Citation Nr: 21007988
Decision Date: 02/11/21	Archive Date: 02/11/21

DOCKET NO. 20-01 484
DATE: February 11, 2021

ORDER

Entitlement to service connection for right hip osteoarthritis is granted.

Entitlement to a rating in excess of 40 percent for lumbar 4-5 herniated nucleus pulposus with degenerative changes (back condition) is denied.

Entitlement to a rating in excess of 20 percent for radiculopathy affecting the femoral nerve of the right lower extremity is denied.

Entitlement to a rating in excess of 60 percent prior to January 7, 2014 and in excess of 20 percent thereafter for radiculopathy affecting the sciatic nerve of the right lower extremity is denied.

Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome with degenerative arthritis (knee condition) is denied.

Entitlement to a rating of 10 percent for lateral instability of the left knee effective May 20, 2019 is granted.

Entitlement to an effective date prior to March 28, 2016 for the rate reduction to 10 percent for left knee condition is denied.

Entitlement to a rating in excess of 30 percent for insomnia is denied.

Entitlement to a rating in excess of 20 percent for right foot plantar fasciitis and right heel spur with degenerative arthritis (foot condition) is denied.

Entitlement to an effective date prior to January 15, 2016 for the 20 percent rating for right foot condition is denied.

REMANDED

Entitlement to service connection for headaches, secondary to service connected back condition and/or insomnia is remanded.

Entitlement to total disability due to individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran’s osteoarthritis of the right hip is etiologically related to active service. 

2. The Veteran’s back condition is not manifested by unfavorable ankylosis or incapacitating episodes due to IVDS.  

3. The Veteran’s radiculopathy affecting the femoral nerve is manifested by no more than moderate incomplete paralysis.

4. The Veteran’s radiculopathy affecting the sciatic nerve is manifested by no more than moderate incomplete paralysis.

5. The Veteran’s limitation of flexion of the left knee is manifested by no more than painful motion.

6. The Veteran’s left knee condition is manifested by lateral instability effective May 20, 2019.

7. It is factually ascertainable that the Veteran’s limitation of flexion improved prior to January 15, 2016, which is the date of claim, and no claim was reasonably raised prior to that date.

8. The severity, frequency, and duration of the Veteran’s insomnia symptoms did not more closely approximate an occupational and social impairment with reduced reliability and productivity.

9. The Veteran’s right foot condition is manifested by pain on use that is accentuated, pain on manipulation, decreased longitudinal arch height on weight-bearing and pain on weight-bearing. 

10. It is not factually ascertainable that the Veteran’s right foot condition worsened, warranting a rating of 20 percent, prior to January 15, 2016, which is the date of claim, and no claim was reasonably raised prior to that date.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for osteoarthritis of the right hip are met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for a rating in excess of 40 percent for back condition are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243.

3. The criteria for a disability rating in excess of 20 percent for radiculopathy of the femoral nerve are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

4. The criteria for a disability rating in excess of 60 percent prior to January 7, 2014 and in excess of 20 percent thereafter for radiculopathy of the sciatic nerve are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

5. The criteria for a rating in excess of 10 percent for limitation of flexion of the left knee are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

6. The criteria for a rating of 10 percent for lateral instability of the left knee effective May 20, 2019 are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

7. The criteria for an effective date, prior to March 28, 2016 for limitation of flexion of the left knee are not met.  38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

8. The criteria for a disability rating in excess of 30 percent for insomnia are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9421.

9. The criteria for a rating in excess of 20 percent for right foot condition are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276.

10. The criteria for an effective date, prior to January 15, 2016 for the grant of a 20 percent rating for right foot condition are not met.  38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from November 2006 to February 2007.

Service Connection 

1. Right Hip Pain

The Veteran contends he is entitled to service connection for right hip pain. 

The Board concludes that the Veteran has a current disability of osteoarthritis of the right hip related to the wear and tear that occurred in active service.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

The June 2020 VA examiner conducted an in-person examination and reviewed the records.  The Veteran received diagnoses of osteoarthritis of the right hip and hip strain.  The examiner noted that the medical records reveal that a few months after separation from service, in May and June 2007 the Veteran had several consultations for joint hip pain.  In May 2008 he complained of right hip pain and an x-ray revealed osteoarthritis.  Thus, the medical history shows that the condition began in 2007 stemming from his in-service injury.  Therefore, the examiner concluded that the examination findings, medical history and x-ray imaging from 2008 support the nexus that the right hip condition is due to overuse and incurred in-service.  These findings are consistent with the July 2016 examiner who also noted that the service treatment records documented right hip pain in September and May 2007.  

