a 10 percent rating by analogy under Diagnostic Code (Code) 5226-7804 based on pain and is manifested by painful motion; it is not shown to be manifested by arthritis or multiple painful or unstable scars, and is not ankylosed. CONCLUSIONS OF LAW 1. A 50 percent rating is warranted from [the earlier effective date of] August 21, 2018 (but not earlier), for the Veteran's bilateral pes planus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.71a, Code 5276. 2. The criteria for SMC at the housebound rate are met from (the earlier effective date of) August 21, 2018. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350, 4.25, 4.26. 3. Prior to June 22, 2012, a rating in excess of 70 percent for the Veteran's PTSD was not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Code 9411. 4. A rating in excess of 10 percent for residuals of a left middle finger injury is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, 4.118, Codes 5226, 5229, 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1972 to October 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal of September 2014, June 2016 (which continued a 10 percent rating for a left middle finger disability), and a November 2018 [referred mistakenly as "November 2011" rating decision in the introduction of the September 2019 Board decision] (which awarded service connection to pes planus, rated 30 percent effective August 21, 2018) Department of Veterans Affairs (VA) rating decisions. A January 2019 Board decision remanded the matter of the rating for the left middle finger disability. A September 2019 Board decision took jurisdiction over matters of an earlier effective date for the grant of service connection for PTSD and pes planus, awarded an earlier effective date (to June 27, 2011) for the grant of a 70 percent rating for PTSD, awarded entitlement to a TDIU rating, denied an earlier effective date for the award of service connection of pes planus, and remanded the remaining claims of the ratings for PTSD and pes planus. An April 2020 rating decision (implementing the September 2019 Board decision) increased (to 70 percent) the rating for PTSD (effective June 27, 2011) and implemented the award of a TDIU rating (effective June 22, 2012). While TDIU may be potentially re-raised in the context of an increased rating for PTSD with respect to the effective date, the grant of entitlement to a TDIU rating was nonetheless in effect a full grant of benefits sought in the matter, as the Veteran worked until the date of the grant. A March 2021 rating decision awarded a maximum (100 percent) rating for PTSD (effective March 5, 2021) and an increased (to 50 percent) rating for pes planus (effective August 5, 2020). The Veteran was also awarded special monthly compensation at the housebound rate (SMC, housebound), effective August 5, 2020 (based on PTSD, a single disability rated totally disabling based on unemployability and additional service-connected disabilities, independently rated at 60 percent or more). The Board finds there has been substantial compliance with its January 2019 remand directives pertaining to the matter of the increased rating for his left middle finger disability and the September 2019 remand directives pertaining to the matters of the ratings for PTSD and pes. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Additional evidence (VA treatment records) was received in the record subsequent to the July 2020 supplemental statement of the case (SSOC) addressing the matter of the rating for the left middle finger disability. The records do not contain information relevant to the rating for a left middle finger disability (they do not show any complaints, treatment, or impaired function due to the left middle finger disability). Therefore, a waiver of Agency of Original Jurisdiction (AOJ) initial consideration of the evidence (or return of the record to the AOJ for initial consideration) is not necessary. Increased Rating Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable at such time that an increase in disability had occurred. 38 C.F.R. §§ 3.157, 3.400 (o)(2). Reasonable doubt regarding the degree of disability is to 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 assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 1. Entitlement to a 50 percent rating for bilateral pes planus from the earlier effective date of August 21, 2018 is granted. The Veteran's bilateral pes planus has been rated 30 percent from August 21, 2018 and 50 percent from August 5, 2020 under Code 5276 (for acquired flatfoot). While portions of the rating schedule for the musculoskeletal system were revised effective February 7, 2021, the criteria under Code 5276 remained unchanged. Under Code 5276, a 30 percent rating is warranted for severe bilateral flatfoot. with symptoms including objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. A (maximum) 50 percent rating is warranted for pronounced bilateral flatfoot with symptoms, with marked pronation, extreme tenderness of plantar