Citation Nr: 21075563 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-32 956 DATE: December 20, 2021 ORDER The appeal as to the issue of entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy is dismissed. The appeal as to the issue of entitlement to a disability rating in excess of 10 percent for GERD is dismissed. The appeal as to the issue of entitlement to service connection for a gastric ulcer is dismissed. The appeal as to the issue of entitlement to service connection for esophagus/throat ulcers is dismissed. The appeal as to the issue of entitlement to a disability rating in excess of 20 percent prior to November 14, 2019, 100 percent from November 14, 2019 to May 31, 2020, and 20 percent from June 1, 2020 onward for a low back disability is dismissed. The appeal as to the issue of entitlement to a compensable rating for a right knee surgical scar is dismissed. The appeal as to the issue of entitlement to a disability rating in excess of 20 percent for left upper extremity radiculopathy is dismissed. The appeal as to the issue of entitlement to a compensable rating for bilateral hearing loss is dismissed. The appeal as to the issue of entitlement to service connection for chronic renal disease is dismissed. The appeal as to the issue of entitlement to service connection for sleep apnea is dismissed. Service connection for major depressive disorder is granted. Service connection for right upper extremity radiculopathy is granted. For the period prior to October 9, 2018, a total disability rating based on individual unemployability (TDIU) is granted. A TDIU from October 9, 2018 through May 31, 2020 is dismissed as moot. A TDIU is granted from June 1, 2020 onward. An increased 30 percent disability rating for a cervical spine disability is granted. An increased 20 percent disability rating for a right ankle disability is granted. An increased 20 percent disability rating for a left ankle disability is granted. REMANDED 1. The issue of entitlement to an increased rating for a left knee disability rated as 10 percent disabling based on limitation of flexion, and 40 percent disabling based on limitation of extension prior to October 21, 2015 and zero percent disabling since that date is remanded. 2. The issue of entitlement to an increased rating for a right knee disability rated as 40 and 10 percent disabling based on limitation of extension and instability for the period prior to October 21, 2015 and zero percent disabling since that date, evaluated as 10 percent disabling based on limitation of flexion for the period from January 7, 2015 to October 8, 2018, rated as 100 percent disabling for the period from October 9, 2018 to November 30, 2019 based on convalescence after surgery, and rated as 30 percent disabling for the period since December 1, 2019 is remanded. 3. The issue of entitlement to an acquired psychiatric disorder other than major depressive disorder is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision regarding the issues of entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy; entitlement to a disability rating in excess of 10 percent for GERD; entitlement to service connection for a gastric ulcer; entitlement to service connection for esophagus/throat ulcers; entitlement to a disability rating in excess of 20 percent prior to November 14, 2019, 100 percent from November 14, 2019 to May 31, 2020, and 20 percent from June 1, 2020 onward for a low back disability; entitlement to a compensable rating for a right knee surgical scar; entitlement to a disability rating in excess of 20 percent for left upper extremity radiculopathy; entitlement to a compensable rating for bilateral hearing loss; entitlement to service connection for chronic renal disease; entitlement to service connection for sleep apnea; the Veteran requested a withdrawal of the appeal of the issues. 2. The Veteran's major depressive disorder was caused by functional limitations associated with his service-connected disabilities. 3. The Veteran's right upper extremity radiculopathy was caused by his service-connected cervical spine disability. 4. The Veteran's service-connected disabilities precluded him from obtaining or maintaining a substantially gainful occupation prior to October 9, 2018 and from June 1, 2020 onward. 5. The Veteran is in receipt of both a 100 percent disability rating and SMC pursuant to 38 U.S.C. § 1114(s) from October 9, 2018 to June 1, 2020. 6. When accounting for additional functional loss due to flare-ups, the Veteran's cervical spine disability manifested in symptoms which approximated limitation of forward flexion of the cervical spine to 15 degrees or less throughout the period on appeal. His disability has not been shown to result in ankylosis. 7. When accounting for functional impairment, the effects of the Veteran's right ankle disability are equivalent to marked limitation of motion of the ankle throughout the period on appeal. His disability has not been shown to result in ankylosis. 