As such, the Board finds that the Veteran’s current osteoarthritis of the right hip is related to service and the claim for service connection for right hip osteoarthritis is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Increased Rating

Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating 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 the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others.  The Court since has extended this practice even to established ratings, not just initial ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45 (2017).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

1. Entitlement to a rating in excess of 40 percent for lumbar 4-5 herniated nucleus pulposus with degenerative changes 

The Veteran contends he is entitled to a rating in excess of 40 percent for his back condition.

The Veteran’s back condition is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS).  Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.

The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.  

Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Id.  at Note 1.  

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  Id.  at Note 1.  

Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.”  Id.  at Note 5.  Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis.  Id.  

The Veteran attended a VA examination in November 2012 and reported an exacerbation of his back condition in February with a sudden onset of severe lower back and leg pain.  He expressed difficulty with walking, balancing, activities of daily living and work activities.  The Veteran reported flare-ups described as intolerably intense pain and weakness that occurred seven to eight times in the past nine months lasting one to two days, resulting in the inability to get out of bed without help, to walk without support or straighten his back.  Range of motion testing revealed flexion to 50 degrees with pain at 35 degrees, extension to 20 degrees with pain at 10 degrees, right lateral flexion to 25 degrees with pain at 15 degrees, left lateral flexion to 25 degrees with pain at 20 degrees, and right and left lateral rotation to 15 degrees with pain at 10 degrees.  Repetitive use testing results in additional limitations of flexion to 40 degrees, extension to 15 degrees, and left lateral flexion to 20 degrees.  The examiner reported functional loss due to less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing.  The Veteran had moderate tenderness to the right lumbar paravertebral and marked tenderness to palpation to the right SI and lumbar facet areas.  He displayed guarding and muscle spasms resulting in an abnormal gait and spinal contour.  He had reduced muscle strength of four out of five on the right with a strength of three out of five for great toe extension.  The examiner noted muscle atrophy of the right calf of 0.5 centimeters.  The right side also had hypoactive reflexes, and decreased sensation of the lower leg and foot with a positive straight leg raise.  The examiner reported the following symptoms of radiculopathy of the right leg:  severe constant pain, intermittent pain and paresthesias/dysesthesias, and moderate numbness.  The examiner concluded that there was involvement of the sciatic and femoral nerves that was severe.  The examiner diagnosed IVDS noting incapacitating episodes for a total duration of at least six weeks over the past 12 months but did not reference any bed rest prescribed by a physician in the medical records.  The Veteran reported regular use of a cane for stability and balance when standing and walking.  Functionally, the examiner concluded that the Veteran can lift less than 10 pounds up to three hours a day, walk about a block with a cane, walk less than two hours, sit less than 20 minutes and stand less than 10 minutes with a cane at a time, sit less than six hours a day and stand less than an hour a day with a cane.  Additionally, he was unable to bend, stoop, squat, kneel, climb ladders or structures, or operate heavy machinery and pain and paresthesias interferes with concentration and focus.     

In January 2014 the Veteran attended a VA examination and reported daily flare-ups.  He described them as increased pain and stiffness with tingling and numbness in the right lower extremity that lasts several hours and results in the inability to walk or do any physical activity and requires him to lay down and rest.  Range of motion testing revealed flexion to 30 degrees with pain, extension to zero with pain, right and left lateral flexion to 10 degrees with pain, and right and left lateral rotation to 15 degrees with pain.  There was no additional loss with repetitive use testing.  The examiner reported functional loss due to less movement than normal, weakened movement, excess fatigability, and pain on movement.  The examiner noted additional limitations due to pain, weakness and fatigability during flare-ups and repeated use over time described as flexion to 10 degrees, the inability to extend, and right and left lateral flexion and right and left lateral rotation to 10 degrees.  The Veteran had tenderness over the lumbar spine, guarding or muscle spasms resulting in abnormal gait, normal muscle strength, normal reflexes, and absent sensation in the right upper thigh only.  The straight leg raise was positive bilaterally with symptoms involving only the right lower extremity, which included moderate intermittent pain, severe paresthesias and/or dysesthesias and severe numbness.  The examiner concluded that there was severe involvement of the femoral and sciatic nerves of the right lower extremity and found no other neurological abnormalities related to the back condition and no IVDS.  The examiner noted that the Veteran used a cane for support with ambulation and stability.  Functionally, the Veteran can lift 25 pounds a few times, walk 100 yards, walk 20 to 30 minutes with frequent breaks, sit for 10 minutes and stand for 20 minutes at a time and sit and/or stand with frequent breaks for four hours.  