surfaces, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. An August 2018 VA treatment record notes complaints of continued pain in the arch of both feet (described "like a hot burning needle sticking in his foot"). He reported that custom orthotics have not helped his foot pain, but help his shoes fit better. On September 2018 VA examination, the Veteran reported daily pain in both feet, described as feeling "like a hot needle is punching in the middle of both feet" and feeling like a tearing and ripping sensation daily. He did not report flare-ups that impacted function of either foot. He related that the symptoms occur on walking and also when lying in bed; (he does not have to be moving). Bilateral pes planus and hallux valgus were diagnosed. On physical examination, the Veteran reported pain on use of each foot, accentuated on use and on manipulation. There was no indication of swelling on use. There were no characteristic callouses or extreme tenderness of plantar surface on either foot. There was decreased longitudinal arch height of both feet on weight-bearing. There was no objective evidence of marked deformity of either foot. There was no marked pronation of either foot. The weight-bearing line did not fall over or medial to the great toe of either foot. There was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line. There was inward bowing of the Achilles tendon of both feet. There was no marked inward displacement or severe spasm of the Achilles tendon on manipulation of either foot. The Veteran used arch supports and orthotics, but they did not relieve his symptoms. He had bilateral mild or moderate symptoms due to a hallux valgus condition, and had not had surgery for the condition. While the examiner opined there was no pain on the examination, the examiner also noted [it was] "subjective only." The examiner noted that the functional loss caused by the Veteran's bilateral foot disability included pain on weight-bearing and on non-weight-bearing. The examiner opined that the pes planus causes functional impairment, noting the Veteran reports chronic bilateral foot pain both at rest and with prolonged standing and walking. The examiner was unable to opine on functional loss during flare ups or with repeated use over time as he was not being examined during a flare up or after repeated use over time. Based on this evidence, the November 2018 rating decision awarded a 30 percent rating for bilateral pes planus, effective August 21, 2018, the date on which the Veteran's claim for service connection for a bilateral foot condition was received. A November 2019 VA treatment record notes complaints of decreased activity tolerance associated with the bilateral foot pain. New custom insoles were ordered as the Veteran reported he received no pain relief with the prior insoles. On August 5, 2020 VA examination (pursuant to a Board remand), the Veteran reported it felt like his feet are being ripped apart most times. He reported experiencing severe flares ups of pain in both feet, daily, and sometimes lasting 24 hours. He reports the flare ups just happen and he does not have to move to experience pain. Bilateral pes planus and hallux valgus were diagnosed. On physical examination, the Veteran reported pain on use of both feet, accentuated on use and on manipulation. There was no indication of swelling on use, and there were no characteristic callouses. There was extreme tenderness of the plantar surfaces on both feet, not improved by orthopedic shoes. There was decreased longitudinal arch height of both feet on weight-bearing. There was no objective evidence of marked deformity of either foot or marked pronation of either foot. The weight-bearing line did not fall over or medial to the great toe of either foot. 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 of either foot. There was no marked inward displacement or severe spasm of the Achilles tendon on manipulation of either foot. The Veteran used arch supports, but they did not relieve his symptoms. The examiner noted that the functional loss caused by the Veteran's bilateral foot pain was less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, and with weight-bearing, and non-weight-bearing, disturbance of locomotion, interference with standing, and lack of endurance. The Veteran had bilateral mild or moderate symptoms due to a hallux valgus condition, and had not had surgery for the condition. The examiner opined that the pes planus causes functional impairment, noting the Veteran cannot stand for prolonged periods, squat, or execute skilled movements. The examiner opined the Veteran can engage in strenuous and sedentary activities if he can avoid his limitations. February 2020 and October 2020 VA treatment notes continued complaints of painful flat feet. The Veteran reported he had tried various orthotics and braces over the years without significant success. On examination, the pes planus deformity was unchanged, there were no focal areas of tenderness, and no acute bursal or capsular