8. When accounting for functional impairment, the effects of the Veteran's left ankle disability are equivalent to marked limitation of motion of the ankle throughout the period on appeal. His disability has not been shown to result in ankylosis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding the issue of entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal regarding the issue of entitlement to a disability rating in excess of 10 percent for GERD are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal regarding the issue of entitlement to a disability rating in excess of 20 percent prior to November 14, 2019, 100 percent from November 14, 2019 to May 31, 2020, and 20 percent from June 1, 2020 onward for a low back disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal regarding the issue of entitlement to service connection for a gastric ulcer are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the appeal regarding the issue of entitlement to service connection for esophagus/throat ulcers are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the appeal regarding the issue of entitlement to a compensable rating for a right knee surgical scar are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of the appeal regarding the issue of entitlement to a disability rating in excess of 20 percent for left upper extremity radiculopathy are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of the appeal regarding the issue of entitlement to a compensable rating for bilateral hearing loss are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 9. The criteria for withdrawal of the appeal regarding the issue of entitlement to service connection for chronic renal disease are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 10. The criteria for withdrawal of the appeal regarding the issue of entitlement to service connection for sleep apnea are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 11. The criteria for service connection for major depressive disorder are met. 38 U.S.C. §§ 1110, 1101, 1112, 1113, 1131, 1137, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 12. The criteria for service connection for right upper extremity radiculopathy are met. 38 U.S.C. §§ 1110, 1101, 1112, 1113, 1131, 1137, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 13. The criteria for a TDIU are met prior to October 9, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. 14. The appeal concerning entitlement to a TDIU from October 9, 2018 through May 31, 2020 is dismissed as moot. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 4.16. 15. The criteria for a TDIU are met from June 1, 2020 onward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. 16. The criteria for an increased disability rating of 30 percent for a cervical spine disability are met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.10, 4.14, 4.2, 4.21, 4.25 4.40, 4.7 38 C.F.R. § 4.71a, Diagnostic Code 5242. 17. The criteria for an increased disability rating of 20 percent for a right ankle disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5271; Burton v. Shinseki, 25 Vet. App. 1 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). 18. The criteria for an increased disability rating of 20 percent for a left ankle disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5271; Burton v. Shinseki, 25 Vet. App. 1 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to September 1998. These matters come to the Board of Veterans' Appeals (Board) on appeal from June 2014, October 2015, and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in St. Petersburg, Florida. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in January 2021. The transcript of the hearing has been associated with the claims file. The Board has expanded the claim of service connection for major depressive disorder to one for service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). 1. Withdrawal of Issues on Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative and must be in writing, except for appeals withdrawn on the record at a hearing. Id. In Acree v. O'Rourke, the Federal Circuit Court of Appeals held that an effective claim withdrawal must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the veteran. 891 F.3d 1009 (Fed. Cir. 2018). Here, during the January 2021 Board hearing, the Veteran confirmed that he wished to withdraw his appeal regarding the issues of entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy; entitlement to a disability rating in excess of 10 percent for GERD; entitlement to service connection for a gastric ulcer; entitlement to service connection for esophagus/throat ulcers; entitlement to a disability rating in excess of 20 percent prior to November 14, 2019, 100 percent from November 14, 2019 to May 31, 2020, and 20 percent from June 1, 2020 onward for a low back disability; entitlement to a compensable rating for a right knee surgical scar; entitlement to a disability rating in excess of 20 percent for left upper extremity radiculopathy; entitlement to a compensable rating for bilateral hearing loss; entitlement to service connection for chronic renal disease; and entitlement to service connection for sleep apnea. The Veteran's statement to withdraw was made on the record during his hearing and was later reduced to writing. The Board finds that this communication reflects an explicit and unambiguous withdrawal of the appellant's claim and demonstrates a full understanding of the effect of such withdrawal, particularly given that there was a discussion off the record surrounding the withdrawal; therefore, it satisfies the criteria for withdrawal of a substantive appeal. As there remain no allegations of errors of fact or law for appellate consideration on these issues, the Board does not have jurisdiction to review appeal of these issues, and they are dismissed. Service Connection Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Further, service connection may be established on a secondary basis for a disability which was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). 