Citation Nr: 21068967 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-25 504 DATE: November 17, 2021 ORDER An effective date of August 26, 2020, for the grant of an increased rating of 20 percent for degenerative arthritis and intervertebral disc syndrome is granted. An effective date of August 26, 2020, for the grant of a 20 percent rating for radiculopathy, right lower extremity is granted. An effective date of August 26, 2020, for the grant of a 40 percent rating for radiculopathy, left lower extremity is granted. A rating in excess of 10 percent for degenerative arthritis and intervertebral disc syndrome prior to August 26, 2020 is denied. A rating in excess of 20 percent for degenerative arthritis and intervertebral disc syndrome from August 26, 2020 is denied. A rating in excess of 10 percent for radiculopathy, right lower extremity prior to August 26, 2020 is denied. From August 26, 2020, a rating in excess of 20 percent for radiculopathy, right lower extremity is denied. A 40 percent rating for radiculopathy, left lower extremity, from August 26, 2020 is granted. A compensable rating for hearing loss is denied. A rating in excess of 10 percent for right ankle, avulsion fracture and medial malleolus is denied. A rating in excess of 30 percent for bilateral plantar fasciitis is denied. A rating in excess of 10 percent for right knee patellofemoral pain syndrome is denied. FINDINGS OF FACT 1. Effective August 26, 2020, the Veteran's degenerative arthritis and intervertebral disc syndrome was productive of flexion greater than 30 degrees but not greater than 60 degrees. 2. Effective August 26, 2020, the Veteran radiculopathy, right lower extremity has been characterized by moderate incomplete paralysis. 3. Effective August 26, 2020, the Veteran radiculopathy, left lower extremity has been characterized by moderately severe incomplete paralysis. 4. Prior to August 26, 2020, the Veteran's back disability was not manifested by forward flexion less than 60 degrees; combined range of motion less 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. 5. From August 26, 2020, the Veteran's degenerative disc disease (DDD) and intervertebral disc syndrome has not manifested in forward flexion of 30 degrees or less, or favorable ankylosis of the thoracolumbar spine. 6. Prior to August 26, 2020, the Veteran radiculopathy, right lower extremity manifested mild incomplete paralysis. 7. From August 26, 2020, the Veteran's radiculopathy, right lower extremity manifested moderate incomplete paralysis. 8. From August 26, 2020, the Veteran's radiculopathy of the left lower extremity manifested moderately severe incomplete paralysis. 9. The Veteran's hearing impairment has been no worse than Level I in the right ear and Level II in the left ear. 10. Even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, his right ankle was manifested by no more than moderate limitation of motion. 11. The Veteran's bilateral pes planus has been productive of severe symptoms, to include pain on manipulation and use. 12. The Veteran's right knee disability is manifested by pain with flexion greater than 45 degrees and extension less than 10 degrees. CONCLUSIONS OF LAW 1. The criteria for an effective date of August 26, 2020 for the grant of a 20 percent rating for degenerative arthritis and intervertebral disc syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 2. The criteria for an effective date of August 26, 2020 for the grant of 20 percent rating for radiculopathy, right lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.124a; Diagnostic Code 8520. 3. The criteria for an effective date of August 26, 2020 for the grant of 20 percent rating for radiculopathy, left lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.124a; Diagnostic Code 8520. 4. The criteria for a rating in excess of 10 percent for degenerative arthritis and intervertebral disc syndrome, prior to August 26, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 5. The criteria for a rating in excess of 20 percent for degenerative arthritis and intervertebral disc syndrome, from August 26, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 6. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy prior to August 26, 2020 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.124a; Diagnostic Code 8520. 7. The criteria for a rating in excess of 20 percent rating for right lower extremity radiculopathy from August 26, 2020 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.124a; Diagnostic Code 8520. 8. The criteria for a 40 percent rating for radiculopathy, left lower extremity from August 26, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 9. The criteria for a compensable rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 10. The criteria for a rating in excess of 10 percent for right ankle, avulsion fracture and medial malleolus 10 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5271. 11. The criteria for a rating in excess of 30 percent for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5276. 12. The criteria for a rating in excess of 10 percent for right knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.59, 4.71a, Diagnostic Codes 5299-5020. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1994 to May 2013. The Veteran served in combat in Iraq and his decorations include Navy and Marine Corps Achievement Medal with combat "V" device, and the Combat Action Ribbon. The Veteran presented sworn testimony at a hearing before the undersigned in August 2020. The Board remanded this issue for additional development in September 2020. In a January 2021rating decision, the RO granted an increase of 20 percent, effective January 14, 2021 for low back disability; an increase of 20 percent rating, effective January 14, 2021 for radiculopathy, right lower extremity and service connection for radiculopathy, left lower extremity at 20 percent, effective January 14, 2021. The rating issues for radiculopathy, right lower extremity and left lower extremity became part and parcel of the lumbar spine rating because the rating schedule directs objective neurologic abnormalities of the lumbar spine to be rating separately. In the September 2020 Board decision, the Board granted an effective date of June 22, 2015. The Veteran submitted his increased rating claim, which are part and parcel of a TDIU claim on June 22, 2015. See June 22, 2015VA 21-526EZ, Fully Developed Claim; see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran met the schedular criteria for a TDIU award since June 22, 2015, the date of his claim, and he was not working at that time due to his service-connected disabilities. At the August 2020 Board hearing, the Veteran indicated that a grant of an earlier effective date of June 22, 2015, would satisfy his appeal on this issue. Therefore, this issue is not before the Board. 1. An effective date of August 26, 2020 for the grant of a 20 percent rating for the grant of a 20 percent rating for degenerative disc disease (DDD) and intervertebral disc syndrome. Generally, the effective date of an award shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. In this case, the RO assigned an effective date of January 14, 2021, for the assignment of an increased rating of 20 percent for the Veteran's back disability as that was the first date upon which a VA examiner indicate a worsening of the Veteran's back disability. As the Veteran reported in the August 2020 Board hearing that his back disability had increased in severity, the Veteran's 20 percent rating for limitation of flexion should be granted an effective date from the August 26, 2020 hearing as that was the initial date of evidence of a worsening of the condition, which was corroborated by the subsequent VA examination. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). 2. Entitlement to an effective date of August 26, 2020 for the grant of a 20 percent rating for radiculopathy right lower extremity and left lower extremity. Generally, the effective date of an award shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. In this case, in an January 2021 rating decision, the RO assigned an effective date of January 14, 2021, for the assignment of a 20 percent rating for the Veteran's radiculopathy, right lower extremity and left lower extremity as that was the first date upon which a VA examiner indicated a worsening of the Veteran's back disability. As the Veteran reported in the August 2020 Board hearing that the severity of his radiculopathy of the right lower extremity and left lower extremity had increased, the Veteran's 20 percent rating for radiculopathy, right lower and left lower extremity should be granted an effective date from the August 26, 2020 hearing as that was the initial date of evidence of a worsening of the condition, which was corroborated by the subsequent VA examination. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). 3. Entitlement to a rating in excess of 10 percent for degenerative arthritis and intervertebral disc syndrome prior to August 26, 2020. The Veteran submitted a claim for an increased rating in June 2015. See June 2015 VA 21-526EX, Fully Developed Claim. The Veteran's back condition is now rated at 10 percent disabling from June 1, 2013 and rated at 20 percent from August 26, 2020 under Diagnostic Code 5242. Under the general rating formula for diseases and injuries of the spine, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating requires that the condition be manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees;; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Higher ratings are warranted where there is ankylosis of the entire spine. The Veteran was afforded a VA examination in October 2015. The Veteran has multiple diagnoses including, lumbosacral strain, degenerative arthritis of the spine and thoracolumbar spine. Forward flexion was noted at 0 to 90 degrees and extension 0 to 5 degrees, the combined range of thoracolumbar spine was greater than 120 degrees but not greater than 235 degrees, and there was objective evidence of mild localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The Veteran reported pain, lack of endurance and significantly limited his functional ability with repeated use over time. The examiner described that in terms of range of motion forward flexion at 0 to 90 degrees and extension to 5 degrees. The Veteran did not report flare-ups of the back. The Veteran described functional loss as right sided pain and paresthesia symptoms down the right side leg only. The Veteran did not have a diagnosis of intervertebral disc syndrome. The preponderance of the evidence shows that the Veteran's back disability does not warrant a rating in excess of 10 percent prior to August 26, 2020. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca v. Brown, 8 Vet. App. 204 -7 (1995); 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran's pain causes functional impairment equivalent to the criteria for a rating in excess of 10 percent. For these reasons, the Board finds that the Veteran's disability picture is most closely approximated by the 10 percent criteria. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. 4. Entitlement to a rating in excess of 20 percent for low back disability from August 26, 2020. The Veteran was provided a post-remand VA examination for his service-connected back in January 2021. The Veteran's degenerative disc disease (DDD) diagnosis was reaffirmed, and he reported a worsening of the condition with constant low back pain varying in character by activity. The Veteran did not report flare-ups of the thoracolumbar spine; however, he described functional loss or functional impairment as an inability to run or play sports and his walking is limited. After a review of the evidence, the Board finds that the preponderance of the evidence is against a finding the Veteran's low back disability warrants a rating in excess of 20 percent. For a rating in excess of 20 percent, the evidence must establish the Veteran's low back disability is manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The Veteran exhibited forward flexion from 0 to 40 degrees and extension from 0 to 20 degrees. The Veteran reported functional loss or impairment described being unable to run, play sports and walking is limited. The Veteran did not require assistive devices. The Board notes, the examiner indicated the Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function and the Veteran did not report flare-ups. See January 2021 VA examination. In addition, there is no evidence of ankylosis of the thoracolumbar spine. Id. The VA examiner noted the Veteran has intervertebral disc syndrome with episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. See January 2021 VA Back Examination. The preponderance of the evidence shows that the Veteran's back disability does not warrant a rating in excess of 20 percent from January 14, 2021. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca v. Brown, 8 Vet. App. 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45. In light of the foregoing, even considering the Veteran's pain and corresponding functional impairment, the preponderance of the evidence shows that the Veteran's pain causes functional impairment equivalent no more than 20 percent disabling. Therefore, the Board finds that the Veteran's disability picture is most closely approximated by the 20 percent criteria from August 26, 2020. 38 C.F.R. § 4.7. The preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. 5. Entitlement to a rating in excess of 10 percent for radiculopathy, right lower extremity prior to August 26, 2020. The Veteran's radiculopathy, right lower extremity is rated 10 percent disabling, effective June 1, 2013 and at 20 percent disabling from August 26, 2020. The Veteran's radiculopathy of the right and lower extremity is rated under Diagnostic Code 8520, which provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve, 20 percent for moderate incomplete paralysis of the sciatic nerve, 40 percent for moderately severe incomplete paralysis of the sciatic nerve, and 60 percent for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A rating of 80 percent is warranted for complete paralysis of the sciatic nerve, characterized by the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. At the outset, the Board notes that the Veteran's right lower extremity has not been manifested by muscle atrophy or complete paralysis at any point during the appeal period. Therefore, entitlement to ratings of 60 and 80 percent for incomplete and complete paralysis, respectively, under Diagnostic Code 8520, are not warranted. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Analysis The Veteran was afforded a VA back examination in October 2015. The VA examiner diagnosed radiculitis, right lower extremity. The VA examiner found mild constant pain of the right lower extremity; moderate intermittent pain; mild paresthesias and/or dysesthesias and mild numbness. Overall, the examiner graded the Veteran's radiculopathy, right lower extremity as mild. The Board finds that the level of impairment described by the examiner is most analogous to mild in the right lower extremity. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has a service-connected neurological impairment associated with any other peripheral nerves. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. The Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right lower extremity radiculopathy prior to January 14, 2021. 6. Entitlement to a rating in excess of 20 percent for radiculopathy, right lower extremity from August 26, 2020. The Veteran's radiculopathy, right lower extremity is now rated at 20 percent, effective August 26, 2020 under Diagnostic Code 8520. The January 2021 VA examiner found constant pain bilaterally; pain that was moderate in the right lower extremity; paresthesias/dysesthesias moderate in the right lower extremity and numbness moderate in the right lower extremity. Overall, the examiner graded the Veteran's radiculopathy, right lower extremity as moderate in the right lower extremity. The Board finds that the level of impairment described by the examiner is most analogous to moderate in the right lower extremity. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has a service-connected neurological impairment associated with any other peripheral nerves. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for right lower extremity radiculopathy. 7. Entitlement to a rating in excess of 20 percent for left lower extremity from August 26, 2020. The Veteran contends that his service-connected radiculopathy is worse than contemplated. Both his right and left lower extremity radiculopathy is now rated at 20 percent under Diagnostic Code 8520 from August 26, 2020. Based on the evidence of record, the Board finds that a rating of 40 percent is warranted from August 26, 2020 for the Veteran's radiculopathy, left lower extremity. Subsequent to the September 2020 Board decision, the Veteran was afforded a VA examination of his back in January 2021. During the January 2021 VA examination, the Veteran was found to have radicular pain due to radiculopathy and was diagnosed with severe constant pain in the left lower extremity. The examiner described the Veteran's level of impairment as most analogous to moderate left lower extremity incomplete paralysis. In light of the above medical evidence and the Veteran's report of sharp and severe constant pain, the Board finds that the evidence from the January 2021 VA examination for the back shows that the Veteran's radiculopathy is manifested by moderately severe incomplete paralysis of the sciatic nerve. Accordingly, a 40 percent rating is warranted for left lower extremity radiculopathy. A higher rating of 60 percent is not warranted as the Veteran' left lower extremity radiculopathy has resulted in no more than moderately severe incomplete paralysis of the sciatic nerve. . 8. Entitlement to compensable rating for hearing loss. The Veteran asserts that his bilateral hearing loss, currently evaluated as noncompensable, warrants a higher evaluation. Specifically, he asserts that his hearing loss may have worsened since his most recent VA examination in October 2015. See August 2020 Hr'g Tr. The Veteran's bilateral hearing loss is rated as non- compensable under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Under Diagnostic Code 6100 the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 et. seq. Tables VI and VII as set forth following 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b). 38 C.F.R. § 4.85 (c) also provides, in substance, that Table VIa will be used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. With the criteria in mind, the Board notes, that at the January 2021 VA examination the Veteran had pure tone threshold of 5,15, 15 and 25 decibels in the right ear and pure tone thresholds of 15, 45, 50 and 60 in the left ear at 1000, 2000, 3000 and 4000 Hertz, respectively. The averages were 15 decibels in the right ear and 43 decibels in the left ear. Speech recognition ability was 96 percent in the right ear, and 84 percent in the left ear. Applying the results of the January 2021 examination to Table VI produces a finding the Veteran had Level I hearing acuity in the right and Level II in the left ear, warranting a noncompensable rating. An exceptional pattern of hearing impairment is not demonstrated. 38 C.F.R. § 4.86. As noted above, ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. On this basis, the Veteran is not entitled to a compensable rating as the preponderance of the evidence is against the claim. 9. Entitlement to a rating in excess of 10 percent for right ankle, avulsion fracture and medial malleolus 10 percent. The Veteran asserts that he is entitled to a rating in excess of 10 percent for his service-connected right ankle disability. Specifically, the Veteran testified to a worsening of his right ankle disability since his previous VA examination in October 2015. See August 2020 Hr'g Tr. The Veteran's left ankle is rated under Diagnostic Code 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. Diagnostic Code 5003 refers generally to degenerative arthritis, whereas Diagnostic Code 5271 provides ratings based on limitation of motion of the ankle. Under the former VA regulations, under 38 C.F.R. § 4.71a, Diagnostic Code 5271 provides a 10 percent rating for moderate limited ankle motion and a 20 percent rating for marked limited ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal dorsiflexion is 20 degrees. Normal plantar flexion is 45 degrees. 38 C.F.R. § 4.71, Plate II. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 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 (2016); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The minimum compensable rating has been assigned in this case. The words "moderate" and "marked" as used in the various Diagnostic Codes were not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "marked" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Pursuant to the revised regulations, effective February 7, 2021, under 38 C.F.R. § 4.71a, Diagnostic Code 5271 now clarifies that a 20 percent rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) and a 10 percent rating is warranted for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). No further changes were made to Diagnostic Codes 5270, 5272, 5273, or 5274 under the revised regulations. At the January 2021VA examination, the Veteran did not report flare-ups of the right ankle. Right ankle plantar flexion was noted to 45 degrees and dorsiflexion was noted to 10 degrees. Pain was noted on the examination that caused functional loss. Functional loss was described as being unable to run and has problems with stairs and prolonged standing. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion after. There was positive pain with passive range of motion. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There is not objective evidence of crepitus. The Veteran's muscle strength was normal, there was no evidence of muscle atrophy, nor was there right ankle atrophy. Additionally, the Veteran does not use any assistive devices as normal mode of locomotion. Based on the VA examination, the probative evidence of record does not show marked limitation of motion of the right ankle. The Board finds that the right ankle did not more nearly approximate the criteria for a 20 percent rating under Diagnostic Code 5271, even when considering pain and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45. With regard to other potentially applicable Diagnostic Codes, the Veteran's limitation was not more closely described as ankylosis or less than 30 degrees of plantar flexion. As he is able to move his ankle, by definition he does not have ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Additionally, the Veteran's disability may not be rated by analogy to Diagnostic Codes 5272, 5273, and 5274 because he did not have ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or an astragalectomy. The Board finds that the most probative evidence of record does not support a disability evaluation in excess of 10 percent for the Veteran's right ankle disability. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. 10. Entitlement a rating in excess of 30 percent for bilateral plantar fasciitis. The Veteran's bilateral pes planus is rated at 30 percent from June 22, 2015 under Diagnostic Code 5276. Under Diagnostic Code 5276, a 10 percent rating is warranted for moderate flatfeet (bilateral or unilateral) with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. Id. A severe flatfoot disability, manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, warrants a 20 percent rating if unilateral and a 30 percent rating if bilateral. Id. A pronounced flatfoot disability, manifested by 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, warrants a 30 percent rating if unilateral and a 50 percent rating, the maximum rating available under this diagnostic code, if bilateral. Id. Changes to Musculoskeletal Ratings Criteria Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). At the August 2020 Board hearing, the Veteran testified that his bilateral plantar fasciitis had worsened that his foot disability had worsened since his previous examination in October 2015. The Veteran was provided a post remand VA examination in January 2021. At the January 2020 VA examination, the Veteran reported he has burning foot pain in the foot, which is constant, and stated his foot swells as well. He reported having surgery to remove "dead tissue" which provided relief for a year but the pain returned. The Veteran did not report flare-ups. The Veteran did report functional loss described as being unable to stand for long periods of time and unable to do sports. Additionally, the Veteran has right sided synovitis with copious scar tissue identified at surgery. The examiner indicated it is moderate in severity and affected the right side. Additionally, oit was determined the Veteran's foot condition chronically comprises weight bearing. The Veteran did not require arch support, custom orthotic inserts or shoe modifications. The Veteran's right foot has functional loss and limitation of motion described as weakened movement, excess fatigability, pain on movement, pain on weight-bearing, swelling, disturbance of locomotion and interference with standing. The Veteran had pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the right foot is used repeatedly over a period of time. The examiner noted that plantar fasciitis was not identified at the January 2021 VA examination. However, the Veteran was tender across dorsal right lateral metatarsals. The evidence of record does not reflect that the Veteran's bilateral foot condition was, at any point during the appellate period, manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achilles on manipulation, including after flare-ups or on repeated use. See 38 C.F.R. § 4.71a, Diagnostic Code 5276; see also 38 C.F.R. §§ 4.40, 4.45, DeLuca, 8 Vet. App. at 206-07 . Review of the findings on the relevant examinations does not show equivalent symptoms. Thus, the criteria for a higher 50 percent rating under Diagnostic Code 5276 have not been met or more nearly approximated at any point during the appellate period. Furthermore, there is no evidence in either VA treatment records or examination reports suggesting that the Veteran has weak foot, claw foot (pes cavus), metatarsalgia (Morton's disease), hallux rigidus, or malunion or nonunion of the tarsal or metatarsal