Citation Nr: 21064473 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 13-06 302A DATE: October 20, 2021 ORDER Entitlement to an initial compensable rating for lumbar spine disability prior to September 24, 2012 and a rating higher than 10 percent thereafter is denied. Entitlement to a rating higher than 10 percent for left knee disability is denied. Entitlement to an initial rating higher than 10 percent for right shoulder disability prior to September 9, 2020 and a rating higher than 20 percent thereafter is denied. Entitlement to an initial rating higher than 10 percent for left shoulder disability prior to September 9, 2020 and a rating higher than 20 percent thereafter is denied. Entitlement to an initial rating higher than 10 percent for right foot disability prior to September 9, 2020 and a rating higher than 20 percent thereafter is denied. FINDINGS OF FACT 1. Prior to September 24, 2012, no significant limitation of motion or other functional impairment of the Veteran's lumbar spine disability was shown. 2. As of September 24, 2012, the Veteran's lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine that exceeds 60 degrees; combined range of motion of the thoracolumbar spine that exceeds 120 degrees; the absence of spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and the absence of incapacitating episodes with bedrest prescribed by a doctor, and no additional neurological disability other than the service-connected left lower extremity radiculopathy. 3. For the entire appeal period, the Veteran's left knee disability has not resulted in a compensable limitation of flexion or extension and no disability other than painful limitation of motion has been demonstrated. 4. Prior to September 9, 2020, the most probative evidence does not show that the Veteran's right (major) shoulder disability was productive of compensable right arm limitation of motion, ankylosis, or other impairment of the humerus, clavicle, or scapula. 5. From September 9, 2020, the most probative evidence does not show that the Veteran's right shoulder disability has been productive of right arm limitation of motion to midway between the side and shoulder or less (due to his shoulder disability); or, to 25 degrees from side; or ankylosis, or other impairment of the humerus, clavicle, or scapula. 6. Prior to September 9, 2020, the most probative evidence does not show that the Veteran's left (minor) shoulder disability was productive of compensable left arm limitation of motion, ankylosis, or other impairment of the humerus, clavicle, or scapula. 7. From September 9, 2020, the most probative evidence does not show that the Veteran's left shoulder disability has been productive of left arm limitation of motion to midway between the side and shoulder or less; or, to 25 degrees from side; or ankylosis, or other impairment of the humerus, clavicle, or scapula. 8. Prior to September 9, 2020, the evidence indicates that the Veteran's right foot disability manifested as moderate symptoms, to include pain on use. 9. From September 9, 2020, the right foot disability manifested in severe symptoms of pain accentuated on use and manipulation and swelling of the foot. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for lumbar spine disability prior to September 24, 2012 and a rating higher than 10 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5242. 2. The criteria for a rating higher than 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5260, 5261. 3. The criteria for an initial rating higher than 10 percent for right shoulder disability prior to September 9, 2020 and a rating higher than 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.71a, Codes 5003, 5200-03. 4. The criteria for an initial rating higher than 10 percent for left shoulder disability prior to September 9, 2020 and a rating higher than 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.71a, Codes 5003, 5200-03. 5. The criteria for an initial rating higher than 10 percent for right food disability prior to September 9, 2020 and a rating higher than 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.25, 4.31, 4.40, 4.45, 4.59, 4.71a, Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to August 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2012, the Veteran testified during a formal RO hearing regarding these claims. These matters have been remanded several times, to include most recently in May 2021, for further development to include retrospective opinions. See May 2021 Board remand. The Veteran previously raised issues regarding the adequacy of his initial VA examinations, particularly including the May 2010 pre-discharge and September 2012 VA examinations. Any deficiencies, however, in those examinations cannot be remedied at this time. The Board finds that those examinations together with the Veteran's statements and the contemporaneous medical records are sufficient to address the factual and medical issues involved in rating his disabilities. Further, as noted, retrospective opinions have been obtained, that the Board finds to be adequate. Indeed, the most recent VA examiner thoroughly reviewed the claims file to include the earlier appeal periods pertaining to the Veteran's disabilities and provided opinions that considered all of the procurable data. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.") To be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). In the context of examinations evaluating functional loss in the musculoskeletal system under diagnostic codes based upon limitation of range of motion (ROM), when pain is associated with movement, to be adequate for rating purposes an examination must address whether pain could significantly limit functional ability during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Mere lack of occasion to observe the joint during a flare-up or after prolonged use is an insufficient basis for finding it speculative to respond. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). The Board observes that on February 7, 2021, a final rule, which amends the Schedule for Rating Disabilities by revising the portion of the schedule that addresses the musculoskeletal system, went into effect. The Board notes, however, the disabilities currently before the Board has not undergone any substantive changes. Finally, the Board has reviewed the record of evidence comprehensively. Although the Board has an obligation to provide reasons and bases to support a decision, there is no requirement to discuss, in detail, all the evidence submitted by or on behalf of a Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, however, does not have to discuss each piece of evidence). The analysis below focuses on the most relevant evidence about what this evidence shows, or fails to show, about the issue on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not discussed explicitly. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 1. Entitlement to an initial compensable rating for lumbar spine disability prior to September 24, 2012 and a rating higher than 10 percent thereafter The Veteran's lumbar spine disability (degenerative arthritis) is currently rated 10 percent under Code 5242, effective from September 24, 2012. Prior to September 24, 2012 his lumbar disability is assigned a 0 percent rating. He asserts that higher ratings are warranted both prior to September 24, 2012, and thereafter. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A rating of 100 percent requires unfavorable ankylosis of the entire spine. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. A rating of 40 percent requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A rating of 20 percent requires 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 rating of 10 percent is assigned with 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. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, note (2) (See also Plate V). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire spine segment, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Formula, Note (5). During May 2010 pre-discharge VA examination, physical examination of the thoracolumbar spine does not reveal any evidence of radiation pain on movement, weakness, muscle spasm, tenderness, guarding, atrophy of limbs or change in muscle tone. The straight leg raise test and Lasègue's signs are negative on the right and left. No fixed position of the lumbar spine is identified. The range of motion is within normal limits. Indeed, flexion is 90 degrees; extension, right lateral flexion, left lateral flexion, right rotation, and left rotation are all each 30 degrees. Pain, weakness, lack of endurance, fatigue or incoordination does not impact further on the range of motion after repetitive use. Inspection of the spine reveals that the position of the head and curvature of the spine are within normal limits. There is symmetry in appearance and spinal motion. There is no history of IVDS. During the September 2012 VA examination, range of motion revealed forward flexion to 85 degrees; with no objective evidence of painful motion; extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation is 30 degrees or greater with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with 3 repetitions without any change in range of motion. There was no localized tenderness or pain to palpation, guarding, or muscle spasm. Muscle strength testing is normal 5/5. There was no muscle atrophy. Deep tendon reflexes are all normal; sensory exam is normal; straight leg raising test is negative; there is no radicular pain or any other signs or symptoms due radiculopathy. No neurologic abnormalities or IVDS. No assistive device is needed. During September 2020 VA examination, the VA examiner provided a diagnosis of lumbosacral strain with degenerative arthritis and spondylosis. The Veteran reported flare-ups of the thoracolumbar spine. He reported having functional loss or functional impairment of the thoracolumbar spine. Objective medical testing was completed. Range of motion testing showed forward flexion at 80 degrees, extension at 20 degrees, right lateral rotation at 15 degrees, left lateral flexion at 20 degrees, right lateral rotation at 30 degrees and left lateral rotation at 30 degrees. The range of motion was not shown to contribute to a functional loss. Pain noted on examination and causes functional loss. Pain demonstrated on forward flexion, extension, right lateral rotation and left lateral flexion planes of motion. There is no evidence of pain with weight bearing. There is objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the lumbar spine. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. He was not examined immediately after repetitive use over time. The VA examiner indicated pain significantly limits functional ability with repeated use over a period of time. The VA examiner described in terms of range of motion as forward flexion at 70 degrees, extension at 10 degrees, right lateral rotation at 5 degrees, left lateral flexion at 10 degrees, right lateral rotation at 20 degrees and left lateral rotation at 20 degrees. The Veteran was not examined during a flare-up. The VA examiner indicated pain significantly limits functional ability with flare-up. The VA examiner described in terms of range of motion as forward flexion at 70 degrees, extension at 10 degrees, right lateral rotation at 5 degrees, left lateral flexion at 10 degrees, right lateral rotation at 20 degrees and left lateral rotation at 20 degrees. He has muscle spasm not resulting in abnormal gait or abnormal spinal contour. There is no objective evidence of pain when the spine is non-weight bearing. No neurologic abnormalities. During a January 2021 file review, the VA examiner indicated that the Veteran's range of motion of the lumbar spine from previous examinations in 2010 and 2012 shows no documentation as to the manner in which the range of motion was measured. He indicated that there is no way to determine if the range of motion was active or passive motion or if the joint was measured in weight bearing or non-weight bearing without mere speculation. In an August 2021 retrospective opinion, the examiner indicated that a thorough review of the claims folder had been done. He indicated that from 2010 to 2012, the Veteran's thoracolumbar spine range of motion was not significantly different. The examiner noted that from 2010 to 2012, the symptoms, range of motion, and functional impact were not significantly different. He indicated that when back spasms occur, there is significant functional impact to activities of daily living and work-like tasks. Finally, the examiner considered all procurable data and concluded that active and weight-bearing range of motion during flare-ups was more likely than not to decrease. However, the examiner further noted that any examiner in the medical community cannot determine to what extent in degrees without speculation. Based on a review of the evidence of record, the Board finds that the Veteran had a diagnosis of degenerative changes in the lumbar spine for the entire period on appeal. Prior to September 24, 2012, he had a full range of motion, and reported some pain on motion but no limitation of function was shown on examination. He reportedly was taking no pain medication, had no atrophy and all reflexes were normal. There was no radiculopathy reported on that examination, and overall, a basis for a compensable rating at that time is not shown. As noted, from September 24, 2012 a 10 percent rating has been assigned for the Veteran's lumbar spine disability. The Board finds that the criteria for the next higher rating of 20 percent have not been met at any time pertinent to this appeal. At no time during the period on appeal has forward flexion of the thoracolumbar spine been shown to be limited to 60 degrees, or the combined range of motion of the thoracolumbar spine been shown to be limited to 120 degrees. At no time during the period on appeal has the Veteran exhibited muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Moreover, as the criteria under the General Rating Formula for ratings above 20 percent are based on consistently lowered ranges of motion, up to and including ankylosis, it cannot be said that the criteria for any higher ratings are more nearly approximated than are those for the current 10 percent rating. See 38 C.F.R. § 4.7. The Board also finds that, at no time during the period on appeal has the lumbar spine disability manifest as IVDS. Nevertheless, there have been no incapacitating episodes of IVDS requiring bed rest prescribed by a doctor and treatment by a doctor. Therefore, a rating higher than 10 percent is not warranted based on the rating schedule for IVDS. Further, there was no evidence that the Veteran experiences additional limitation due to pain on repetition. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Therefore, the Board finds that a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.71a, Codes 5235-5242. Although the Veteran clearly has pain, this pain has been considered in the current rating for his back disability. The Veteran has not demonstrated any additional limitation of motion in his back. There is no other demonstrated disability present in his back at any time during the applicable appeal period. Further, there is no additional neurologic abnormalities other than the service-connected radiculopathy of the left lower extremity. Accordingly, his claim for a rating even higher than 10 percent for his lumbar spine disability is denied. 2. Entitlement to a rating higher than 10 percent for left knee disability The Veteran's left knee disability is currently rated 10 percent under Code 5260 for limitation of flexion of the leg, effective from May 14, 2012. Historically, a January 2011 rating decision granted service connection for left knee disability, rated noncompensable effective from September 1, 2010 the day after his discharge from service. The Veteran appealed the January 2011 rating decision in February 2011; however, he did not list the left knee disability. During the RO hearing, the Veteran requested an increased rating for his left knee disability, as he was informed that the period for him to appeal the evaluation for his left knee disability had expired. An August 2013 rating decision assigned a 10 percent rating for left knee disability, effective from May 14, 2012 the date of the claim for increase. As such, the Board will consider the period effective from the claim for increase. Under this Code, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II. The Board will also consider Code 5261 for limitation of extension of the leg. Under this Code, a noncompensable rating is warranted when extension is limited to 5 degrees. A 10 percent rating is warranted when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees. A 50 percent rating is warranted when extension is limited to 50 degrees. 38 C.F.R. § 4.71a. Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II. Codes 5260 and 5261 are for limitation of motion. They provide criteria for limitation of flexion and extension of the leg. When a rating of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Code, any additional functional loss the Veteran may have sustained by virtue of other factors. Those factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. §§ 4.40, 4.45 (2020); DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 (1997). During May 2010 pre-discharge VA examination, the Veteran reported that when his left knees flare up, it is difficult to do anything. He reports feeling left knee pain. Physical examination of the left knee is within normal limits without significant alteration in form or function. There is no edema, effusion, weakness, tenderness, redness, heat, or abnormal movement. There is no evidence of recurrent subluxation, instability, locking, pain, joint effusion, or crepitus. No deformity, guarding of movements, malalignment, or drainage. No fixed position is identified. Range of motion is within normal limits. Flexion is 140 degrees and extension is 0 degrees. There is no varus/valgus instability, and the Drawer and McMurray tests are negative. Pain, weakness, lack of endurance, fatigue or incoordination does not impact further on the range of motion after repetitive exercise. There was no left knee pathology shown. During September 2012 VA examination, range of motion revealed forward flexion to 85 degrees; with no objective evidence of painful motion; extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation is 30 degrees or greater with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with 3 repetitions without any change in range of motion. Range of motion reveals left knee flexion is 140 degrees or greater; extension is 0 degrees. There was no objective evidence of painful motion. The Veteran was able to perform repetitive testing without range of motion loss. There was no additional loss of motion due to repetitive use or flare-ups. There was normal muscle strength testing in both flexion and extension. Joint stability tests were all normal. There is no evidence or history of recurrent patellar subluxation/dislocation. During June 2013 VA examination, the Veteran reported that he experiences flare-ups with prolonged standing, sitting, running, and crossing his legs. Range of motion reveals flexion is 135 degrees with pain at 130 degrees and extension to 0 degrees. The Veteran is able to perform repetitive-use testing with 3 repetitions. There was no change in motion. He experiences pain on movement. Muscle strength testing was 5/5 for both left knee flexion and extension. Joint stability tests were all normal. There is no history of recurrent patellar subluxation or dislocation. He occasionally uses a brace for assistance. During September 2020 VA examination, the Veteran denied flare-ups. The examiner noted that there was evidence of pain with weight-bearing. Range of motion reveals flexion to 140 degrees and extension is 0 degrees. Although pain is noted on the exam, such does not result in or cause functional loss. No loss of function with repetitive use. Functional ability with repeated use not significantly