2. Entitlement to service connection for major depressive disorder The Veteran contends that he developed major depressive disorder as a result of his service-connected disabilities. The Veteran is service connected for status post right total knee arthroplasty, cervical spine degenerative disc disease status post fusion, left upper extremity radiculopathy, left lower extremity radiculopathy, right lower extremity radiculopathy, lumbar spine degenerative disc disease status post discectomy, left knee patellofemoral syndrome with degenerative arthritis and limited flexion, left ankle degenerative joint disease status post reconstruction, right ankle degenerative joint disease, right knee patellofemoral syndrome with degenerative arthritis and limited extension, left knee patellofemoral syndrome with degenerative arthritis and limited extension, and right knee medial-lateral instability. After a review of the evidence of record, the Board finds that the preponderance of the evidence supports a finding that the Veteran has a diagnosis of major depressive disorder secondary to his service-connected disabilities. In addressing a current diagnosis, the Board notes that a current diagnosis is confirmed by the evidence of record. Specifically, a VA examiner diagnosed the Veteran with depressive disorder due to chronic pain, with anxious distress. See March 2020 VA Examination Report. In addressing nexus, the March 2020 VA examiner opined that the claimed condition was at least as likely as not proximately due to or the result of the Veteran's service-connected condition. The examiner reasoned that the Veteran meets the DSM 5 criteria for depressive disorder due to chronic pain with anxious distress. This disorder began subsequent to the service-connected cervical spine degenerative disc disease post fusion, left ankle degenerative joint disease status post reconstruction/loss of reproductive organ, right total knee arthroplasty/loss of reproductive organ, left knee patellofemoral syndrome with degenerative arthritis and limited extension/loss of reproductive organ, lumbar spine degenerative disc disease post discectomy and fusion, right knee patellofemoral syndrome with degenerative arthritis and limited extension/loss of reproductive organ, right ankle degenerative joint disease/loss of reproductive organ, and left knee patellofemoral syndrome with degenerative arthritis and limited flexion; and has been present since onset. Therefore, the examiner determined that there was an established nexus between the secondary condition and the service-connected conditions. The opinion from the March 2020 VA examiner was based upon a review of the Veteran's medical records and consideration of his reported history; and it was accompanied by a rationale which is consistent with the evidence of record. Hence, the opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In light of the foregoing, the Board finds that the preponderance of the evidence supports the claim, and the benefit sought on appeal is granted. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. Entitlement to service connection for right upper extremity radiculopathy The Veteran contends that he developed right upper extremity radiculopathy as a result of his service-connected cervical spine disability. Specifically, the Veteran contends that he has pain radiating down into his shoulder due to osteoarthritis in his upper back. After a review of the evidence of record, the Board finds that the preponderance of the evidence supports a finding that the Veteran has a diagnosis of right upper extremity radiculopathy secondary to his service-connected cervical spine disability. In addressing a current diagnosis, the Board notes that a current diagnosis is confirmed by the evidence of record. Specifically, a VA examiner diagnosed the Veteran with right upper extremity radiculopathy. See August 2020 VA Examination Report. In addressing nexus, the August 2020 VA examiner opined that the claimed condition was directly due to or related to the service-connected diagnosis. The examiner noted that the Veteran was service-connected for cervical spine degenerative disc disease status post fusion, and indicated that degenerative disc disease can lead to irritation of nerve roots causing radiculopathy. The opinion from the August 2020 VA examiner was based upon a review of the Veteran's medical records and consideration of his reported history; and it was accompanied by a rationale which is consistent with the evidence of record. Hence, the opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In light of the foregoing, the Board finds that the preponderance of the evidence supports the claim, and the benefit sought on appeal is granted. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) As an initial matter, the Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate the Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability rating does not always render the issue of a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In this case, the Veteran is in receipt of both a 100 percent disability rating and SMC from October 9, 2018 to June 1, 2020; therefore, the issue of entitlement to a TDIU from October 9, 2018 to June 1, 2020 is moot. Turning to the period prior to October 9, 2018 and from June 1, 2020 onward. A TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Prior to October 9, 2018, service connection had been established for status post right total knee arthroplasty (rated as 10 percent disabling); cervical spine degenerative disc disease status post fusion (rated as 30 percent disabling); left upper extremity radiculopathy associated with cervical spine degenerative disc disease status post fusion (rated as 20 percent disabling); left lower extremity radiculopathy associated with lumbar spine degenerative disc disease status post discectomy and fusion (rated as 20 percent disabling); right lower extremity radiculopathy associated with lumbar spine degenerative disc disease status post discectomy and fusion (rated as 20 percent disabling); lumbar spine degenerative disc disease status post