The Veteran underwent another VA examination in March 2016 and reported back pain, stiffness and right leg pain.  He denied flare-ups but reported functional loss described as the inability to walk more than 25 to 50 yards, sit no more than 10 minutes, stand no more than 15 minutes, climb no more than one flight of stairs, carry more than 20 pounds or lift anything from the floor.  Range of motion testing revealed flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to five degrees and right and left lateral rotation to 15 degrees.  The examiner noted pain and stiffness as well as pain with weight-bearing, and tenderness around the L4/L5 and L3/L4.  Repetitive use testing resulting in additional limitation of extension to five degrees and pain limited functional ability with repeated use resulting in additional limitations of right lateral flexion to 10 degrees, left lateral flexion to five degrees and right and left lateral rotation to 10 degrees.  The Veteran had muscle spasms resulting in abnormal gait or spinal contour.  His muscle strength was reduced to four out of five with no atrophy.  He had normal reflexes but decreased sensation to the right upper thigh and knee.  His straight leg raise was positive on the right with symptoms of severe intermittent pain, mild paresthesias and/or dysesthesias and moderate numbness.  The examiner reported involvement of the femoral and sciatic of the right lower extremity that was severe.  The Veteran did not have ankylosis or other neurological abnormalities.  A diagnosis of IVDs was noted with no episodes requiring bedrest.  He reported regular use of a cane, and functionally, the examiner concluded that the back condition makes employment requiring lifting, carrying, standing or stairs essentially impossible but with frequent position changes and breaks a sedentary or seated job should be possible.  

In March 2018 the Veteran attended a VA examination and reported constant throbbing and pinching pain with numbness down the right leg that occurs daily.  He declined flare-ups but described the inability to play with his kid, hike or wade in the pool without support, and being unable to sit or stand for long periods (about 15 minutes).  On examination, range of motion testing was not objectively evaluated as any active range of motion being specifically examined was at most 15 degrees in any plane, which was inconsistent with the Veteran’s spontaneous movement during other aspects of the examination.  He had non-specific pain behavior with reported tenderness, that when given the overall presentation, the examiner concluded was not objective along with the increased complaints regarding passive ankle and great toe plantarflexion.  The examiner also concluded that the sensory findings, muscle strength and reflexes were normal as there were no objective findings.  There was no pain with weight-bearing and the examiner was unable to make findings regarding pain, weakness, fatigability or incoordination due to the inconsistencies in the examination, which would make the evaluation of functional ability purely speculative.  There were no muscle spasms or guarding, no muscle atrophy, and no signs or symptoms of radiculopathy.  The examiner found no other neurological abnormalities related to the back and no IVDS but did note the regular use of a cane due to multiple musculoskeletal complaints.  The examiner also reviewed the file and cited to several medical notes.  The first being from September 11, 2017 when the Veteran presented for his employment physical for continued work as a civilian police officer, at which time he denied any concerns and stated that he is functionally able to perform the outlined occupational tasks.  The examination revealed no limitations on mobility, no lower extremity weakness, normal gait and stance, and no sensory abnormalities.  The Veteran reported engaging in 150 minutes of moderate intensity exercise and muscle strengthening.  The second treatment note was from July 2015 for a pre-employment physical to be a police officer, where the Veteran was described as being in excellent health with no physical limitations.  The examination report noted no back pain and normal balance, gait and stance.  The examiner concluded that the prior findings of the March 2016 examination are not credible based on the pre-employment physical from July 2015 and employment physical from September 2017.  Furthermore, the Veteran’s history of functional activity as noted in the VA examination was not consistent with the medical records. 

