Citation Nr: 21070990 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-39 410 DATE: November 29, 2021 ORDER Entitlement to a rating in excess of 20 percent for a right ankle disability, to include on an extraschedular basis, is denied. Entitlement to a rating in excess of 20 percent for a left ankle disability, to include on an extraschedular basis, is denied. Entitlement to special monthly compensation (SMC) based on loss of use of feet is denied. FINDINGS OF FACT 1. From July 30, 2013, the right ankle disability has been manifested by pain, swelling, instability and limited motion without evidence of ankylosis or involvement of multiple joints as indicated by radiographic examination; moreover, the symptoms of the right ankle disability are adequately described by the established schedular criteria, and the disability does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards; in addition, it was not factually ascertainable prior to July 30, 2013 that the severity of the right ankle condition had worsened to the extent that the Veteran exhibited marked limitation of motion. 2. For the entirety of the appeal the left ankle disability has been manifested by pain, swelling, instability and limited motion without evidence of ankylosis or involvement of multiple joints as indicated by radiographic examination; moreover, the symptoms of the left ankle disability are adequately described by the established schedular criteria, and the disability does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 3. The Veteran does not have the anatomical loss or loss of use of both feet or one hand and one foot. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 2. The criteria for a rating in excess of 20 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271. 3. The criteria for the award of SMC at the (k) level for the loss of use of a foot, or at the (l) level for loss of use of both feet, or a foot and a hand, have not been met. 38 U.S.C. §§ 1114, 5107, 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1968 to June 1974. By way of history, the issues of entitlement to increased ratings for bilateral ankle disabilities were before the Board in September 2019, whereupon the Board denied ratings in excess of 20 percent. Following the Veteran's appeal, the U.S. Court of Appeals for Veterans Claims (Court) in May 2020 issued a Joint Motion for Partial Remand (JMPR) in which the Court vacated the Board's September 2019 decision as it pertained to the increased ratings claims and remanded the matters back to the Board. Upon receipt of the remanded issues, the Board further remanded to the Agency of Original Jurisdiction (AOJ) the increased rating claims as well as an additional claim of entitlement to SMC for loss of the use of foot. Those remand instructions directed the AOJ to procure a determination from the Director of Compensation and Pension services (Director) as to the possibility that an extraschedular rating was warranted for the bilateral ankle disabilities. Following the AOJ's receipt of the Director's determination, the AOJ issued a September 2021 supplemental statement of the case continuing the denial of the increased rating claims and newly denying the issue of entitlement to SMC for loss of the use of foot. The case has now been returned to the Board for its adjudication. The Board has considered whether a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the Veteran during the pendency of this appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Currently, the Veteran is in receipt of TDIU effective July 30, 2013, which is the date that the Veteran submitted an informal claim seeking increased ratings for his right and left ankle disabilities. Furthermore, the Board notes that TDIU was awarded for the period prior to August 17, 2016 on an extraschedular basis in a November 2020 rating decision promulgated by the AOJ. Accordingly, the Board finds that any discussion of whether an earlier effective date of the grant of TDIU is warranted is moot, as there is no possibility of an award of an earlier effective date in these circumstances. Additionally, as TDIU was awarded from July 30, 2013 on the grounds that the Veteran's separately assigned disability ratings (other than the 10 percent rating for tinnitus) all arise from a common etiology, the Veteran is not in receipt of disabilities distinct from those that make up the combined disability rating with cumulative disability ratings that total at least 60 percent; therefore, the issue of entitlement TDIU is moot from that day. Bradley v. Peake, 22 Vet. App. 280 (2008). In conclusion, as there is no additional benefit that can be awarded on account of the impact that the Veteran's service-connected disabilities have on his occupational functioning from July 30, 2013, the Board finds that any consideration of entitlement to TDIU is moot. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Entitlement to Increased Ratings for Right and Left Ankle Disabilities The Veteran is service connected for right and left ankle disabilities, which are both rated as 20 percent disabling for the entirety of the appeal period. As the Veteran submitted his informal claim seeking entitlement to increased rating for both disabilities on July 30, 2013, the relevant time period of evaluation is up to one year prior to the filed claim, that is, from July 30, 2012. To that end, the Board notes that any increase in severity must have become "factually ascertainable" within this one-year period prior to the date of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). The Board also highlights that as the 20 percent rating for the left ankle disability was awarded prior to the one-year look back period, that is, July 30, 2012, the Board need only consider the propriety of the 20 percent rating for the right ankle disability during the one-year period, since there is no further benefit that can be awarded to the Veteran as it pertains to the left ankle disability during this time period (other than a separate rating under a different diagnostic code or an extraschedular rating, the merits of which are addressed below). The Veteran seeks an evaluation in excess of the assigned 20 percent ratings for the entirety of the appeal period. As the evidence in support of both claims is largely identical, they propriety of the ratings for both claims will be evaluated together. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Any of the diagnostic codes applicable to the bilateral ankle disabilities on appeal that were altered by these amendments will be discussed in due course below. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5100(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. For the entirety of the appeal period, the Veteran's right ankle disability has been rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271, while the left ankle disability has been rated pursuant to Diagnostic Code 5010-5271. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that the symptomatology of the left ankle disability was manifested as limited motion of the ankle pursuant to Diagnostic Code 5271, with Diagnostic Code 5010 representing traumatic arthritis generally. Diagnostic Code 5010 provides that traumatic arthritis will be rated as analogous to degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, where limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Furthermore, a 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010. The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id., Note 1. In addition, the 20 percent and 10 percent ratings based on x-ray findings will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024. Id., Note 2. Before evaluating the propriety of the Veteran's disability rating for the right knee osteoarthritis, the Board highlights that the diagnostic code for evaluating musculoskeletal conditions under 5010 was revised in the February 7, 2021 amendments to specify that this evaluation is to be used solely for the evaluation of post-traumatic arthritis as opposed to degenerative arthritis. Restricting the definition of Diagnostic Code 5010 ultimately serves only to preclude the assignment of a 10 percent rating pursuant to Diagnostic Code 5003 where there is noncompensable limitation of motion. That being said, as stated previously, the version of the law or regulation most favorable to the appellant applies here, and only the former criteria can be applied for the period prior to the effective date of the new criteria. As such, the Board may consider the applicability of a 10 percent rating pursuant to Diagnostic Code 5003 as per Diagnostic 5010 despite the recent amendments, as the ratings at issue are effective prior to the date of the amendments. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. Diagnostic Codes 5262 and 5270 through 5274 set forth the relevant provisions for disabilities of the ankle. See 38 C.F.R. § 4.71a. Diagnostic Code 5262 provides that impairment of the tibia and fibula characterized by malunion with slight knee or ankle disability warrants a 10 percent evaluation, malunion with moderate knee or ankle disability warrants a 20 percent evaluation, and malunion with marked knee or ankle disability warrants a 30 percent rating. Impairment of the tibia and fibula manifested by nonunion with loose motion, requiring a brace, warrants a maximum 40 percent rating. Id. As amended effective February 7, 2021, Diagnostic Code 5262 continues to note that impairment of the tibia and fibula with nonunion with loose motion requiring a brace warranted a 40 percent rating. For malunion, the condition should be evaluated under Diagnostic Codes 5270 or 5271. For impairment of the tibia and fibula with medial tibial stress syndrome or shin splints ratings a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted for when treatment of no less than 12 consecutive months and unresponsive to either shoe orthotics or other conservative treatment, one or both extremities. A 20 percent is warranted for treatment of no less than 12 consecutive months and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent is warranted for treatment of no less than 12 consecutive months and unresponsive to surgery and either shoe orthotics or other conservative treatment, both extremities. Diagnostic Code 5270 governs ankylosis of the ankle and provides a 20 percent rating for ankylosis in plantar flexion, less than 30 degrees; a 30 percent rating for ankylosis in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees; and a 40 percent rating for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. Id. Diagnostic Code 5271 governs limited motion of the ankle, providing respective ratings of 10 and 20 percent