discectomy and fusion (rated as 20 percent disabling); left knee patellofemoral syndrome with degenerative arthritis and limited flexion (rated as 10 percent disabling); left ankle degenerative joint disease status post reconstruction (rated as 20 percent disabling); right ankle degenerative joint disease (rated as 20 percent disabling); tinnitus (rated as 10 percent disabling); GERD (rated as 10 percent disabling); seborrheic dermatitis and tinea versicolor (rated as noncompensable); residual, basal cell carcinoma (rated as noncompensable); bilateral hearing loss (rated as noncompensable); surgical scars, right knee, left ankle and posterior trunk (rated as noncompensable); surgical scar, neck (rated as noncompensable); right knee patellofemoral syndrome with degenerative arthritis and limited extension (rated as 40 percent from July 17, 2013 to October 21, 2015 and noncompensable from October 21, 2015 to October 9, 2018); left knee patellofemoral syndrome with degenerative arthritis and limited extension (rated as 40 percent from June 12, 2014 to October 21, 2015 and noncompensable from October 21, 2015); and right knee medial-lateral instability (rated as noncompensable). The Veteran had two or more disabilities, with at least one disability ratable at 40 percent or more (the cervical spine disability and left upper extremity affect a single body system) and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Thus, the Veteran met the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16 (a). From June 1, 2020 onward, service connection has been established for status post right total knee arthroplasty (rated as 30 percent disabling); cervical spine degenerative disc disease status post fusion (rated as 30 percent disabling); left upper extremity radiculopathy associated with cervical spine degenerative disc disease status post fusion (rated as 20 percent disabling); left lower extremity radiculopathy associated with lumbar spine degenerative disc disease status post discectomy and fusion (rated as 20 percent disabling); right lower extremity radiculopathy associated with lumbar spine degenerative disc disease status post discectomy and fusion (rated as 20 percent disabling); lumbar spine degenerative disc disease status post discectomy and fusion (rated as 20 percent disabling); left knee patellofemoral syndrome with degenerative arthritis and limited flexion (rated as 10 percent disabling); left ankle degenerative joint disease status post reconstruction (rated as 20 percent disabling); right ankle degenerative joint disease (rated as 20 percent disabling); tinnitus (rated as 10 percent disabling); GERD (rated as 10 percent disabling); seborrheic dermatitis and tinea versicolor (rated as noncompensable); residual, basal cell carcinoma (rated as noncompensable); bilateral hearing loss (rated as noncompensable); surgical scars, right knee, left ankle and posterior trunk (rated as noncompensable); surgical scar, neck (rated as noncompensable); right knee patellofemoral syndrome with degenerative arthritis and limited extension (rated as noncompensable); left knee patellofemoral syndrome with degenerative arthritis and limited extension (rated as noncompensable); right knee medial-lateral instability (rated as noncompensable); and erectile dysfunction (rated as noncompensable). The Veteran has two or more disabilities, with at least one disability ratable at 40 percent or more (the cervical spine disability and left upper extremity affect a single body system) and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Thus, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). After reviewing the evidence of record, the Board finds that the Veteran's service-connected disabilities preclude him from obtaining or maintaining a substantially gainful occupation prior to October 9, 2018 and from June 2, 2020 onward. In this regard, the record reflects that the Veteran completed some college coursework. Since service, the Veteran reported primary employment working as a handy man and an apartment complex manager. The Veteran indicated on his VA 21-8940 Veteran's Application for Increased Compensation Based on Unemployability that he became too disabled to work in May 2014 due to a combination of service-connected disabilities. A VA 21-4192 from Ernie's Complete Home Maintenance (the Veteran's former employer) confirmed that the Veteran stopped working in May 2014 because he was unable to perform his duties and responsibilities. Turning to the medical evidence of record, a June 2014 VA examiner opined that the Veteran's knee and/or lower leg conditions impact his ability to work in that he cannot use ladders or climb up multiple stairs, stand, or walk for extended periods of time. An October 2015 VA examiner opined that the Veteran's bilateral hearing loss and tinnitus impact his ability to work in that the Veteran reported that he has difficulty hearing in background noise, hearing his wife, even with the use of hearing protection, and at times his tinnitus disrupts his sleep. An October 2015 VA examiner opined that the Veteran's cervical spine condition did not impact his ability to work. However, the examiner indicated that the Veteran should be allowed to get up and move around when needed; and work activities involving dangerous equipment and/or strenuous physical employment including lifting beyond 5 pounds is precluded. An October 2015 VA examiner opined that the Veteran's thoracolumbar spine condition did not impact his ability to work. However, the examiner indicated that prolonged standing and walking aggravate back pain and therefore such activities should be limited. The examiner further indicated that the Veteran would not be able to return to