Review of the medical records reveal that in July 2012 he reported acute back pain with radicular symptoms that may be related to poor lifting.  Physical examination revealed a normal gait, flexion to 70 degrees, extension to 30 degrees, and lateral flexion and rotation bilaterally to 20 degrees.  At physical therapy in August he had normal range of motion of the right lower extremity and trunk but displayed an antalgic gait.  In September the Veteran complained of low back pain related to carrying files resulting in difficulty sitting and spasms.  He requested a work letter expressing his inability to sit for extended period and need to leave in order to take pain medication.  

A November 2012 treatment note from the flight medical clinic regarding his civilian employment physical noted that the Veteran described himself as pain free and reported that he had a back problem in the past but was successfully rehabbed and manages with an exercise regime focused on core and back strength.  He also stated that his VA disability had been completely reduced.  (A rating decision code sheet dated December 2012 reveals a combined rating of 80 percent effective April 26, 2012.  See Rating Decision Code Sheet December 2012).  The review of systems reported no muscle aches, no motor or sensory disturbances and no gait abnormality.  The physical findings reported normal movement of all extremities, no muscle tenderness, and normal strength, balance gait and stance.  The examination report noted a normal examination with no limiting conditions or handicap.  

In September 2013, the Veteran reported activities including exercise and swimming and the ability to maintain activities of daily living.  The Veteran complained of chronic low back pain and right sided sciatica with pain starting four months ago in March 2014.  In August the Veteran stated he was exercising regularly and doing well at his job with the VA.  The Veteran complained of a flare-up in December with right leg pain, tingling and numbness.  

The Veteran underwent a pre-employment physical in July 2015, which described him as in excellent health with no physical limitations for his new job requirement.  The Veteran denied back pain and any neurological symptoms.  The physical findings noted that mobility was not limited, the sensory examination was normal, there was no observed lower extremity weakness, and his balance, gait and stance was normal.  The examiner noted that the Veteran engages in 150 minutes of moderate intensity exercise and muscle strength activities twice a week.  In October 2015 the Veteran reported employment with the federal government and working out regularly.  In November he requested a letter excusing two days of work due to lower back and elbow pain after lifting heavy objects at work.  

He requested a stronger pain medication for his back in November 2016 but refused to undergo imaging to evaluate the severity of his back pain and radiculopathy.  In June 2017 the Veteran reported doing well and physical examination revealed no tenderness to the lower back and a normal gait.  In September the Veteran attended an employment physical for continued work as a civilian police officer.  He denied any medical issues or concerns and reported that he has the functional ability to perform his required tasks and denied any history of musculoskeletal complaints.  The examiner noted that the was not on a profile or limited duty chit.  The review of systems denied back pain and the physical findings reported a normal gait and stance, normal reflexes, no lower extremity weakness, and no sensory abnormalities.  The examiner noted that the Veteran engages in 150 minutes of moderate intensity exercise and muscle strength activities twice a week.  The examiner reported that the Veteran did not have a significant past medical history with no existing medical conditions to preclude meeting the functional requirements of his employment.  He was found fit for law enforcement duties. 

In May 2019 he reported low back pain described as an occasional sharp pain in the right upper thigh aggravated by prolonged sitting and standing.  The Veteran underwent imaging of his back, which revealed mild to moderate changes at L5-S1.  In October he complained of lower back pain and leg numbness after standing for 15 minutes resulting in a fall.  

The evidence includes Social Security Administration (SSA) records.  While SSA records are not controlling for VA determinations, they may be pertinent to VA claims.  Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  The Veteran was found disabled due to his chronic back pain and headaches beginning February 15, 2007.  The SSA decision found the Veteran to be quite limited in his activities of daily living, relying on family to assist based on his statement, which were deemed credible.  The Board considered the SSA findings, but as noted they are not controlling for VA purposes.  Based on the reasons discussed below, specifically concerning the Veteran’s credibility and his employment throughout the appeal period, the Board does not find the SSA findings persuasive or probative.  

When making a decision, the Board must consider all the evidence of record, to include lay statements and assess their competency and credibility.  38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In weighing credibility, VA may consider internal inconsistency, facial plausibility, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995).  