limited by pain, weakness, fatigability, or incoordination with repeated use over time. Muscle strength testing is 5/5 for the left knee for both flexion and extension. No muscle atrophy or ankylosis was noted. Joint stability tests were all normal. There is no history of recurrent patellar subluxation or dislocation. The Veteran denied any current use of assistive devices. During a January 2021 file review, the examiner indicated that when reviewing the Veteran's range of motion of the left knee from previous reports in 2010 and 2012 there is no documentation as to the manner in which the range of motion was measured there is no way to determine if the range of motion was active or passive motion or if the joint was measured in weight bearing or non-weight bearing without mere speculation. There is no documentation of context throughout the exam for any indication. In an August 2021 retrospective opinion, the examiner indicated that a thorough review of the claims folder had been done. He indicated that from 2010 to 2012, the Veteran's left knee disability range of motion was not significantly different. The examiner noted that from 2010 to 2012, the symptoms, range of motion, and functional impact were not significantly different. The examiner considered all procurable data and concluded that active and weight-bearing range of motion during flare-ups was more likely than not to decrease. However, the examiner further noted that any examiner in the medical community cannot determine to what extent in degrees without speculation. In light of the evidence, as the left knee range of motion has not, at any point during the appeals period, been sufficiently limited to warrant a compensable rating, i.e., extension to 10 degrees or flexion to 45 degrees, an increased disability rating under Codes 5260 or 5261 is not warranted. As such, the currently assigned 10 percent disability rating for the left knee disability based on painful motion and limitation of motion which is not compensable under Code 5003 is appropriate and the claim for increased disability rating must be denied. The evidence does not show that the Veteran has any of the diagnosis, in the left knee, which would trigger application of other rating codes, such as Codes 5256 (ankylosis), 5258 (dislocated semilunar cartilage), 5262 (impairment of tibia and fibula), and 5263 (genu recurvatum). The Board again acknowledges that the rating criteria for musculoskeletal disabilities, including knees, were revised on February 7, 2021. In this instance, however, the specific rating criteria and Codes relevant to the Veteran's left knee disability was not affected by the changes and the revisions are therefore not applicable. 38 C.F.R. § 4.71a; 85 FR 76460, Nov. 30, 2020; 86 FR 8142, Feb. 4, 2021. 3. Entitlement to an initial rating higher than 10 percent for right shoulder disability prior to September 9, 2020 and a rating higher than 20 percent thereafter 4. Entitlement to an initial rating higher than 10 percent for left shoulder disability prior to September 9, 2020 and a rating higher than 20 percent thereafter The Veteran's bilateral shoulder disabilities are currently rated as 20 percent each effective from September 9, 2020 for limitation of motion. Prior to such date the disabilities are rated at 10 percent each. The Veteran asserts that higher ratings are warranted. Under Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Code 5201. Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Effective February 7, 2021, VA amended Code 5201 to reflect that limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating. Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. Normal forward flexion of the shoulder is 0 to 180 degrees; abduction is 0 to 180 degrees; and internal and external rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Forward flexion and abduction to 90 degrees amounts to shoulder level. During May 2010 pre-discharge VA examination, the Veteran reported when his shoulders flare up, he is unable to lift anything. Bilateral shoulder range of motion reveals flexion of 180 degrees; abduction of 180 degrees; external rotation of 90 degrees; and internal rotation of 90 degrees. Pain, weakness, lack of endurance, fatigue, or incoordination does not impact further on the range of motion after repetitive use. During September 2012 VA examination, the Veteran reports that he still has pain with any movement or lifting. Range of motion reveals right shoulder flexion of 160 degrees with no objective evidence of painful motion; right shoulder abduction of 160 degrees with no objective evidence of painful motion. Left shoulder flexion of 150 degrees with no objective evidence of painful motion; left shoulder abduction of 150 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with 3 repetitions without any changes to the range of motion in either shoulder. The Veteran was shown to have less movement than normal in both shoulders. No localized tenderness or pain on palpation of joints/soft tissue/ biceps tendon of either shoulder. No