his previous work as a handyman due to his back condition and activities involving dangerous equipment is precluded due to his narcotic pain medication. On a December 2015 Back (thoracolumbar spine conditions) Disability Benefits Questionnaire, a clinician opined that the condition impacts his ability to perform any type of occupational task in that the Veteran has difficulty sitting, standing for long periods of time, walking, and bending. On a January 2016 Back (cervical spine conditions) Disability Benefits Questionnaire, a clinician opined that the condition impacts his ability to perform any type of occupational task in that the Veteran has issues with prolonged walking or sitting. On a December 2015 Knee and Lower Leg Conditions Disability Benefits Questionnaire, a clinician opined that the condition impacts his ability to perform any type of occupational task in that the condition limits his ability to walk, sit, stand, kneel, stoop, or lift. An April 2017 VA examiner opined that the Veteran's hearing loss impacts his ordinary conditions of daily life, including ability to work in that he reported it he has difficulty hearing. A May 2018 VA examiner opined that the Veteran's bilateral hearing loss impact and tinnitus impact ordinary conditions of daily life, including ability to work, in that he has difficulty in all listening situations and tinnitus interferes with sleep and concentration. An August 2020 VA examiner opined that the Veteran's thoracolumbar spine condition impacted his ability to work in that the Veteran states that he can no longer work as a handyman, play with his grandchildren, bend, sit, stand, or walk for long periods of time. An August 2020 VA examiner opined that the Veteran's ankle conditions impact his ability to perform any type of occupational task in that the Veteran's left ankle degenerative joint disease status post reconstruction and right ankle degenerative joint disease make prolonged standing and walking difficult. An August 2020 VA examiner opined that the Veteran's knees impact his ability to perform any type of occupational task in that the Veteran states that he can no longer physically perform handyman work without difficulty. An August 2020 VA examiner opined that the Veteran's cervical spine condition impacts his ability to work in that moving his neck and prolonged standing and waling is difficult. Based upon the above, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities preclude him from obtaining or maintaining a substantially gainful occupation prior to October 9, 2018 and from June 1, 2020 onward. In making this determination, the Board has considered the Veteran's level of education and his primary employment history of working as a handyman and an apartment complex manager; positions which would involve sitting at a desk and inputting data, inspecting apartments (walking and standing for long periods), and performing maintenance in the absence of maintenance personnel (climbing ladders, carrying tools, bending etc.). The Board acknowledges that during the period on appeal a few VA examiners have indicated that the Veteran would be able to perform sedentary work. However, VA examiners and clinicians have also consistently indicated that prolonged sitting aggravates the Veteran's service-connected conditions. Increased Rating Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 5. Entitlement to a disability rating in excess of 20 percent for a cervical spine disability The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71a, which provides that spine disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the IVDS Formula, a spine disability is rated based on the presence of incapacitating episodes, which are periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. The General Formula for rating a disability of the spine provides in pertinent part: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, 10 percent evaluation is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 disability rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent disability rating is warranted for unfavorable ankylosis of the entire cervical spine. Under the General Formula, associated neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under the appropriate diagnostic codes. Id. at Note (1). Here, after reviewing all of the clinical evidence and subjective complaints, the Board finds that the record is negative for evidence of incapacitating episodes as defined above, and thus, the Veteran's recurrent cervical spine disability must be evaluated under the General Formula. The Board notes that during the pendency of this appeal, the schedule for rating musculoskeletal disabilities was amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Where, as here, a diagnostic code is amended while a claim is pending, VA is required to consider both versions of the code and apply the version most favorable to the Veteran. In this case, there is no relevant evidence post-dating the regulation changes, and as such, the Board will apply the former diagnostic criteria only. Turning to the former General Rating Formula, the Veteran's recurrent cervical strain is currently rated 20 percent disabling under 38 C.F.R. § 4.71a Diagnostic Code 5242. After a review of the evidence of record, the Board finds that throughout the period on appeal, the signs and symptoms associated with the Veteran's cervical spine disability best approximated forward flexion of the cervical spine to 15 degrees or less, entitling him to a 30 percent disability rating. In this regard, during an October 2015 VA cervical spine examination, the Veteran demonstrated forward flexion 0 to 40 degrees and extension 0 to 35 degrees. The examiner indicated