While the Veteran may be competent to describe the particular symptoms from which he suffers, the record establishes a pattern of not only inconsistent reporting but contradictory reporting.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the Board can consider bias in lay evidence and conflicting statements of the veteran in weighting credibility); Caluza v, 7 Vet. App. at 511.  

The evidence reveals two different pictures of the severity of the alleged back condition.  At the VA examinations the Veteran reported flare-ups described as intolerably intense pain and weakness, daily pain, the inability to stand or walk without a cane, functional loss described as the inability to walk more than 25 to 50 yards, sit no more than 10 minutes, and stand no more than 15 minutes.  Conversely, at his employment related physicals and appointments the Veteran is pain free, engaging in 150 minutes of moderate intensity exercise and muscle strength activities twice a week and denying back pain and neurological symptoms.  While he disclosed having a back problem in the past, he reported that it was successfully rehabbed and is managed with an exercise regime focused on core and back strength.  The examination reports describe him as in excellent health with no physical limitations and no significant past medical history with no existing medical conditions to preclude meeting the functional requirements of his employment.  

Most notably, the November 2012 examiner reported flexion limited to 40 degrees with repetitive use with numerous functional limitations to include, but not limited to,  walking about a block with a cane, sitting less than 20 minutes and standing less than 10 minutes with a cane at a time.  Conversely, the same month, at the November 2012 flight medical clinic the Veteran reported being pain free and described his back problem as being successfully rehabbed and managed with exercise and had a normal examination with no limiting conditions or handicap.  

At the pre-employment physical in July 2015, the Veteran was in excellent health with no physical limitations for his new job requirement and he reported engaging in 150 minutes of moderate intensity exercise and muscle strength activities twice a week.  Yet at the March 2016 VA examination the Veteran had flexion limited to 20 degrees and the examiner concluded that his back condition made employment requiring lifting, carrying, standing or stair essentially impossible.  But then at the September 2017 employment physical for continued work as a civilian police officer the Veteran denied any medical issues or concerns and reported having the functional ability to perform his required tasks.  The examiner noted that he was not on a limited duty chit and did not have a significant past medical history with no existing medical conditions to preclude meeting the functional requirements of his employment.

Therefore, the Board finds the Veteran’s statements made in support of his claim are not credible and are afforded no probative weight.  Furthermore, the inconsistency of the range of motion findings in the medical records and the March 2018 examiner’s observation of the Veteran having limited range of motion for testing purposes but displaying almost full range of motion in his spontaneous movements call into question the reliability of range of motion testing conducted for purpose of VA disability compensation.

The Board notes that the employment related medical records were not associated with the file prior to the July 2016, January 2014, and November 2012 VA examinations; thus, reducing the probative value of the findings of the examiners.  However, the Board finds the examination report of the March 2018 VA examiner to be highly persuasive and affords it significant probative weight.  The examiner reviewed the file, to include the employment related physicals and discussed the conflicting medical records as well as the conflicting findings observed during the in-person evaluation.  

The Veteran is currently rated at 40 percent for his back condition, which contemplates forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  As discussed above, the Board finds the Veteran is not credible and the range of motion findings at the VA examinations are inconsistent with the medical records.  Regardless of the inconsistent findings, the evidence does not establish unfavorable ankylosis, which is required for the next higher rating.  Furthermore, the Veteran denied functional limitations and did not have any limiting conditions precluding his duties as a civilian police officer at his November 2012, July 2015 and September 2017 physicals.  As such, the Board finds that an increased rating is not warranted.  

The Board also finds that the preponderance of the evidence is against a rating in excess of 40 percent for IVDS based on incapacitating episodes.  While the record contains conflicting findings regarding the diagnosis of IVDS, the evidence does not include prescribed bed rest by a physician for a duration that meets the criteria for a higher rating.  

Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality, other than radiculopathy of the right lower extremity associated with his spine disability.

For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for back condition.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

2. Entitlement to a rating in excess of 60 percent prior to January 7, 2014 and in excess of 20 percent thereafter for radiculopathy affecting the sciatic nerve of the right lower extremity and a rating in excess of 20 percent for radiculopathy affecting the femoral nerve of the right lower extremity 

The Veteran contends he is entitled to a higher rating for radiculopathy of the right lower extremity.  

