Citation Nr: 21065510 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-50 414A DATE: October 26, 2021 ORDER Entitlement to service connection for a lumbar spine condition is denied. Entitlement to service connection for bilateral pes planus is denied. Entitlement to a rating in excess of 10 percent for a right ankle condition is denied. Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) is granted from April 18, 2013. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. The competent evidence does not demonstrate that any diagnosed lumbar spine condition is attributable to the Veteran's active service or any incident of service, to include as due to a service-connected disability. 2. The competent evidence does not demonstrate that bilateral pes planus is attributable to the Veteran's active service or any incident of service, to include as due to a service-connected disability. 3. The Veteran's right ankle degenerative joint disease is manifested by pain and intermittent swelling resulting in no more than moderate impairment, and no ankylosis, malunion of the os calcis or astralgus, or astralgalectomy. 4. The Veteran's service-connected disabilities together preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). 2. The criteria for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). 3. The criteria for entitlement to a rating in excess of 10 percent for a right ankle condition have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Code 5010-5271. 4. The criteria for entitlement to TDIU have been met from April 18, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1992 to September 1999. These matters were last before the Board in September 2020, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a November 2020 supplemental statement of the case continuing the denial of each listed claim, the case was returned to the Board for its adjudication. Service Connection Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection is permitted based on aggravation, such that compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439 (1995). Consequently, there exist two potential theories of entitlement to secondary service connection namely, causation under § 3.310(a) and aggravation under § 3.310(b). 1. Lumbar Spine Condition The Veteran seeks service connection generally for a lumbar spine condition, and the possibility exists that the condition may be secondary to his service-connected right ankle condition. The question for the Board is whether the Veteran has a lumbar spine condition that began during service or is at least as likely as not related to an in-service injury, event, or disease. In the alternative, the question for the Board is whether the Veteran's lumbar spine condition was proximately caused by or aggravated by a service-connected disability, namely, the Veteran's right ankle condition. The Board concludes that, while the Veteran has been diagnosed with degenerative changes throughout his spine characterized variously degenerative disc disease and degenerative joint disease at L5-S1, the preponderance of the evidence is against a finding that any lumbar spine condition began during active service, or is otherwise related to an in-service injury, event, or disease, to include as secondary to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.310. A review of available service medical records does not show that the Veteran ever complained of back pain, nor was he ever diagnosed with or treated for the same. To the Board's knowledge, a copy of the Veteran's discharge examination has not been associated with the claims file. VA is required to obtain relevant documents held by any Federal department or agency that the Veteran adequately identifies and authorizes the Secretary to obtain. 38 U.S.C. § 5103A (c)(3); 38 C.F.R. § 3.159 (e). The Board acknowledges that VA has a heightened duty to assist the Veteran in developing his claims since the records may have been lost, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); O' Hare v. Derwinski, 1 Vet. App. 365 (1991). Case law does not, however, lower the legal standard for proving a claim for service connection but simply increases the Board's obligation to consider that evidence which may be favorable to the Veteran. Russo v. Brown, 9. Vet. 46, 51 (1996). Post-service, VA medical records show that the Veteran complained of back pain associated with his right ankle condition when he first sought treatment through VA in September 2013. The impression at that time was degenerative joint disease of the lumbar spine. Thereafter, an October 2015 outpatient record reflects that he reported experiencing back pain for the previous two months. Subsequent records show that the Veteran has continued to receive treatment for low back pain that he associates with his right ankle condition; to date, however, no VA medical professional has ever associated the lumbar spine condition with the right ankle condition. Pursuant to the Board's September 2020 remand instructions, the Veteran was afforded an October 2020 VA spine examination, during which he reported that he gradually developed lower back pain around 2012 or 2013. He further contended that weight distribution from his right ankle condition may have precipitated his lumbar spine condition. After an in-person examination, the VA examiner set forth a diagnosis of degenerative disc disease and degenerative joint disease of the lumbar spine. Regarding the likely etiology of the claimed lumbar spine disorder, the October 2020 examiner found that it was less likely than not the condition was incurred in or otherwise attributable to service. In support thereof, the examiner noted the lack of treatment for or diagnosis of a lumbar spine condition in service and for over 10 years after the Veteran's discharge. The