inflammation; the flat foot deformity was more pronounced on the right. A March 2021 rating decision increased (to 50 percent) the rating for pes planus, effective August 5, 2020, the date of the updated VA examination. The evidence reasonably shows that the Veteran's bilateral pes planus has more closely approximated pronounced pes planus throughout (from August 21, 2018). As noted on VA examinations and in treatment records, throughout the Veteran has reported his feet feel like they are tearing apart and being punched with hot needles. Notably, while the 2018 VA examiner did not find the Veteran had extreme tenderness in the plantar surfaces, the examiner was unable to opine whether there was additional functional loss with repeated use over a period of time and the Veteran described the same symptoms on the 2020 VA examination, when extreme tenderness of plantar surfaces of the feet was noted. He has consistently reported that orthotic appliances did not improve his symptoms. Resolving any remaining reasonable doubt in the Veteran's favor (as required under 38 C.F.R. § 4.3), the Board finds such symptoms reasonably meet the criteria for a 50 percent rating under Code 5276, and a 50 percent rating for bilateral pes planus is warranted from the earlier effective date of August 21, 2018. As the 50 percent rating assigned for bilateral flat feet from August 21, 2018 is the maximum schedular rating for such disability, what is left for consideration is whether separate ratings may be assigned for service-connected impairment shown that is not encompassed under Code 5276 criteria and whether a higher rating may be warranted on an extraschedular basis. Weak foot, pes cavus, metatarsalgia, hammer toe, and malunion of tarsal or metatarsal bones have not been diagnosed, therefore, Codes 5277, 5278, 5279, 5282, and 5283 do not apply. On September 2018 and August 2020 VA examinations, hallux valgus was diagnosed, but the examiner noted the symptoms of hallux valgus were mild to moderate bilaterally. A separate compensable rating for hallux valgus under Code 5280 is not warranted because that Code notes that hallux valgus should be rated severe (the equivalent to amputation of a great toe) to warrant a 10 percent rating. However, both 2018 and 2020 examiners specifically noted that severe symptoms were not shown. Regarding Code 5284, the U.S. Court of Appeals for Veterans Claims (CAVC) has held that use of Code 5284 (for other foot injuries) to rate pes planus constitutes impermissible rating by analogy. The Veteran has not alleged any symptoms or impairment not encompassed by the schedular criteria, and none are evident. Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Board has considered whether there is loss of use of a foot (so as to warrant special monthly compensation under 38 C.F.R. § 3.350. However, the September 2018 and August 2020 VA examinations specifically found that the Veteran's foot function would not be equally well served by an amputation and use of a prosthesis. See 38 C.F.R. § 4.63. Therefore, a rating in excess of 50 percent for bilateral pes planus from August 21, 2018 must be denied. 2. Entitlement to an earlier effective date of August 21, 2018 is warranted for the award of SMC at the housebound rate. VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Under 38 U.S.C. § 1114 (s), SMC is payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. A March 2021 rating decision, which increased the rating for pes planus from 30 to 50 percent effective August 5, 2020, granted entitlement to SMC at the housebound rate from August 5, 2020. The Board has now awarded an earlier effective date of August 21, 2018 for the 50 percent rating for the bilateral pes planus. Throughout from that date, he has had a TDIU rating based on the single disability (PTSD) and now throughout he has had additional service-connected disabilities, independently rated more that 60 percent, combined. Accordingly, the criteria for SMC at the housebound rate under 38 U.S.C. § 1114 (s) have been met throughout from August 21, 2018. Therefore, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114 (s) is shown from the earlier effective date of August 21, 2018. 3. Entitlement to rating in excess of 70 percent for PTSD prior to June 22, 2012 is denied. PTSD is rated under Code 9411 (and the general rating criteria for mental disorders). A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent (maximum schedular) rating for PTSD is warranted when there is total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms result in functional impairment associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Thus, while certain symptoms might be present on isolated occasions, such symptoms must also produce the contemplated level of occupational and social impairment to provide a basis for increased rating assignments in any particular period. When evaluating the level of disability from a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. In a July 2011 psychiatric assessment by his