that pain was noted on examination but did not result in/cause functional loss; there was no additional loss of function or range of motion after three repetitions; and the Veteran did not report flare-ups. However, the examiner further indicated that he was unable to say without mere speculation whether pain weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time and the examiner documented that the Veteran reported pain to the neck with prolonged sitting, or prolonged use of the neck. A clinician indicated in a January 2016 Neck (Cervical Spine) Conditions Disability Benefits Questionnaire that the Veteran reported that flare-ups impacted the function of the cervical spine in that pain causes decrease in range of motion. Specifically, the Veteran reported almost unbearable pain at times; decrease in range of motion looking left or right; and having to lay down and find a comfortable position until pain subsides. During an April 2017 VA cervical spine examination, the Veteran demonstrated forward flexion 0 to 40 degrees and extension 0 to 35 degrees. The examiner indicated that pain was noted on examination but did not result in/cause functional loss; there was no additional loss of function or range of motion after three repetitions; and the Veteran did not report flare-ups. However, the examiner indicated that he was unable to say without mere speculation whether pain weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or during flare-ups and the examiner documented that the Veteran reported 6/10 neck pain worse with increase in activity with neck rotation. During an August 2020 VA cervical spine examination, the Veteran demonstrated forward flexion 0 to 20 degrees and extension 0 to 20 degrees. The examiner indicated that the Veteran did not report flare-ups. However, the examiner indicated that pain was noted on examination and causes functional loss. The examiner further indicated that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time. Specifically, the examiner indicated that forward flexion was limited to 0 to 15 degrees and extension 0 to 15 degrees. The examiner also documented that the Veteran reported good days and bad days, neck pain when turning his head, and that he can no longer do handyman work, prolonged walking, or play with his grandchildren. The Veteran testified during the January 2021 Board Hearing that his neck is tight with restricted range of motion all of the time. He has a constant feeling of tenseness and has to use a massager for pain multiple times daily. Based on the foregoing evidence, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's cervical spine disability was productive of forward flexion limited to 15 degrees or less throughout the period on appeal. See 38 C.F.R. § 3.102. With regard to repeated use over time, the August 2020 VA examiner indicated forward flexion was limited 0 to 15 degrees with repeated use over time. With regard to flare-ups, the Veteran reported pain to the neck with prolonged sitting, or prolonged use of the neck; 6/10 neck pain worse with increase in activity with neck rotation; decrease in range of motion looking right and left; unbearable pain at times; having to lay down and find a comfortable position until pain subsides; and that he can no longer do handyman work or play with his grandchildren. Further, a January 2016 Neck (Cervical Spine) Conditions Disability Benefits Questionnaire indicated that the Veteran reported that flare-ups impacted the function of the cervical spine in that pain causes decrease in range of motion. The Board acknowledges that the none of the VA examiners or the private clinician have described the Veteran's flare-ups in terms of range of motion. However, the Board finds that the Veteran's lay statements indicate that his cervical spine disability is more severe than the VA examination findings alone suggest. Accordingly, an increased disability rating of 30 percent is warranted throughout the period on appeal. A rating in excess of 30 percent is not warranted. In order to warrant a rating higher than 30 percent for the orthopedic manifestations of the Veteran's cervical spine disability under the General Rating Formula, the evidence must show unfavorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Here, there is no objective medical evidence of ankylosis in the claims file. The Veteran's VA treatment and private treatment records do not indicate that the Veteran was diagnosed with ankylosis or that his spine was fixed in an unfavorable position. During the October 2015, April 2017, August 2020 VA Neck (Cervical Spine) examinations, the examiners indicated that the Veteran did not have ankylosis. Significantly, the Veteran has not raised any assertion that his cervical spine disability is manifested by ankylosis. In short, the evidence of record does not reflect a diagnosis of ankylosis or that the Veteran's spine was fixed in an unfavorable position. As entitlement to a higher disability rating turns on a showing of unfavorable ankylosis of the cervical spine, or unfavorable ankylosis of the entire spine, a higher rating for Veteran's cervical spine disability is simply not warranted. In making the above determinations, the Board considered Correia v. McDonald, 28 Vet. App. 158 (2016). However, a 30 percent rating is the maximum schedular rating available for limitation of motion of the cervical spine under the General Rating Formula, to include the functional equivalent of limitation of motion. Therefore, the Board finds that Correia is inapplicable. 