for moderate or marked limited motion of the ankle. Id. Effective February 7, 2021, Diagnostic Code 5271 was amended to clarify that 10 percent is warranted for moderate limited motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) and a 20 percent evaluation is warranted for marked limited motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Diagnostic Code 5272 governs ankylosis of the subastragalar or tarsal joint, providing a 10 percent rating for a good weight-bearing position, and a 20 percent rating for a poor weight-bearing position. Id. Diagnostic Code 5273 governs the malunion of the os calcis or astragalus, providing a 10 percent rating for a moderate deformity, and a 20 percent rating for a marked deformity. Id. Diagnostic Code 5274 provides a 20 percent rating for an astragalectomy. Id. The words slight, moderate, and severe as used in the various diagnostic codes are 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. Additionally, use of terminology such as "severe" by VA examiners and others, although an element 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. Normal ankle dorsiflexion is from 0 to 20 degrees, and normal ankle plantar flexion is from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. In October 2013, along with his formal claim, he submitted a degenerative arthritis disability benefits questionnaire (DBQ) prepared by his private doctor, a J.H., and an accompanying statement also prepared by Dr. J.H. and dated in August 2013 indicating that he experienced chronic ankle pain bilaterally with difficulty standing and walking. In the August 2013 statement, Dr. J.H. specified that the Veteran's pain was at an 8 out of 10, and that he exhibited difficulty ascending and descending stairs and bending in a squatting position. A radiographic examination at the time of the August 2013 statement indicated advanced degenerative joint disease with collapsed foot as well as osteophytic proliferation and soft tissue swelling of the ankle and foot. An in-person evaluation at the time of the August 2013 statement revealed chronic swelling in the ankles, inability to bear weight unilaterally, a fully compensated collapsed arch, and an abnormal gait with a pronounced limp. The October 2013 DBQ merely reiterated the findings of the August 2013 correspondence. In an October 2013 statement in support of claim, the Veteran indicated that he could not ride a bike, walk more than 10 yards at a time or use a walker, and he related that he had to stop when walking anywhere from time to time due to pain. The severity of the bilateral ankle disabilities was first evaluated by a VA examiner in an May 2014 ankle examination, during which the Veteran reported experiencing constant chronic pain in the bilateral ankles as well as frequent weakness and twisting in the ankles. He did not endorse experiencing any flare-ups of additional ankle symptomatology. Right ankle flexion was reduced to 15 degrees while left ankle left ankle flexion was reduced to 10 degrees. Dorsiflexion was reduced to 5 degrees bilaterally. In addition, the examiner noted that the Veteran exhibited pain at all degrees of movement. After repetitive-use testing, there was no additional loss of range of motion; furthermore, the examiner estimated that the Veteran would not experience any additional functional loss after repeated use of the ankles. The examiner did note the following impairments during the evaluation: less movement than usual, weakened movement, excess fatigability, pain on movement, swelling, instability of station, and disturbance of locomotion. No tenderness, instability or ankylosis were indicated by testing but the examiner did find evidence of reduced muscle strength bilaterally. The examiner also noted that the Veteran utilized both an ankle brace and a cane to assist with ambulation. In summation, the examiner found that the bilateral ankle disabilities would contribute to impairment of occupational functioning in the form of pain, decreased mobility, and difficulty with standing, walking, and stairs. In a January 2015 statement, the Veteran asserted that he could not walk for more than five or ten minutes without experiencing significant ankle pain. He also related that he could not use a stationary bike, walk on a treadmill or stepper. According to the Veteran he wears boots exclusively in order to assist in stabilization of his ankles as they are so weak that he feels that he could twist an ankle by walking on inclines, decline or steps. During a May 2016 hearing before a decision review officer at the AOJ the Veteran reiterated that he experienced severe pain when walking on inclines or declines to especially include while using stairs. He detailed that his ankles swelled regularly and that he was limited in his ability to turn or stand for more than 30 minutes at a time. He also related that he was limited to walking no more than 15 yards without taking a rest. According to the Veteran, he was prescribed orthotics but stopped wearing them because they were causing sores on his feet. He stated that instead he wore boots to improve his ankle stability. The severity of the bilateral ankle disabilities was next evaluated by a VA examiner in an June 2016 examination, during which the Veteran asserted that he was experiencing increased pain, weakness and recurrent strains in his