treating VA psychiatrist (Dr. D.K.), PTSD was diagnosed (and a GAF score of 40 was assigned). The Veteran described severe signs of anxiety, agitation, and paranoia. The provider opined that the Veteran's psychiatric diagnoses result in total occupational and social impairment and that he would not be able to engage in gainful employment due to the severity of his mental disorder. On April 2012 VA psychiatric examination, PTSD and alcohol dependence were diagnosed. While the Veteran reported a close relationship with his mother and cousin, he reported he feels like they treat him like a child. He reported that he spends most of his time at his house, leaves the house every few weeks, and will not leave the house alone. His mother cooks for him. He reported that he was last employed as a cab driver but he got into arguments with customers and coworkers, had trouble appropriately interacting with others and difficulty following instructions. The examiner noted the following symptoms: depressed mood; anxiety; suspiciousness; chronic sleep impairment (reporting he obtains 3 to 4 hours of sleep per night); disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and, difficulty adapting to stressful circumstances, including work or a work like setting. The examiner opined the Veteran had a severe impairment in his social and work functioning due to his irritability, distancing, distrust of others, and hypervigilance, and that the Veteran's psychiatric diagnoses resulted in occupational and social impairment with deficiencies in most areas, but that he was capable of managing his own financial affairs. The examiner explained that it was possible to differentiate what portion of occupational and social impairment is attributable to each diagnosis, but that most of his symptoms and impairment are related to PTSD and the alcohol dependence further contributes and/or exacerbates his symptoms as he is most likely using alcohol to cope with symptoms. In September 2012 statements in support of the claim, the Veteran's mother related she ensures he takes his medications and he no longer had the concentration to sustain himself. A friend reported the Veteran expresses paranoia, no longer grooms himself, and would start jobs but fail to finish them. The Veteran stated that in August 2011 he had a job he liked, and which paid well, but he had to resign for the safety of himself and others. In his September 2012 formal TDIU claim, the Veteran reported he lasted worked full time as a tow truck driver on June 21, 2012. In an August 5, 2013 VA Form 21-4192, his last employer reported he worked in highway maintenance and resigned on June 18, 2012; prior to resigning he worked full time. VA treatment records note paranoia (in which he believes the government is experimenting on him) and hypervigilance with very limited interpersonal skills (see September 2011 and July 2012 VA treatment records). July 2012 VA treatment records note the Veteran reported suicidal ideation and his mother took him to the hospital where he remained hospitalized for 2 days. As noted above, while the schedular rating criteria provide examples of the types of symptoms associated with specific ratings for psychiatric disability, to warrant a specific rating the evidence must show that symptoms of the disability result in the contemplated level of functional impairment associated with the rating. See Vazquez-Claudio v. Shinseki, 713 F.3d, 112. The Veteran's PTSD has been rated 70 percent from June 27, 2011 and 100 percent from March 5, 2021. The September 2019 Board decision granted the Veteran entitlement to a TDIU rating based on the impairment caused by his PTSD disability. The April 2020 rating decision awarded entitlement to a TDIU rating, effective June 22, 2012 (the day following his last reported day he worked). As a TDIU rating is a total rating under alternate criteria and it was awarded based on the single disability of PTSD with alcohol use disorder, entitlement to a 100 percent schedular rating for PTSD from June 22, 2012 is rendered moot. [The March 2021 rating decision granted the Veteran a 100 percent schedular rating for PTSD effective March 5, 2021, stating it was the earliest date on which it was factually ascertainable that an increase in the disability occurred (i.e., total occupational and total social functional impairment was shown.] Accordingly, the question remaining is whether, at any time from June 27, 2011 to June 21, 2012, the Veteran's PTSD symptoms and their impact on occupational and social functioning approximated total occupational and total social impairment, warranting a 100 percent schedular rating. A preponderance of the evidence is against a finding that the Veteran's occupational and social impairment approached the total occupational and social impairment level contemplated by a 100 percent rating during that period. From June 27, 2011 to June 21, 2012, there is no objective evidence of gross impairment in thought processes or communication, persistent danger of