examiner also opined that it was less likely than not that the condition was secondary to a service-connected disability, namely, the right ankle condition. The examiner further found that it was less likely than not that the low back condition was aggravated beyond its natural progression by the right ankle condition. In support of this opinion, the examiner detailed that there was "no known medical association" between a right ankle sprain and the development of degenerative disc disease and degenerative joint disease. The Board is aware that section 3.310 does not utilize the "beyond its natural progression" language and has thus considered whether the opinion is adequate. Viewed in the full context of the opinion, the Board finds that the use of this language does not vitiate the opinion's probative value. Specifically, the Board finds that the "no known medical association" language applies to both the causation AND the aggravation prong of the analysis, as the examiner found no connection whatsoever between the right ankle condition and any development of the lumbar spine condition. In support of this opinion, the examiner relied on medical knowledge regarding the biomechanical functions of the lumbar spine and the ankle. Viewing all of this information together, the Board finds that there is no basis for a remand for a further opinion, as the opinion in total adequately addresses the prior remand query as to aggravation, and there is no reasonable likelihood that a further opinion would produce different findings. The Board finds this examination and opinion to be highly probative, as the examiner reviewed the claims file, carried out an in-person examination, and referred to the Veteran's medical history in support of his conclusions. Sklar v. Brown, 5 Vet. App. 140 (1993). Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that the Veteran's lumbar spine condition is attributable to service. To begin, the service treatment records do not document any complaints or treatment related to a low back condition. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Indeed, the Veteran himself has not asserted that the condition began in service. Moreover, as stated the Board finds highly probative the opinion of the October 2020 VA examiner, who confirmed the lack of in-service treatment for low back symptomatology and further highlighted the lack of subsequent medical care for low back symptomatology for several years following service. There is simply no competent evidence to support that the low back condition first diagnosed over 10 years after the Veteran's discharge is related to service. Accordingly, service connection for a lumbar spine condition on a direct basis pursuant to 38 C.F.R. § 3.303(a) is denied. The Veteran may still be entitled to service connection for a low back condition pursuant to his alternative theory of the condition being secondary to the service-connected right ankle disability. As detailed above, secondary service connection is based on either demonstrating that the condition at issue was proximately caused by a service-connected disability or that it was aggravated due to an underlying service-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. The Veteran has not offered any objective supporting medical evidence or any other rationale for his belief that his low back condition was proximately caused by and/or aggravated by the right ankle disability, other than to suggest that his malaligned gait caused by the ankle disability has contributed to his development of a low back condition. The Board also highlights the highly probative opinion of the October 2020 VA examiner, who found that it was less likely than not that the right ankle disability contributed to the development of the lumbar spine condition, either on a direct basis or on an aggravation basis. Accordingly, as there is no competent evidence in the record that supports the Veteran's contention that his lumbar spine condition was proximately caused by or aggravated by his right ankle disability, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for a lumbar spine condition as secondary to a service-connected disability. The Veteran may still be entitled to service connection if all of the evidence establishes that a lumbar spine condition was incurred in service. 38 C.F.R. § 3.303(d). Here, however, there is no evidence of incurrence in service, and again there is an over 10-year gap between discharge and when the Veteran first sought treatment for symptoms of a lumbar spine condition. He has not presented, and the claims file does not otherwise contain, any medical evidence supporting a causal link between a lumbar spine condition and his service. Furthermore, the Veteran's assertion that he has a lumbar spine condition that is attributable to service is outweighed by the opinion of the October 2020 VA examiner. Without any competent evidence in support of the claim to outweigh the probative negative etiology opinion of record, the Board finds that the preponderance of the evidence is against a determination that a medical nexus exists between the Veteran's lumbar spine condition and an in-service injury, event, or disease. Service connection for a lumbar spine condition under 38 C.F.R. § 3.303(d) is denied, and as such the Veteran's claim of entitlement to service connection for a low back condition in total must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the preponderance of the evidence is against the Veteran's claim of service connection for a lumbar spine condition and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 2. Bilateral Pes Planus The Veteran seeks service connection generally for bilateral pes planus, and the possibility exists that the condition may be secondary to his service-connected right ankle