bilateral ankles relative to the date of his last examination. He reiterated that he experienced considerable difficulty on inclines and declines and that he was severely restricted in his ability to twist his ankles. Although he did not endorse experiencing flare-ups of additional ankle symptomatology, he did note that the bilateral ankle disabilities resulted in functional impairment in the form of problems with weight-bearing activity, prolonged standing or ambulation. Right ankle flexion on the June 2016 examination was reduced to 15 degrees while left ankle left ankle flexion was reduced to 10 degrees. Dorsiflexion was reduced to 5 degrees bilaterally. In addition, the examiner noted that the Veteran exhibited pain at all degrees of movement as well as with weight-bearing, and moderate tenderness and swelling in both ankles. After repetitive-use testing, there was no additional loss of range of motion, but the examiner did note that the Veteran exhibited increased pain, fatigue, weakness, lack of endurance, and incoordination after repeated use of the ankles. Furthermore, the examiner estimated that the Veteran would not experience any additional loss of range of motion after repeated use of the ankles. The examiner did note the following impairments during the evaluation: swelling, deformity, instability of station, disturbance of locomotion, interference with sitting or standing, weakness, and excess fatigability. No ankylosis was indicated by testing, but the examiner did find evidence of reduced muscle strength bilaterally. In addition, instability testing was positive for some degree of laxity. The examiner also noted that the Veteran utilized an ankle brace and a cane to assist with ambulation and wore boots as well to assist with instability. Radiographic testing dated in July 2014 showed mild degenerative changes in the left ankle and a plantar calcaneal spur in the right ankle. In summation, the examiner found that the bilateral ankle disabilities would contribute to impairment of occupational functioning in the form of precluding any type of weight-bearing work due to pain and weakness and a moderate degree of impairment of sedentary work due to chronic pain. In a June 2018 correspondence, a Dr. E.R., who identified herself as the Veteran's treating physician since 1991, related that the Veteran's multiple ankle sprains since leaving service have greatly restricted his ambulation and standing, which in turn led to his decreased physical conditioning and generally poor daily functioning. The severity of the bilateral ankle disabilities was most recently evaluated by a VA examiner in an July 2018 examination, during which the Veteran asserted that he was experiencing increased pain, weakness and recurrent strains in his bilateral ankles relative to the date of his last examination. He also stated that his podiatrist had diagnosed him with severe degenerative joint disease bilaterally per imaging. Although he did not endorse experiencing flare-ups of additional ankle symptomatology, he related that he had difficulty with any weight-bearing activity or work due to pain and weakness. Right ankle flexion on the July 2018 examination was reduced to 5 degrees, while left ankle flexion was reduced to 4 degrees. Dorsiflexion was reduced to 8 degrees in the right ankle and reduced to 7 degrees in the left ankle. In addition, the examiner noted that the Veteran exhibited pain at all degrees of movement as well as with weight-bearing, and moderate tenderness and crepitus in both ankles. After repetitive-use testing, there was no additional loss of range of motion, but the examiner did note that the Veteran exhibited increased pain, fatigue, weakness, lack of endurance, and incoordination after repeated use of the ankles. Furthermore, the examiner estimated that the Veteran would not experience any additional loss of range of motion after repeated use of the ankles. The examiner did note the following impairments during the evaluation: swelling, deformity, instability of station, disturbance of locomotion, interference with sitting or standing, weakness, and excess fatigability. No ankylosis was indicated by testing but the examiner did find evidence of reduced muscle strength bilaterally. In addition, instability testing was positive for some degree of laxity. The examiner also noted that the Veteran utilized an ankle brace and a cane to assist with ambulation as well as a wheelchair on occasion and wore boots exclusively to assist with instability. Radiographic testing showed severe degenerative joint disease bilaterally. In summation, the examiner found that the bilateral ankle disabilities would contribute to impairment of occupational functioning in the form of precluding any type of weight-bearing work due to pain and weakness. In a June 2021 correspondence, the Veteran asserted that he experienced significant pain whenever he placed any weight on his feet. According to the Veteran, his ankles are extremely stiff, and he has very little mobility, even inside his own home. He stated that he uses a wheelchair or a scooter whenever he leaves the house to go somewhere that he has to walk any distance further than 15 yards. He further related that when he walked his knees would swell up, and he gets very exhausted after any excursion outside of his home. He detailed that he wore braces and