guarding of either shoulder. Muscle strength testing was 5/5 in both shoulders for both abduction and forward flexion. There was no ankylosis of either shoulder. During September 2020 VA examination, the Veteran reports functional loss with motion/activity over head, daily chores, athletic activity and exercising, bilaterally. Right shoulder range of motion reveals flexion of 45 degrees; abduction of 55 degrees; external rotation of 15 degrees and internal rotation of 90 degrees. The examiner notes the Veteran is unable to lift his arm on his own to perform tasks at shoulder level or even above his head. Pain noted on examination with flexion, abduction, and external rotation and causes functional loss. There is objective evidence of crepitus. Left shoulder range of motion reveals flexion of 135 degrees; abduction of 140 degrees; external rotation of 70 degrees; internal rotation of 90 degrees. Pain was noted on examination and causes functional loss and was exhibited in flexion, abduction, and external rotation. Repetitive use range of motion reveals no additional loss of function, bilaterally. Muscle strength testing was 4/5 bilaterally. The examiner indicated that the reduction in muscle strength was limited due to the Veteran's service-connected cerebrovascular accident (stroke) he experienced in 2016. In an August 2021 retrospective opinion, the examiner indicated that a thorough review of the claims folder had been done. The examiner noted that from 2010 to 2012 the Veteran's right shoulder range of motion slightly decreased, but the measured motion remained non-painful. The examiner noted that from 2010 to 2012, the Veteran's symptoms and slightly decreased range of motion had functionally impacted work overhead and above right shoulder level. Finally, the examiner reported considering all procurable data and concluded that active and weight-bearing range of motion during flare-ups is more likely than not to be severely decrease to a maximum of 45 and 55 degrees in flexion and abduction, respectively. Regarding the left shoulder, the August 2021 VA examiner noted that from 2010 to 2012, the left shoulder range of motion gradually worsened; pain was moderate-severe and persisted; strength was maintained at 5/5, and functional impact had affected more activities. The examiner noted that from 2010 to 2012, the Veteran's symptoms and worsened range of motion had functionally impacted more activities to include any movement or lifting, not just physical activity and stress. Finally, the examiner had considered all procurable data and concluded that active and weight-bearing range of motion during flareups was more likely than not to decrease by 10 to 15 degrees in both flexion and abduction. Based on the above evidence, the assigned 10 percent evaluation for the Veteran's bilateral shoulder disability prior to September 9, 2020, fully contemplates limitation of motion that is noncompensable under Code 5201. The evidence of record prior to September 9, 2020, including May 2010 pre-discharge and September 2012 VA shoulder and arm conditions examination, consistently indicate that the Veteran did not have limitation of motion less than shoulder level or midway between side and shoulder level. Even with considering pain on motion, limitation has not approximated that contemplated for by 20 percent ratings. The Board finds, that the currently assigned 20 percent evaluation from September 9, 2020, fully contemplates limitation of motion to shoulder level or to midway between side and shoulder level. The evidence of record, including a September 2020 VA shoulder and arm conditions examination, has not shown limitation of motion to 25 degrees from the side. As noted, the right shoulder range of motion of 45 and 55 degrees in flexion and abduction documented by the August 2021 VA examiner is the same range of motion noted on the September 2020 VA examination report. As noted, the September 2020 VA examiner determined that the additional decreased range of motion was due to the Veteran's service-connected cerebral vascular accident (which is currently rated at 100 percent). The Board notes that the evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. Consequently, a 30 percent rating for the right shoulder disability due to decreased range of motion is not warranted under Code 5201. The Board notes that the evidence of record fails to reflect that the Veteran's shoulder disabilities are manifested by any symptomatology other than limitation of motion, to include ankylosis, a humerus impairment, or clavicle or scapula impairment, thereby rendering the related Codes of 5200, 5202, and 5203 inapplicable. As to whether an increased rating is warranted per Code 5201 for limitation of motion for the left shoulder, as outlined above, the next higher rating of 30 percent requires evidence that the Veteran's shoulder motion is limited to 25 degrees from the side (for minor extremity). Throughout this rating period, however, the Veteran's recorded ranges of left shoulder motion have reflected shoulder