condition. The question for the Board is whether the diagnosed pes planus began during service or is at least as likely as not related to an in-service injury, event, or disease. In the alternative, the question for the Board is whether the bilateral pes planus was proximately caused by or aggravated by a service-connected disability, namely, the Veteran's right ankle condition. The Board concludes that, while the Veteran has diagnosed bilateral pes planus, the preponderance of the evidence is against a finding that the condition began during active service, or is otherwise related to an in-service injury, event, or disease, to include as secondary to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.310. A review of available service medical records does not show that the Veteran ever complained of foot pain distinct from his documented treatment for an ankle sprain, nor was he ever diagnosed with or treated for pes planus. As stated, a copy of the Veteran's discharge examination has not been associated with the claims file, but this does lower the legal standard for proving a claim for service connection. Post-service, VA medical records show that the Veteran was assessed with bilateral pes planus when he first sought treatment through VA in September 2013. Subsequent records do not show that the condition was listed as a recurring problem until an October 2019 podiatry consultation wherein the Veteran was again evaluated as having bilateral pes planus. To date, no VA medical professional has ever associated the bilateral pes planus with the right ankle condition. VA attempted to evaluate the nature of the claimed bilateral pes planus in an August 2013 VA foot examination, however, when queried, the Veteran denied filing a claim seeking service connection for a bilateral foot condition and refused to undergo the examination. Pursuant to the Board's September 2020 remand instructions, the Veteran was afforded an October 2020 VA foot examination, during which he reported that he experienced intermittent pain in the arches of his feet. After an in-person examination, the VA examiner confirmed a diagnosis of bilateral pes planus. Regarding the likely etiology of the bilateral pes planus, the October 2020 examiner found that it was less likely than not the condition was incurred in or otherwise attributable to service. In support thereof, the examiner noted the lack of treatment for or diagnosis of bilateral pes planus in service and for over 10 years after the Veteran's discharge. The examiner also opined that it was less likely than not that the condition was secondary to a service-connected disability, namely, the right ankle condition. The examiner further found that it was less likely than not that the pes planus was aggravated beyond its natural progression by the right ankle condition. In support of this opinion, the examiner detailed that there was "no known medical association" between a right ankle sprain and the development of pes planus. The Board is aware that section 3.310 does not utilize the "beyond its natural progression" language and has considered whether the opinion is adequate. Viewed in the full context of the opinion, the Board finds that the use of this language does not vitiate the opinion's probative value. Specifically, the Board finds that the "no known medical association" language applies to both the causation AND the aggravation prong of the analysis, as the examiner found no connection whatsoever between the right ankle condition and any development of the pes planus. In support of this opinion, the examiner relied on medical knowledge regarding the biomechanical functions of pes planus and the ankle. Viewing all of this information together, the Board finds that there is no basis for a remand for a further opinion, as the opinion in total adequately addresses the prior remand query as to aggravation, and there is no reasonable likelihood that a further opinion would produce different findings. The Board finds this examination and opinion to be highly probative, as the examiner reviewed the claims file, carried out an in-person examination, and referred to the Veteran's medical history in support of his conclusions. Sklar v. Brown, supra. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that the Veteran's bilateral pes planus is attributable to service. To begin, the service treatment records do not document any complaints or treatment related to bilateral pes planus, despite consistent treatment for ankle symptomatology that would have necessitated a thorough examination of the Veteran's feet. See Buchanan, supra. Indeed, the Veteran himself has not asserted that the condition began in service. Moreover, as stated the Board finds highly probative the opinion of the October 2020 VA examiner, who confirmed the lack of in-service treatment for bilateral pes planus and further highlighted the lack of subsequent medical care for the condition for several years following service. There is simply no competent evidence to support that the bilateral pes planus first diagnosed over 10 years after the Veteran's discharge is related to service. Accordingly, service connection for bilateral pes planus on a direct basis pursuant to 38 C.F.R. § 3.303(a) is denied. The Veteran may still be entitled to service connection for bilateral pes planus pursuant to his alternative theory of the condition being secondary to the service-connected right ankle disability. As detailed above, secondary service connection is based on either demonstrating that the condition at issue was proximately caused by a service-connected disability or that it was aggravated due to an underlying service-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. The Veteran has not offered any objective supporting medical evidence or any other