bones at any point during the pendency of this claim. Thus, Diagnostic Codes 5277, 5278, 5279, 5281, and 5283, which pertain to these conditions, respectively, do not apply. See 38 C.F.R. § 4.71a. There is no evidence in either VA treatment records or examination reports that the Veteran has hammer toes, or more specifically that he has hammer toe of all toes on either foot. Accordingly, there is no basis for assignment of a separate, compensable rating for hammer toes, because, under Diagnostic Code 5282, the hammer toe deformity must affect all toes to warrant a compensable evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5282. Based on the results of the Veteran's July 2021 January 2020 VA examination, the Board finds that the disability picture associated with the Veteran's service-connected bilateral plantar fasciitis most closely approximates the criteria for a 30 percent disability rating under Diagnostic Code 5276. While the Veteran's bilateral foot disability has been shown to have symptoms indicative of a severe acquired flatfoot disorder, it has not been shown to have symptoms indicative of a pronounced bilateral flatfoot disorder. The Veteran does not have marked pronation or extreme tenderness of the plantar surfaces. Additionally, his bilateral foot disability has not been shown to have marked inward displacement, or severe spasms of the tendo achillis on manipulation, which are symptoms that would warrant a higher 50 percent disability rating. Based on a thorough review of all of the evidence of record, including the VA examination report, and the Veteran's lay statements, the Board finds that a 30 percent disability rating is the appropriate assignment for the Veteran's service-connected bilateral pes planus. 11. Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome. The Veteran asserts that his right knee disability warrants a rating in excess of the current 10 percent disability rating. Specifically, the Veteran testified that his right knee disability had worsened since his last VA examination in October 2015. See August 2020 Hr'g Tr. The Veteran's right knee patellofemoral is rated pursuant to Diagnostic Codes 5260-5003. Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint. VAOPGCPREC 09-04. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the knee is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension is limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II. Under the changes to the musculoskeletal ratings criteria, Diagnostic Code 5257 knee impairment, patellar instability is rated 10 percent; 20 percent is warranted for moderate instability and 30 percent is warranted for severe instability. The Veteran was afforded a post remand VA examination in January 2021. Range of motion testing show flexion from 0 to 120 degrees and extension to 0, pain noted on the examination but does not result in or cause functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional functional loss or range of motion. There was tenderness or pain to palpation for patella and posterior. The Veteran reported flare-ups with changes to the weather. He described functional loss as his knee being impacted by long drives and heavy lifting. Muscle strength testing and joint stability tests were normal. There was evidence of crepitus. The examiner noted the Veteran had a reported recurrent swelling in the past year but none now. Upon testing, no ankylosis, instability or subluxation was found in the knee. There was no degenerative or traumatic arthritis documented. The Board observes, the VA examiner noted the Veteran's complaints of his right knee being impacted by long drives and heavy lifting; however, the objective medical evidence of record is of greater probative value as to the Veteran's level of impairment. Even considering his subjective complaints of pain and other symptoms described in DeLuca, limitation of motion of the right knee has not been shown such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). The Board finds that the evidence does not support a finding that the Veteran's right knee disability more closely approximates a 20 percent rating. In sum, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the right knee due to limitation of motion of the right knee. While the Board acknowledges the reports of the Veteran that his right knee limitation of motion causes him to experience pain, providing the basis for the 10 percent evaluation, the Board has taken that into account in its consideration of the range of motion of the Veteran's right knee, including functional loss during periods of flare-up. The rating schedule does not require a separate rating for pain itself. Accordingly, a greater rating is not warranted based on functional impairment due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a higher rating for the time period in question. There is no evidence of ankylosis of the right knee, dislocation of semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, genu recurvatum. Accordingly, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for consideration. (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for right knee patellofemoral under Diagnostic Codes 5260 or 5261. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jacquelynn M. Jordan, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.