hurting self or others, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Although the July 2011 psychiatric assessment by his treating VA psychiatrist noted he experienced severe anxiety, agitation and paranoia and opined his psychiatric symptoms result in total occupational and social impairment, the frequency, duration, and severity of these symptoms were not such as to produce total occupational and social impairment. Notably, the Veteran remained regularly employed on a full time until he resigned on June 18, 2012, which of itself is strong evidence weighing against a finding of total occupational impairment. The Veteran reported he had a close relationship with his mother and a cousin and that he lived with his mother. VA treatment records and examinations show that he was able to (and does) manage his own finances. The frequency, duration, and severity of the Veteran's symptoms, and the level of overall functioning shown simply do not reflect total occupational and total social impairment. Accordingly, a rating in excess of 70 percent for PTSD was not warranted prior to June 22, 2012. 4. Entitlement to a rating in excess of 10 percent for a left middle finger disability is denied. The Veteran's residuals of left middle finger injury have been assigned a 10 percent rating under Code 5226-7804. The hyphenated diagnostic code indicates that the left middle finger disability is rated, by analogy, as a painful scar under the criteria for a skin disability under 38 C.F.R. § 4.118. Scars are evaluated under 38 C.F.R. § 4.118, Codes 7800 through 7805. Code 7800 applies to scars of the head, neck, and face, (and therefore does not apply in this case). Codes 7801 applies to scars not of the head, neck, and face that are associated with underlying soft tissue damage. Code 7802 applies to scars not of the head, neck, face, and neck that are not associated with underlying soft tissue damage. Under Code 7802, a (maximum) 10 percent rating is warranted for scars with an area or areas of at least 144 square inches (929 square cm). See 38 C.F.R. § 4.118. Under Code 7804, a 10 percent rating is warranted when one or two scars are unstable or painful. A 20 percent rating is warranted when three or four scars are unstable or painful. Under Code 7805, scars are rated under an appropriate Code for any disabling effects not considered in a rating under Codes 7800 to 7804. During the pendency of the appeal, the rating criteria for evaluating a skin disorder under 38 C.F.R. § 4.118 was amended effective August 13, 2018. These amendments revised certain diagnostic codes to state that disabilities evaluated under these Codes should be rated under the General Rating Formula for the Skin. However, the Board notes that criteria under Code 7804 were not amended. 38 C.F.R. § 4.118. Additionally, the rating criteria for evaluating the musculoskeletal system were revised effective February 7, 2021, but the criteria under Codes 5226 and 5229 were not revised. Under Code 5229, a 0 percent rating is warranted with a gap of less than one inch (2.5 cm) between the fingertip and the proximal transverse crease of the plan, with the finger flexed to the extent possible, or; with extension limited by no more than 30 degrees. A (maximum) 10 percent rating is warranted with a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the plan, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. Under Code 5226, ankylosis of the middle (long) finger, (unfavorable or favorable) warrants a 10 percent rating. A Note following Code 5226 requires consideration of whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. See 38 C.F.R. § 4.71a, Code 5226, Note (1). When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Veteran's claim for an increased rating for residuals of a left middle finger injury was received May 29, 2014. The relevant period for consideration therefore begins one year prior, in May 2013. On June 2013 VA hand and finger examination, the Veteran reported pain in the finger when it was cold or rainy; he denied experiencing flare ups. On examination, there was no limitation of left-hand motion, to include after repetitive testing. There was no tenderness or pain to the joints or soft tissue of the hand. Muscle strength testing of the left hand was normal and there was no ankylosis. A scar was not noted. The examiner opined that left hand function was not so diminished that amputation with prosthesis would equally serve the Veteran and that the disability has no functional impact. On June 2013 VA scars examination, only a scar on the scalp was found. On September 2019 VA hand and finger examination, the Veteran reported he started to experience flare-ups of pain and swelling in cold or bad weather and that he takes over-the-counter medication as needed during a flare up. He reports during a flareup, he is unable to grab or touch anything as it is very painful. On examination, there was no limitation of motion of the left hand, to include after repetitive testing. The examiner opined