rationale for his belief that his bilateral pes planus was proximately caused by and/or aggravated by the right ankle disability, other than to suggest that his malaligned gait caused by the ankle disability has contributed to his development of bilateral pes planus. The Board also highlights the highly probative opinion of the October 2020 VA examiner, who found that it was less likely than not that the right ankle disability contributed to the development of the bilateral pes planus, either on a direct basis or on an aggravation basis. Accordingly, as there is no competent evidence in the record that supports the Veteran's contention that his bilateral pes planus was proximately caused by or aggravated by his right ankle disability, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for bilateral pes planus as secondary to a service-connected disability. The Veteran may still be entitled to service connection if all of the evidence establishes that bilateral pes planus was incurred in service. 38 C.F.R. § 3.303(d). Here, however, there is no evidence of incurrence in service, and again there is an over 10-year gap between discharge and when the Veteran first sought treatment for symptoms of bilateral pes planus. He has not presented, and the claims file does not otherwise contain, any medical evidence supporting a causal link between bilateral pes planus and his service. Furthermore, the Veteran's general assertion that his bilateral pes planus is attributable to service is outweighed by the opinion of the October 2020 VA examiner. Without any competent evidence in support of the claim to outweigh the probative negative etiology opinion of record, the Board finds that the preponderance of the evidence is against a determination that a medical nexus exists between the Veteran's bilateral pes planus and an in-service injury, event, or disease. Service connection for bilateral pes planus under 38 C.F.R. § 3.303(d) is denied, and as such the Veteran's claim of entitlement to service connection for bilateral pes planus in total must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the preponderance of the evidence is against the Veteran's claim of service connection for bilateral pes planus and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). Increased Rating for Right Ankle Condition The Veteran is currently in receipt of a 10 percent rating for a right ankle condition, characterized as degenerative joint disease of the right ankle. He seeks an increased rating for the condition for the entirety of the appeal period. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West,12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. The 10 percent rating in this case was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271. Hyphenated Diagnostic Codes are utilized when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this particular case, the hyphenated diagnostic code indicates that the right ankle condition is manifested as traumatic arthritis under 5010, to be rated as limitation of motion of the right ankle pursuant to Diagnostic Code 5271. In addition, the Board notes that the current versions of Diagnostic Codes 5010-5271 were amended effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The current versions of Diagnostic Codes 5010-5271 may not be applied prior to the effective date of February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003). However, the Board finds it may still apply the prior version of Diagnostic Codes 5010-5271 to the entire period on appeal, as the Board is not prohibited from applying a prior regulation in effect during the pendency of a claim to the period on or after the effective date of the new version of the regulation. Thus, the Board finds that it may still apply the prior version of 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5271 to the period on or after February 7, 2021, which is the effective date of the amended criteria, if this would afford a more favorable outcome. The former Diagnostic Code 5010 provides that arthritis due to trauma and substantiated by X-ray findings should be rated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating is assigned; with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is assigned. The former and current versions of Diagnostic Code 5271 provide ratings based on limitation of motion of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling. Marked limitation of motion of the ankle is rated as 20 percent disabling. A 20 percent evaluation is the highest rating warranted for limitation of motion of the ankle. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Words such as "moderate" and "marked" are not defined in the former version of 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, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In the current version of the Rating Schedule, moderate and marked are clearly defined. Moderate limitation of motion equating less than 15 degrees dorsiflexion or less than 30 degrees of plantar flexion. Marked is defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The severity of the right ankle condition was first evaluated in a November 2012 VA examination, during which the Veteran reported that he experienced constant pain, swelling, and limited range of motion of the right ankle. He also endorsed experiencing flare-ups of additional symptomatology with prolonged walking or standing. Range of motion testing revealed right ankle plantar flexion reduced to 35 degrees, with painful motion beginning at 30 degrees, and dorsiflexion reduced to 5 degrees. After repetitive use testing, the right ankle plantar flexion was further reduced to 30 degrees. Following the conclusion of the in-person examination, the examiner noted the following as functional impairments that were attributable