abduction to 140 to 150 degrees and flexion to 150 degrees, which equates to greater than 25 degrees from the side, in keeping with his currently assigned 20 percent rating. Even with pain noted throughout, the Veteran demonstrated flexion and abduction to 140 to 150 degrees in the left shoulder without any functional impairment. Thus, based on these recorded ranges motion, an increased rating pursuant to Code 5201 is not warranted. As to whether an increased rating is warranted based on any functional loss of his shoulders, the Board acknowledges the Veteran's reports that he experiences regular flare-ups. He reported flare-ups in the shoulder when performing chores, reaching up, and when reaching back. He also experienced flare-ups when reaching up. During his flare-ups, he experiences increased pain and limitation of motion, to include loss of use. However, even when considering the Veteran's credible reports of functional loss, the record fails to reflect a basis for awarding a higher rating based on the reported functional loss. During the pertinent VA examination performed during the applicable periods, the Veteran did not demonstrate any additional limitation of either shoulder motion after repetitions of the range of motion testing. Given the totality of this evidence, the Board concludes that the Veteran's additional impairment associated with functional loss does not more nearly approximate the rating criteria for the next higher rating of 30 percent, which requires limitation of motion to 45 degrees for the right shoulder, or limitation of motion to 25 degrees for the left shoulder. In sum, as the evidence of record fails to reflect a basis for awarding ratings higher than 10 percent prior to September 9, 2020 and higher than 20 percent thereafter for the Veteran's service-connected bilateral shoulder disability, the preponderance of the evidence is against the Veteran's claim. Accordingly, there is no benefit of the doubt to resolve on the Veteran's behalf, and an increased rating for the bilateral shoulder disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 5. Entitlement to an initial rating higher than 10 percent for right foot disability prior to September 9, 2020 and a rating higher than 20 percent thereafter The Veteran's right foot disability is currently rated as 20 percent under Code 5276 effective from September 9, 2020. Prior to that date his right foot disability was rated as 10 percent under Code 5099-5020. He asserts that higher disability ratings are warranted. Code 5020 indicates an unlisted musculoskeletal condition rated as synovitis. 38 C.F.R. § 4.71a, Code 5020. Certain conditions, including synovitis, are to be rated on limitation of motion of affected parts as degenerative arthritis under Code 5003. 38 C.F.R. § 4.71a. Code 5003 provides that a rating of 10 percent is for application for each such major joint affected by limitation of motion. As such, the service-connected right foot disability is rated at the maximum rating provided by Code 5003; therefore, a higher disability rating than 10 percent under Code 5003 is not available for the right foot, under this Code prior to September 9, 2020. 38 C.F.R. § 4.71a. As noted, the right foot disability has been rated under Code 5276 effective from September 9, 2020. Under Code 5276, a 10 percent rating is assigned for moderate bilateral flatfoot, with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, or pain on manipulation and use of the feet, either bilateral or unilateral. A 30 percent rating is assigned for severe bilateral flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. A 50 percent rating is assigned for bilateral pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The Board notes that words such as 'severe,' 'moderate,' and 'mild' are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. During the May 2010 pre-discharge VA examination, the Veteran reported his disability had been in existence for 13 years. In addition, he complained of pain, crushing, aching, oppressing, cramping, burning and sharp in nature. On physical examination there was no evidence of abnormal gait. There was no evidence of tenderness, weakness, edema, atrophy, or disturbed circulation. There was no evidence of pes planus, pes cavus, hammer toes, Morton's Metatarsalgia, hallux valgus, or hallux rigidus. The Achilles tendon revealed good alignment. Palpation of the plantar surface and the metatarsal head was nontender. The Veteran did not have any limitations with walking, standing, and did not require any type of corrective shoe gear. Examination of the muscles and bones were normal. Neurological examination showed no alteration in sensory or motor dysfunction. The nerves showed no neuralgia, neuritis, or paralysis. X-ray evidence showed mild narrowing of first metatarsophalangeal joint with small plantar heel spur. The examiner diagnosed status post foot surgeries; well-healed surgical scars; plantar heel spurs, bilaterally; by x-rays; no side effects from treatment or complications from condition