6. Entitlement to a disability rating in excess of 10 percent for a right ankle disability 7. Entitlement to a disability rating in excess of 10 percent for a left ankle disability The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the Veteran or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). When evaluating a disability based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic codes, 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, 204-7 (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; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Court has recently reiterated that it is imperative that a VA examiner estimate the additional degree of limitation of motion caused by flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In the instant case, the Veteran's left ankle and right ankle are currently assigned 10 percent ratings pursuant to 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 evaluation assigned. Diagnostic Code 5010 concerns arthritis due to trauma; it requires establishment by x-ray evidence. Diagnostic Code 5010 is to be rated the same as Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. However, in the absence of limitation of motion, the disability is to be rated as 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups; and as 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Disability ratings under Diagnostic Code 5003 is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. Diagnostic Code 5271 is assigned to evaluate limited motion of the ankle. A 10 percent rating is assigned for "moderate" limited motion; a 20 percent rating is assigned for "marked" limited motion. The words "moderate" and "marked" are not defined in the rating schedule and, rather than applying a mechanical formula, the Board must evaluate the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. After reviewing the evidence of record, the Board finds that the signs and symptoms of the Veteran's left ankle disability and right ankle disability most closely reflect marked limitation of motion of the left ankle and right ankle, particularly when considering functional loss, warranting the assignment of a 20 percent rating under Diagnostic Code 5271 throughout the period on appeal. Specifically, the Veteran reported persistent pain 6/10 on right lateral ankle with weight bearing occurring once a week, lasting 1-2 days depending on activity level, resolved with sitting down; and persistent pain 7/10 on left lateral ankle with weight bearing occurring twice a week and lasting 1-2 days depending on activity level, resolved with sitting down. See October 2015 VA Ankle Conditions Examination Report. The Veteran reported intermittent pain on right lateral ankle 6/10 associated with increased activity. See April 2017 VA Ankle Conditions Examination Report. Additionally, the Veteran reported loss of range of motion with intermittent pain to both ankles and inability to perform work as a handy man, play with grandchildren, stand, and walk for long periods; and he displayed painful motion during range of motion testing. See August 2020 VA Ankle Conditions Examination Report. In consideration of the holdings in DeLuca, Burton, and Sharp, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for an evaluation of 20 percent for the left ankle and right ankle are met due to functional loss. On the other hand, the Board finds that the criteria for a rating greater than 20 percent have not been met in the instant case throughout the period on appeal. The only other relevant diagnostic code under which the Board could possibly assign a rating in excess of 20 percent is 38 C.F.R. § 4.71a, Diagnostic Code 5270 for ankylosis of the ankle. Under Diagnostic Code 5270, a 30 percent rating is assigned when the ankle is ankylosed at between 30 and 40 degrees in plantar flexion, or at between 0 and 10 degrees in dorsiflexion. The maximum 40 percent rating is warranted when the ankle is ankylosed at more than 40 degrees in plantar flexion, or at more than 10 degrees in dorsiflexion, or with abduction, adduction, inversion, or eversion deformity. The Court has defined ankylosis as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Shipwash v. Brown, 8 Vet. App. 218, 221 (1995); Nix v. Brown, 4 Vet. App. 462, 465 (1993); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision). At no point during the pendency of the appeal has the Veteran's left ankle or right ankle presented with ankylosis. Indeed, ankylosis was not indicated in any of the VA treatment records, private treatment records, or VA examinations associated with the claims file. As such, a rating greater than 20 percent for the left ankle and right ankle is not warranted in the present case. REASONS FOR REMAND 1. Entitlement to an increased rating for a left knee disability rated as 10 percent disabling based on limitation of flexion, and 40 percent disabling based on limitation of extension prior to October 21, 2015 and zero percent disabling since that date 2. Entitlement to an increased rating for a right knee disability rated as 40 and 10 percent disabling based on limitation of extension and instability for the period prior to October 21, 2015 and zero percent disabling since that date, evaluated as 10 percent disabling based on limitation of flexion for the period from January 7, 2015 to October 8, 2018, rated as 100 percent disabling for the period from October 9, 2018 to November 30, 2019 based on convalescence after surgery, and rated as 30 percent disabling for the period since December 1, 2019 After reviewing the evidence of record, the Board finds that an additional remand is necessary to obtain an addendum opinion (based on file review only) as the examinations/opinions of record are inadequate for adjudicative purposes. Specifically, regarding flare-ups, a June 2014 VA examiner documented that the Veteran reported that flare-ups impact the function of his knee and/lower leg and the examiner confirmed that pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the knee is used repeatedly over a period of time. However, the examiner concluded that it would be purely speculative to state exactly what degrees of additional range of motion loss would be due to pain on use or during flare-ups. Such a finding is contrary to the Court of Appeals for Veterans Claims' (Court) holding in Sharp v. Shulkin. 