the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time and with flare ups. The examiner explained after review of the Veteran's records (including the order request, DBQ, physical examination, reported history, subjective complaints, relevant evidence of record, and using his medical knowledge and examination), the examiner had no basis to offer additional losses of function or motion with repeated use over time or with flare ups. There was no tenderness or pain to the joints or soft tissue of either hand. Muscle strength testing of the left hand was normal and there was no ankylosis. Diagnostic testing found no abnormal findings. A scar was not noted. The examiner opined that left hand function was not so diminished that amputation with prosthesis would equally serve the Veteran and that the disability has no functional impact. On September 2019 VA scar examination, the examiner stated there was no visible scar and a scar was not diagnosed October 2019 VA treatment records note complaints of his left middle finger hurting. An x-ray of the finger found a remote healed tuft fracture and no acute process was noted. At the outset, the Board notes the record does not show the Veteran has a scar on his left middle finger. See June 2013 VA examinations and September 2019 VA examinations. Notably, on August 2007 VA finger and scar examinations (which the September 2007 rating decision discussed when awarding service connection for left middle finger strain, rated 10 percent for superficial painful scar), a scar on the left middle finger is not shown. Rather, on August 2007 VA examinations, the Veteran reported he experienced in the middle finger stiffness every morning, occasional swelling, sensitivity to the touch, and flare ups of pain and functional loss when it rains or snows. Although a scar was not noted during the period on appeal, the Board will not disturb the favorable decision assigned by the Agency of Original Jurisdiction (AOJ). The evidence of record does not show that the Veteran's left middle finger disability warrants a rating higher than 10 percent. Limitation of motion was not found on June 2013 or September 2019 VA examinations. Additional factors that could provide a basis for an increased rating have also been considered. The thumb, index, ring, and little fingers are not involved. Ankylosis is not shown, and arthritis is not shown or claimed. On September 2019 VA examination, the Veteran reported that during a flare up his middle finger is very painful causing him not to grip or touch anything due to the pain, but no further information regarding possible impact on his range of motion or functioning was provided. The Veteran is a layperson, and is not competent to establish the degree (if any) of ankylosis by his own opinion. That is a medical question that requires medical expertise (informed by diagnostic studies and range of motion testing). See Jandreau, 492 F. 3d at 1377. The examiner indicated that based on the evidence of record and his medical expertise, he could not offer an opinion regarding additional loss of functioning during flare-ups (but did not discuss symptoms at such times other than pain, which is already the basis for the current 10 percent rating assigned). The Veteran is already in receipt of 10 percent rating under Code 5226-7804 for left middle finger strain. The Board has considered whether a higher rating under Code 7804 is warranted and finds it is not. The record does not show the Veteran has three to four scars that are unstable and painful. VA examinations only show he has a scar on his scalp. The analysis turns to whether a separate rating is warranted under 38 C.F.R. § 4.40 for functional loss with painful motion. The Veteran is already in receipt of a 10 percent rating for his residuals of a left middle finger injury under Code 5226-7804 based on pain. While the Veteran reported flare ups of functional loss and pain on September 2019 VA examination, symptoms of finger pain are contemplated by the rating assigned (the rating under Code 5226-7804) and to consider pain again as a basis for a higher rating due to functional loss and painful motion under 38 C.F.R. § 4.40 would violate the fundamental principle relating to pyramiding. See 38 C.F.R. § 4.14, 4.71a, 4.118. The critical element in permitting the assignment of more than one evaluation under different diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of another condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also VAOPGCPREC 23-97. The assignment of a separate rating based on pain would constitute overlapping symptomatology (i.e., pain). Accordingly, a separate rating under 38 C.F.R. § 4.40 for functional loss with painful motion is not warranted. As the preponderance of the probative evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the appeal in this matter must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 55. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, Associate 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.