identified. During September 2012 VA examination, the Veteran described chronic pain described as throbbing in the right heel/plantar area. He indicated that he is unable to stand for more than 10 minutes without significant severe pain in the right foot. X-rays showed degenerative arthritis of both feet. The Veteran has orthotics from a military podiatrist. During September 2020 VA examination, the Veteran endorsed flare-ups bilateral foot, intensified, stabbing pain any time he is on his feet during prolonged standing and walking, severity 9/10, lasts at least a day or more. Testing was negative for hallux valgus, hallus rigidus, and claw foot. The examiner indicated that the right foot showed no functional loss during flare-ups or when foot used repeatedly over period of time. There was no objective evidence of pain of the right foot during active ROM, no objective evidence of pain bilateral feet during passive ROM. Pain noted on the right foot during weight-bearing. No objective evidence of pain of the right foot during non-weight bearing. The Veteran uses a brace. During January 2021 VA file review, the VA examiner provided after considering all procurable data neither he nor any member of the medical community at large could provide such an opinion without resorting to speculation for the conditions of Veteran's right foot disability. He stated that when reviewing Veterans range of motion of the right foot from previous in 2010 and 2012 there is no documentation as to the manner in which the range of motion was measured there is no way to determine if the range of motion was active or passive motion or if the joint was measured in weight bearing or non-weight bearing without mere speculation. There is no documentation of context throughout the exam for any indication. In an August 2021 retrospective opinion, the examiner indicated he thoroughly reviewed the claims file. The examiner noted that from 2010 to 2012, and from 2014 to 2015, the Veteran's right foot range of motion was maintained. He indicated that range of motion was maintained, pain symptoms persisted and fluctuated between 5 and 10 out of 10, and functional impact remained in that he was unable to run or stand more than 10 minutes. Finally, the examiner had considered all procurable data from 2010 to 2015 and concluded that active and weight-bearing range of motion during flare-ups was more likely than not to decrease. He indicated, however, that any examiner in the medical community cannot determine to what extent in degrees without speculation. The examiner noted that from 2010 to 2015, documentation of range of motion in degrees and functional impact with the Veteran's own statements was not readily apparent. The examiner further noted that the Veteran experienced a cerebral vascular accident (CVA) in 2016 which subsequently significantly impacted his right lower extremity function. The Board acknowledges the Veteran's contention that he should have a 20 percent rating prior to September 9, 2020. However, prior to September 9, 2020, a 20 percent rating under Code 5276 is not warranted. The evidence during this period does not indicate severe symptoms such as marked deformity, swelling, or characteristic callosities. Therefore, the Veteran's disability more closely approximated to a 10 percent rating prior to September 9, 2020. As noted, effective September 9, 2020, the RO found a 20 percent rating for a right foot disability is appropriate. The September 2020 VA examination establishes symptoms of pain accentuated on use and manipulation of the foot. Throughout the appeals period, the evidence did not establish marked pronation, marked inward displacement and severe spasm of the tendo achillis on manipulation. Therefore, a 30 percent rating is not warranted. In reaching this decision, the Board has considered the Veteran's buddy statements. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings now assigned. To the extent he asserts his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that higher ratings are warranted. The Board has also considered whether any other diagnostic code would allow for a higher or separate rating for pertaining to the right foot disability from September 9, 2020. The Board finds that the criteria for a 20 percent rating under Code 5284 for moderately severe residuals of a foot injury have not been met or more nearly approximated for any part of the rating period from September 9, 2020. There is no competent medical evidence that reflects the right foot disability results in any functional impact due to right foot disability alone. Notably, the August 2021 examiner indicated that the residuals of the CVA significantly impacted his right lower extremity function. As noted above, the Veteran is currently rated 100 percent for residuals of a CVA that affect his right side. As such, even with consideration of pain on use, the weight of the evidence does not demonstrate moderately severe residuals of a right foot injury. 38 C.F.R. § § 4.3, 4.7. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.