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520.  (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.).  Under these criteria, mild incomplete paralysis is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Moderately severe incomplete paralysis is rated as 40 percent disabling.  Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling.  Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling.  38 C.F.R. § 4.124a.  

Paralysis of the femoral is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526.  Under these criteria, mild incomplete paralysis is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Severe incomplete paralysis is rated as 30 percent disabling.  Complete paralysis of quadriceps extensor muscles is rated at 40 percent disabling.  38 C.F.R. § 4.124a.  

The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule.  Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance.  38 C.F.R. § 4.120.  Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124.

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree.  The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.”  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017).  

The Board incorporates by reference the medical history and analysis, to include the credibility findings, discussed in detail above for entitlement to an increased rating for a back condition.  

The November 2012 examiner found severe symptoms of constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness of the right lower extremity.  The examiner concluded there was severe radiculopathy affecting the femoral and sciatic nerves.  The January 2014 examiner also found severe radiculopathy affecting the femoral and sciatic nerves but only noted symptoms of moderate intermittent pain, severe paresthesias and/or dysesthesias and severe numbness.  The March 2016 examiner reported severe intermittent pain, mild paresthesias and/or dysesthesias and moderate numbness concluding there was severe radiculopathy affecting the femoral and sciatic nerves.  While the March 2018 found no radicular symptoms, the examiner noted that radiculopathies can wax and wane and frequently resolve.  The Board again notes that the Veteran underwent medical evaluations for employment in November 2012, July 2015 and September 2017, which reported normal results from sensory and reflex examinations with no observed right leg weakness, and normal gait and balance.

Prior to January 7, 2014 the Veteran had a 60 percent rating for severe incomplete paralysis impairment with marked muscular atrophy radiculopathy affecting the sciatic nerve.  The next higher rating requires complete paralysis resulting in the foot dropping and dangling with no active movement possible of muscles below the knee.  The Board finds that at no point during the appeal period is there evidence of complete paralysis of the sciatic nerve.  Furthermore, the medical evidence does not establish marked muscular atrophy of the right lower extremity.  At most, the November 2012 examiner reported a difference of 0.5 centimeters on the atrophied side stating that although the right calf muscle appears flattened when compared to the left, the actual circumference is not significantly reduced.  Therefore, as the evidence does not even contain objective findings of marked muscular atrophy, a rating in excess of 60 percent is not warranted.  

For the period from January 7, 2014 the Veteran is rated at 20 percent for moderate radiculopathy affecting the sciatic nerve.  In order to warrant the next higher rating of 40 percent, the evidence must reveal moderately severe radiculopathy.  The January 2014 examiner reported symptoms of severe intermittent pain, mild paresthesias and/or dysesthesias and moderate numbness and the March 2016 examiner noted severe intermittent pain, mild paresthesias and/or dysesthesias and moderate numbness.  Conversely, the July 2015 and September 2017 employment evaluations and the March 2018 examiner found no symptoms and reported all normal findings.  

Therefore, when considering the overall severity and frequency of the Veteran’s symptoms, the Board finds that the overall disability picture is most consistent with the criteria contemplated by a 20 percent rating for moderate radiculopathy of the sciatic nerve.  While the Veteran displayed severe intermittent pain in January 2014 and March 2016, he displayed and reported no symptoms in July 2015, September 2017 and March 2018.  The Board notes that the medical records include complaints of numbness and tingling of the right leg, but as the Veteran again provided inconsistent reporting of his symptoms; specifically denying neurological symptoms at employment physicals with examinations revealing a normal gait but complaining of numbness and requiring regular use of a cane at other appointments, the Board does not afford the Veteran’s statements any probative weight.  As such, the Veteran’s symptoms of radiculopathy, are most consistent with the criteria contemplated by moderate radiculopathy.  