29 Vet. App. 26 (2017). In Sharp, the Court indicated that, when evaluating musculoskeletal disabilities, Deluca v. Brown, 8 Vet. App. 202 (1995) and its progeny anticipated that VA examiners would need to estimate functional loss that occurred during flare-ups, using information procured from relevant sources of record in addition to examination reports, including lay statements from veterans themselves. 29 Vet. App. at 34-35. The Board notes that in December 2015 a clinician also confirmed that the Veteran experienced flare-ups related to his knees but did not estimate the functional loss that occurred during flare-ups in degrees of range of motion. Therefore, the increased rating issues are remanded so an examiner can make the necessary flare-up estimates from relevant sources of record. 3. The issue of entitlement to an acquired psychiatric disorder other than major depressive disorder is remanded. The Veteran contends that he developed an acquired psychiatric disorder as a result of (secondary to) his service-connected disabilities. In this regard, an October 2015 VA examiner opined that the Veteran's adjustment disorder was less likely than not related to his service-connected conditions. The examiner reasoned that the Veteran endorsed financial stressors that were the most likely causative factors for his adjustment disorder. Specifically, the Veteran endorsed feeling upset related to his financial setback after his divorce in 2010 after 30 years of marriage. The Board finds the October 2015 VA examiner opinion inadequate to decide the Veteran's claim for service connection for an acquired psychiatric disorder other than major depressive disorder. The October 2015 VA examiner opinion did not address aggravation. A medical opinion regarding secondary service connection must address both causation and aggravation. See El Amin v. Shinseki, 26 Vet. App. 140 (2013). Therefore, an addendum opinion addressing aggravation should be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that, when VA undertakes to provide a veteran with an examination, that examination must be adequate for VA purposes). Additionally, the Board notes that the evidence of record includes an additional acquired psychiatric diagnosis. Specifically, VA treatment records document a current diagnosis of anxiety disorder, NOS. See September 2016 Private Treatment Records. As indicated above, the Board has expanded the Veteran's claim for entitlement to service connection for major depressive disorder to a claim for service connection for an acquired psychiatric disorder, therefore, an addendum opinion addressing this psychiatric diagnosis should also be obtained on remand. Id. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Forward a copy of this remand to an examiner for the purpose of obtaining an opinion, including a retrospective opinion (based on file review). (a.) Based upon the information elicited regarding i. frequency, ii. duration, iii. precipitating factors, and iv. alleviating factors of flare-ups, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion is additionally limited to flexion of 30 degrees or less or extension of 45 degrees for the left knee and limited to flexion of 30 degrees or less or extension of 45 degrees for the right knee. Please explain why or why not. (b.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that repetitive use over time additionally limits motion to 30 degrees or less (for flexion) or 45 degrees (for extension) for the left knee and 30 degrees or less (flexion) or 45 degrees (for extension) for the right knee. Please explain why or why not. (c.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up the disability is manifested by effusion and/or locking. (d.) If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the Agency of Original Jurisdiction (AOJ) should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. (e.) If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). 3. Return the claims file to the examiner who conducted the Veteran's October 2015 psychiatric examination, if available. If that examiner is not available, send the claims file to another examiner. The claims file and this remand should be made available to the examiner and review of the file should be noted in the requested report. After reviewing the claims file the examiner should respond to the following: (a.) Please identify all current psychiatric disorders other than major depressive disorder. (b.) Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. (c.) Is it at least as likely as not (50 percent probability or greater) that a diagnosed acquired psychiatric disorder other than major depressive disorder was caused or aggravated by the Veteran's service-connected disabilities? Please address both causation and aggravation. The examiner is asked to specifically discuss the Veteran's chronic pain. (d.) If the examiner finds that the Veteran's acquired psychiatric disorder other than major depressive disorder has been worsened beyond normal progression (aggravated) by the Veteran's service-connected disabilities, the examiner should attempt to quantify the degree of aggravation beyond the baseline level that is attributed to the service-connected disability. (e.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.