to the right ankle condition: less movement than normal, pain on movement, and swelling. Additional testing revealed no loss of muscle strength, instability, tenderness on palpation, or ankylosis. Furthermore, a radiographic examination also revealed moderate degenerative changes throughout the right ankle. In summation, the examiner did not find that the right ankle condition contributed to any impairment of occupational functioning. Pursuant to the Board's September 2020 remand instructions, the Veteran was afforded a new VA ankle examination in October 2020, during which he detailed that he experienced chronic right ankle pain that restricted his ambulation and negatively impacted his gait. He also endorsed experiencing flare-ups of right ankle pain that prevented him from putting any weight on his right foot and restricted his range of motion. Range of motion testing revealed dorsiflexion reduced to 10 degrees and plantar flexion reduced to 20 degrees. The examiner noted that there was pain during the evaluation that caused functional loss in the form of difficulty with prolonged walking and an inability to run. The examiner did find evidence of pain with weight-bearing but did not note any evidence of crepitus. There was no additional loss of motion with repetitive use; however, the examiner did estimate that there would be additional loss of range of motion during a flare-up of pain and/or following repeated use in the form of dorsiflexion reduced to 5 degrees and plantar flexion reduced to 10 degrees. Further testing revealed no loss of muscle strength, ankylosis, or instability. In summation, the examiner found that the right ankle condition would result in occupational impairment due to restricting walking and running. A review of available VA medical records reflects that the Veteran has been receiving treatment for right ankle pain through VA for the majority of the appeal period. A September 2013 outpatient record reflects that the Veteran first began treatment through VA at this time, during which he reported experiencing right ankle pain and swelling ever since service. After an in-person examination, the Veteran was evaluated with right ankle degenerative joint disease. According to the Veteran, he used a cane for gait balance and believed that his body malalignment contributed to other physical ailments. Subsequent records reflect continued treatment for worsening right ankle pain and swelling. A May 2014 podiatry consultation indicates that the Veteran was prescribed lace-up ankle braces and was recommended surgical intervention to relieve his symptomatology. The most contemporary available VA medical record dates from October 2019 and reflects that the Veteran reported experiencing chronic right ankle pain requiring continuous management through the use of medication and other therapies. Upon consideration of the evidence, the Board does not find that an initial rating in excess of 10 percent is warranted for the right ankle condition under either the former or current diagnostic codes. Although it is acknowledged that the Veteran has credibly asserted that he experiences right ankle pain and swelling, there is no indication from the evidence that the resulting functional impairment is any greater than "moderate" in severity. The Veteran still readily works a full-time job requiring him to ambulate regularly, and he was not evaluated as exhibiting loss of range of motion on either of the VA ankle examinations that equated to "marked" under the new regulations. Specifically, even during a flare-up of pain the dorsiflexion was not estimated to be reduced below 5 degrees, and the plantar flexion was not estimated to be reduced below 10 degrees. Moreover, while the rating schedule does contemplate reduced range of motion on account of pain, the painful motion of the right ankle did not result in functional loss that rose to the level of "marked" impairment on either VA examination. Thus, even considering the Veteran's documented complaints of right ankle pain, the Board does not find that a rating in excess of 10 percent is warranted in contemplation of any additional functional loss stemming from right ankle pain. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. The current 10 percent rating is warranted for moderate impairment of function due to degenerative joint disease, and the preponderance of the evidence is against a determination that the Veteran has exhibited "marked" impairment of right ankle function. The Board also reiterates that the Veteran has not exhibited dorsiflexion reduced to less than 5 degrees or plantar flexion reduced to less than 10 degrees as would be necessary to warrant a 20 percent rating under the revised Diagnostic Code 5271. Accordingly, the preponderance of the evidence of record reflects that the Veteran's current 10 percent disability rating for right ankle degenerative joint disease adequately compensates him for his symptoms, including pain and occasional swelling. In making this determination the Board has also considered other potentially applicable diagnostic codes for the Veteran's right ankle condition; in this case diagnostic codes potentially applicable are 5270 (ankylosis of the ankle in plantar flexion), 5272 (ankylosis of the subastragalar or tarsal joint), 5273 (malunion of the os calcis or astralgus) and 5274 (astralgalectomy). However, as the Veteran does not exhibit any of these manifestations of right ankle disability, there is no possibility of an alternate and/or separate evaluation under these Diagnostic Codes. In summation, the Board cannot establish a rating for the right ankle condition in excess of 10 percent. The preponderance of the evidence is against the Veteran's claim, and there is no doubt to be resolved. 