compression socks on his feet to reduce swelling but that these only managed to keep his swelling down to the point that he could walk a few meters at a time. Ultimately, he contended that his ankles were functionally useless, and that he had contemplated fusion surgery as suggested by his doctors, which would cause them to be unable to bear any weight (but would reduce his symptoms of pain and swelling). A review of post-service VA medical records reflects that the Veteran has been receiving treatment for bilateral ankle disabilities for the entirety of the appeal period. A July 2014 outpatient note shows that the Veteran complained of bilateral ankle pain with reduced range of motion. The impression at that time was chronic but stable arthropathy. A December 2014 X-ray examination revealed degenerative changes of both ankles. A June 2015 outpatient note indicates that the Veteran was experiencing constant bilateral ankle pain, the right worse than the right. According to him, standing and walking on inclines as well as going up and down steps precipitated his symptomatology. He also reported that he used a cane and wore boots for improved stability and ankle support. A series of records dating from June and July 2016 detail the Veteran's course of treatment when he sought care for swelling in his ankle and was taken to the emergency room. Ultimately, the impression was edema. Subsequent treatment records show that the Veteran has continued to complain of bilateral ankle pain and difficulties with ambulation. A March 2018 outpatient note reflects that the Veteran was offered ankle fusion surgery but denied it. Upon consideration of the evidence, the Board finds that a rating in excess of 20 percent for either the right or left ankle disability is not warranted at any point during the appeal period. At the outset, the Board notes that the 20 percent ratings currently assigned are the maximum available evaluation for the ankle disorders under Diagnostic Code 5271. Before delving into whether a greater rating is warranted on an extraschedular basis, however, the Board must contend with the Veteran's contention that a higher or separate rating is warranted for the right and/or left ankle disability under one of the other potentially applicable Diagnostic Codes from 5262 and 5270 to 5274. To that end, the Board highlights that there is no evidence that the Veteran has any impairment of the tibia and fibula or malunion of the os calcic or astragalus, corresponding to Diagnostic Codes 5262 and 5273, respectively; moreover, the Veteran has specifically refused to undergo any fusion surgery or astragalectomy, as would be necessary for a separate rating under Diagnostic Code 5274. As for ankylosis of the ankle, subastragalar or tarsal joint, corresponding to Diagnostic Codes 5270 and 5272, respectively, the Board first notes that no ankylosis has ever been documented on any VA examination or during any evaluation of the ankles during the appeal period. Although the Veteran has specifically asserted that he experiences "functional" ankylosis of the bilateral ankles, there is no indication from the available evidence that he is entirely unable to move either ankle or that his symptomatology is of such severity as to equate to ankylosis in plantar flexion between 30 degrees and 40 degrees, as would be necessary to warrant a 30 percent rating under the Diagnostic Code 5270. Thus, the Veteran, by definition, does not suffer from ankylosis. Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007) (ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). Accordingly, an increased evaluation for ankylosis is not warranted. The Board has alternatively considered whether a higher rating is warranted for either the right or left ankle condition under the provisions of Diagnostic Code 5010. However, regardless of whether the Board applies the criteria in place prior to the February 7, 2021 amendments, an evaluation for degenerative arthritis of the right or left ankle still only allows for a 10 percent rating under Diagnostic Code 5010 as analogous to Diagnostic Code 5003. Specifically, a 20 percent rating would require x-ray evidence of arthritis with involvement of 2 or more major joints and is not reflected in the record. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010. The Board has reviewed the Veteran's lay testimony and the VA treatment records in the claims file, but this evidence does not tend to show that the symptoms of the right or left ankle condition warranted a rating in excess of 20 percent under any of the applicable criteria on a schedular basis. As stated, for any additional functional loss to warrant a higher rating, that loss must rise to the level of the more severe symptomatology represented by the ratings in excess of those assigned, which has not been shown. Furthermore, the Board notes that the Veteran repeatedly denied experiencing flare-ups of additional pain on the multiple VA examinations of record. Indeed, on those same VA examinations the examiners noted that the Veteran would not exhibit any additional limitation of motion following repeated use of the bilateral ankles, adding support for a determination that the Veteran's currently assigned ratings adequately compensate him for the impairment attributable to his bilateral ankle conditions. Accordingly, the Board does not find