38 U.S.C. § 5107(b). Entitlement to TDIU Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the claimant's service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Although the Veteran submitted his formal claim seeking entitlement to TDIU in May 2021, he has been continually asserting that his service-connected disabilities have precluded him from securing and following substantially gainful employment for the entirety of the appeal period. Therefore, in acknowledgement of the guidance outlined in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board will review the propriety of the TDIU claim from April 18, 2013, the date that the Veteran filed his initial claim seeking service connection for a psychiatric disorder. To that end, the Board notes that from September 29, 1999, the Veteran was in receipt of a 10 percent disability rating for his right ankle condition. Thereafter, effective April 18, 2013, the Veteran has been in receipt of a 70 percent rating for major depressive disorder, resulting in a combined total evaluation of 70 percent from that date. Accordingly, for the period from April 18, 2013, the Veteran met the schedular requirements for the grant of TDIU. That being said, the Board highlights that an award of TDIU is still contingent on a finding that the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment. After a review of the record, and granting the Veteran the benefit of the doubt, the Board finds that the preponderance of the evidence supports a determination that the Veteran was precluded from securing and following substantially gainful employment as a result of his service-connected disabilities. To begin, the Board notes that the United States Court of Appeals for Veterans Claims (Court) recently promulgated additional guidance to assist in the evaluation of claims for TDIU in Ray v. Wilkie, 31 Vet. App. 58, 71 (2019). The Court stated that: "[W]e interpret the phrase "unable to secure and follow a substantially gainful occupation" in [38 C.F.R.] § 4.16(b) to have two components: one economic and one noneconomic. The economic component simply means 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. As for the noneconomic component, the Secretary himself states that 'determining eligibility for TDIU requires more than determining the presence or absence of employment producing income exceeding any particular threshold,' and 'the ultimate inquiry is instead on the individual claimant's ability to secure or follow that type of employment.'" Factors for consideration in evaluating the noneconomic component are: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with possibly relevant factors including, but not limited to, the limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Id. With regards to the economic component of the TDIU analysis, the Board refers to the May 2021 TDIU application, wherein the Veteran detailed that he was not employed during the appeal period prior to August 2019, at which point he worked in a part-time capacity for one month in a security and event hosting position. Thereafter, from February 2020 to July 2020, the Veteran indicated that he worked in a sales position. He did not report any other work history during the appeal period. According to the Veteran, in the past 12 months he earned $4,800. This salary is considered marginal. The Veteran's earned income did not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold in 2020. United States Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal Programs, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed October 14, 2021). As such, the Board finds that the Veteran satisfies the economic component of the TDIU analysis. In support of his TDIU claim, the Veteran has submitted correspondence from a Dr. H.H-G. dated in January 2014, wherein she stated that she reviewed the claims file and carried out an in-person mental status evaluation. According to Dr. H.H-G., the Veteran experienced significant psychiatric symptomatology attributable to his service-connected right ankle condition that contributed to a serious impairment in social and occupational functions, to include intermittent ability to perform activities of daily living and an inability to keep a job or earn a living. It was Dr. H.H-G.'s opinion that the Veteran's psychiatric disorder, coupled with his right ankle condition, precluded him from engage in gainful activity, as he could not sustain the stress from a competitive work environment. The Board finds this evaluation to be highly probative, as Dr. H.H-G. reviewed the claims file, carried out an in-person examination, and referred to the Veteran's medical history in support of her conclusions. Sklar, supra. In a subsequent correspondence dated in April 2021, Dr. H.H-G. reiterated her belief that the Veteran's service-connected psychiatric disorder and right ankle condition together precluded the Veteran from securing and following substantially gainful employment. Specifically, she highlighted that the Veteran's symptoms of anxiety, depression and near continuous panic, coupled with flattened effect, disturbances in motivation/mood and an inability to maintain effective relationships would prevent him from carrying out his work duties effectively. She noted the Veteran's two attempts to work in 2019 and in 2020 and viewed the Veteran's failures in these two attempts as a clear indication that his psychiatric disorder and right ankle condition significantly interfered with his ability to work. Dr. H.H-G. also noted that on the recent October 2020 examination the Veteran reported experiencing significant physical impairment due to an inability to put weight on his right foot. Once again, the Board finds this evaluation to be highly probative, as Dr. H.H-G. reviewed the claims file and referred to the Veteran's medical history in support