that the Veteran's symptoms during a flare-up or following repeated use would be so significant as to equate to ankylosis in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees, as would be necessary for an evaluation in excess of the currently assigned ratings or which would warrant a separate rating. Sharp, supra; Correia, supra. The Board acknowledges the Veteran's statements regarding the pain he experiences in his bilateral ankles. However, painful motion as well as additional impairment of function is contemplated and compensated by the 20 percent ratings that are currently assigned. DeLuca, supra. Therefore, the Board finds that the assigned 20 percent ratings for the right and left ankle disabilities from July 30, 2013 contemplate the impaired motion exhibited by the Veteran during the appeal period. An evaluation in excess of those 20 percent ratings on a schedular basis is not warranted for limitation of motion of the right or left ankle at any point during the appeal period. In addition, there is no objective medical evidence to suggest that it was factually ascertainable that the severity of the Veteran's right ankle disability rose to the level of marked limitation of motion at any point during the year-long period immediately preceding the date of his informal claim seeking an increased rating for the bilateral ankle disabilities, that is, from July 30, 2012 to July 29, 2013. As such, an effective date prior to July 30, 2013 is not warranted for the assignment of a 20 percent rating for the right ankle disability. As directed by the Court, and further contended by the Veteran, the Board must also consider whether a higher rating is warranted for the right and/or left ankle disabilities on an extraschedular basis. The Court has set out a three-part test, based on the language of § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board may not assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Board in its prior July 2021 remand referred the question of whether the Veteran was entitled to an extraschedular evaluation for the right and/or left ankle disability to the Director for a recommendation as to whether an extraschedular evaluation was warranted. In an August 2021 memorandum of record, the regional office director at the AOJ recommended against the assignment of an extraschedular evaluation for the right and left ankle disabilities on the grounds that no unusual or exceptional disability pattern was demonstrated by the record. In a subsequent September 2021 memorandum of record, the Director also recommended against the assignment of an extraschedular rating for the right and left ankle disabilities on the grounds that the currently assigned 20 percent ratings corresponded to the marked limitation of motion exhibited by the Veteran on repeated examinations and reflected in his own statements regarding the impairment he experiences as attributable to his bilateral ankle disabilities. The Director also acknowledged that the Veteran was in receipt of TDIU for the entirety of the appeal period but did not find that the impairment stemming from the bilateral ankle disabilities was so unusual as to render impractical the application of the regular rating criteria. Upon review of the record, the Board agrees with the Director's recommendation that an extraschedular evaluation of either the right or left ankle disability is not warranted. Although the Director's recommendation in this instance is not dispositive, the Board similarly finds that the impairment stemming from the bilateral ankle disabilities was not so unusual as to render impractical the application of the regular rating criteria. Specifically, while the Veteran has complained of experiencing a significant degree of bilateral ankle pain as well as stiffness, swelling, and instability, there is no indication from the record that this symptomatology has restricted his range of motion or functional abilities to the point that the schedular criteria are inadequate to describe the severity of the disability. In his most recent correspondence date in June 2021, the Veteran detailed that he experienced significant impairment of ambulation due to pain and swelling of his ankles and was often restricted to use of a wheelchair to carry out functions at home. However, as stated there is no indication that the Veteran is either literally or functionally unable to move his ankles, as would be necessary for an appropriate characterization of his ankles as being ankylosed. Indeed, the Veteran himself stated that he has avoided any type of fusion surgery in order to maintain movement and functioning in his bilateral ankles, despite the pain he experiences. Therefore, the Board finds that the Veteran still experiences marked limitation of motion as opposed to no mobility at all, thus corresponding to the currently assigned 20 percent rating for the entirety of the appeal. The Veteran does not satisfy the first prong of the Thun analysis. The Board does recognize that the Veteran is in receipt of TDIU for the entirety of the appeal period, and so there is no question that his bilateral ankle disabilities contribute to a certain degree of impairment of occupational functioning. However, the grant of TDIU was predicated on the combined impact of the bilateral ankle disabilities together with the Veteran's entirely separate acquired psychiatric disorder. There is no indication from the record that the Veteran was entirely precluded from securing and following substantially gainful employment as due to his bilateral ankle disabilities alone. In the Board's estimation, the weight of the evidence of record, including the findings of the multiple VA examiners who have evaluated the severity of the bilateral ankle disabilities as well as the impairment described by the Veteran, does not establish that the Veteran manifests marked interference with employment solely due to the service-connected bilateral ankle disabilities. The Veteran does not satisfy the second prong of the Thun analysis. In conclusion, the Veteran is in receipt of the highest schedular evaluation available for limitation of motion of the service-connected right and left ankle disabilities, and the Board further finds that the manifestations of the disability are fully contemplated by the schedular rating criteria. The evidence also does not support the proposition that the disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Accordingly, a rating in excess of 20 percent for either the right or left ankle disability is not warranted on this basis. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to SMC Based on Loss of Use of Feet The Veteran seeks entitlement to SMC based on the loss of use of his right and left ankles. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(a)(2). The loss of use of the foot is held to exist when no effective function (including balance, propulsion, etc.) remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a prosthesis. 38 C.F.R. §§ 3.350(a)(2), 4.63. Examples constituting loss of use of a foot include extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity or shortening of the lower extremity of 3 1/2 inches or more. Additionally, neurological manifestations may also constitute loss of use of a foot, including complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Id. If loss of use of the hand or foot is found to exist, a veteran is entitled to SMC in addition to the basic rate of compensation otherwise payable on the basis of degree of disability. 38 C.F.R. § 3.350(a); see also 38 C.F.R. § 4.71a, Diagnostic Codes 5125, 5167. The relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. 38 C.F.R. §§ 3.350(a)(2), 4.63. The Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. 38 C.F.R. § 4.40. For purposes of SMC, loss of use must be caused by service-connected disabilities. In this case, the Board has already determined the Veteran does not exhibit ankylosis of the right or left ankle nor impairment analogous thereto. Further, despite the contentions of his representative in a June 2021 correspondence, the record does not reflect that the impairment of the right or left ankle disability is such that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance. Specifically, without reiterating the evidence detailed above, there is copious documentation showing that the Veteran still retains some functional use of his feet despite the symptomatology reflected in the available medical evidence and even in consideration of his lay statements as to the severity of the impairment stemming from his bilateral ankle disabilities. The Veteran has presented testimony indicating that he does still ambulate and is able to carry out some functional activities, both in his home and outside it. The Board acknowledges the Veteran's competent and credible contentions regarding the difficulty he experiences with ambulation, to include his contentions in his June 2021 statement. However, the physical examination findings discussed above in evaluating the appropriate schedular rating for the right and left ankle disabilities are not consistent with loss of use. Furthermore, the Board has already evaluated and rejected the Veteran's contention that he is entitled to an extraschedular evaluation of the right and left ankle disabilities, on the grounds that the severity of the bilateral ankle disabilities are both contemplated by the currently assigned 20 percent ratings for the entirety of the appeal period. The Board has considered that the Veteran's daily function, including ambulation and self-care, are significantly limited by physical disability, but the evidence demonstrates that nonservice-connected disabilities, such as a low back condition and bilateral pes planus, are contributing to the functional impairment as well. In light of the foregoing, the Board finds that SMC based upon loss of use of the right and left ankles under 38 U.S.C. § 1114(k) is not warranted. Furthermore, as the Board has herein found that the Veteran does not have loss of use of both feet or loss of use of a hand and a foot, a higher SMC for loss of use of both feet or of one hand and one foot under 38 U.S.C. § 1114(l) is not warranted. Therefore, a higher SMC under 38 U.S.C. § 1114(o) is also not warranted and the Board will therefore not review whether the appellant is entitled to a "special aid and attendance" pursuant to 38 U.S.C. § 1114(r), as this higher degree of aid and attendance allowance requires that the appellant was receiving the maximum rate under 38 U.S.C. § 1114(o), which is not the case here. See 38 C.F.R. § 3.350(h). Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). 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.