of her conclusions. Sklar, supra. After a review of the record, and without the necessity of detailing the extensive medical record in full, the Board finds that the available evidence is at least in equipoise as to the issue of whether the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment during the appellate period, thus satisfying the noneconomic component of the TDIU analysis under Ray. Although the various VA examiners who have evaluated the severity of the Veteran's service-connected disabilities have not agreed as to the degree of impact those disabilities have had on his occupational functioning, there is a large consensus that those disabilities together significantly impair his ability to function satisfactorily in a work setting. Taken together with the highly probative evaluations of Dr. H.H-G., the Board finds that this evidence is sufficient to support a determination that the Veteran's service-connected disabilities have prevented him from securing and following substantially gainful employment. Therefore, resolving any reasonable doubt in favor of the Veteran, the Board concludes that TDIU is granted as of April 18, 2013, the effective date of the grant of service connection for major depressive disorder. As an additional matter, the Board notes that entitlement to special monthly compensation is not raised by the record, as he is not in receipt of disabilities distinct from the major depressive disorder and right ankle condition that underlie the TDIU grant. Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS FOR REMAND Entitlement to service connection for right and left knee conditions is remanded. The Board in September 2020 remanded to the AOJ the claims of entitlement to service connection for right and left knee conditions in order to secure a VA examination to determine the nature and likely etiology of the conditions. In an October 2020 VA knee examination, the chosen examiner declined to endorse a diagnosis of either a right or left knee condition on the basis of a review of the claims file as well as an in-service evaluation, which included a radiographic examination that did not reveal any abnormalities in either knee. As such, the examiner declined to set forth an opinion as to the likely etiology of the right and left knee conditions, stating only that no opinion was necessary as the Veteran did not have a current diagnosis of a right or left knee condition. The Board cannot rely on this opinion as the examiner ignored the clear directive to provide an opinion regarding the likely etiology of the right and left knee condition regardless of whether there was a current diagnosis of the condition. The requirement of a current disability is satisfied when a veteran has a disability at the time of filing a service connection claim, during the pendency of that claim, or just prior to the filing of a claim, even if the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Board does not contest the examiner's findings regarding the lack of a current diagnosis of a right or left knee condition, the fact remains that the Veteran has been diagnosed with bilateral knee osteoarthritis during the pendency of the appeal and so satisfies the first prong of a claim of service. Accordingly, remand is necessary in order to secure an addendum opinion responsive to the Board's prior queries regarding the likely etiology of the claimed right and left knee conditions; the Board's previous directives are copied in large part below. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: Schedule the Veteran for a VA knee examination by an appropriate clinician to assess the nature and likely etiology of the claimed right and left knee disabilities. The entire claims file should be provided to and reviewed by the examiner. The examiner should also elicit a history from the Veteran as to the progression of his claimed right and left knee conditions. After a review of the record, interview, and examination of the Veteran, the examiner should respond to the following, as appropriate: (a) Please clarify all disabilities affecting the Veteran's right and left knees, both currently and during the pendency of the appeal. (b) For each disability identified, the examiner should opine as to whether it is at least as likely as not (an approximate balance of positive and negative evidence) that such disability had onset in or is otherwise related to the Veteran's period of active duty service. (c) Notwithstanding the answer to the question above, the examiner should also opine as to whether it is at least as likely as not that any such disability was caused or aggravated by one or more service-connected disabilities (listed in a November 2020 rating decision), to specifically include the right ankle condition. In setting forth this opinion, the examiner is asked to address the Veteran's assertion that his right and left knee conditions were aggravated by his right ankle condition and the incongruent weight bearing that it has necessitated. The effects of an altered gait or overcompensation, if any, should be considered and discussed. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated the right and left knee conditions, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. Moreover, when setting forth this opinion, the examiner should ensure that they apply the proper standard of evaluation. Specifically, the standard for secondary aggravation is any increase in disability, as opposed to the standard of "beyond the natural progression" as noted on the examination form itself. It is essential the examiner discusses the underlying rationale of all opinions expressed, preferably citing to relevant evidence in the file supporting conclusions and/or medical literature or authority. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.