For the entire appeal period the Veteran is rated at 20 percent for moderate radiculopathy of the femoral nerve.  In order to warrant the next higher rating, the evidence must establish severe incomplete paralysis of the femoral nerve.  As discussed above, the VA examiners, except the March 2018 examiner, found severe radiculopathy but reported fluctuating severity of the related symptoms.  Furthermore, the employment medical records reveal normal examinations and no indication of functional limitations or complaints related to radiculopathy.  As the Veteran’s statements are not credible, the subjective findings of record are of limited probative value.  Therefore, when considering the fluctuating symptoms and inconsistent findings of sensory and reflex examinations, the Board concludes that the Veteran’s current rating for moderate incomplete paralysis is appropriate.

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for increased ratings for radiculopathy of the sciatic and femoral nerve of the right lower extremity.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

3. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome with degenerative arthritis 

The Veteran filed a claim on January 15, 2016 requesting TDIU due to his service-connected back, knee and foot conditions.  The Veteran underwent a VA examination for his left knee in March 2016 and received a reduction in rating from 20 percent to 10 percent in the May 2016 rating decision.  In response the Veteran filed a claim received June 24, 2016 requesting an increased rating for his left knee condition and a notice of disagreement received October 19, 2016 expressing disagreement with the evaluation and effective date assigned in the May 2016 rating decision.

The Veteran’s left knee condition is currently rated at 10 percent effective March 28, 2016 under diagnostic code 5260 for limitation of flexion.  The Board also notes that the Veteran received a separate rating of 10 percent for recurrent subluxation of the left knee in the October 2020 rating decision effective June 12, 2020.  

First, the Board notes that in rating reductions, when VA contemplates reducing an evaluation for a service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance.  38 C.F.R. § 3.105 (e).  However, in this case, the procedural requirements of 38 C.F.R. § 3.105 (e) are not applicable because the May 2016 rating decision did not reduce the Veteran’s overall current compensation payments.  See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010).  In Tatum, the Court explained that the plain meaning of 38 C.F.R. § 3.105 (e) was that such notice is warranted only where there is a reduction in compensation payments currently being made.  Id.  Similarly, in the precedential opinion VAOPGCPREC 71-91 (Nov. 1991), the General Counsel for VA held that the provisions of 38 C.F.R. § 3.105 (e) do not apply where there is no reduction in the amount of compensation payable.   

The Veteran’s left knee condition is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg.  Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees.  A 10 percent rating is warranted for flexion limited to 45 degrees.  A 20 percent rating is warranted for flexion limited to 30 degrees.  A 30 percent rating is warranted for flexion limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.

The Veteran attended a VA examination for his left knee in March 2016 and reported pain, stiffness, swelling and a sensation of instability despite a knee brace. The Veteran denied flare-ups but claimed functional loss described as the inability to sit for more than five to ten minutes and stand for more than 10 to 15 minutes and climb no more than one flight of stairs.  Range of motion testing revealed flexion to 115 degrees and extension from 115 degrees to zero with pain noted on flexion.  Repetitive use testing resulted in additional limitation of flexion to 105 degrees.  The Veteran had pain on weight-bearing, mild parapatellar tenderness, and crepitus.  The examiner reported that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time resulting in additional limitation of flexion to 100 degrees.  The Veteran had reduced muscle strength of four out of five and no muscle atrophy or ankylosis.  The examiner found no history of recurrent subluxation, lateral instability or recurrent effusion.  Joint stability testing revealed no instability and there were no meniscus conditions.  The Veteran used a knee brace constantly and a cane regularly.  The examiner reported that imaging of the knee revealed mild degenerative osteoarthritis, which is a progression from his patellofemoral syndrome.  Functionally, the examiner concluded that the knee condition made any active employment difficult due to limitations in standing and sitting but sedentary employment was possible.    

The Veteran attended another VA examination in July 2016 and reported throbbing left knee pain.  He denied flare-ups but reported functional loss described as the inability to walk, hike, or sit for very long or to play sports.  Range of motion testing revealed flexion to 130 degrees and extension from 130 degrees to zero with pain on flexion resulting in an antalgic gait.  Repetitive use testing was not conducted.  The Veteran had pain with weight-bearing, crepitus, tenderness lateral and medical to the patella with clicking during range of motion.  Due to the inability to perform range of motion estimates due to pain, weakness, fatigability or incoordination with repeated use over a period of time were not provided.  He had reduced muscle strength of four out five, no muscle atrophy, and no ankylosis.  The examiner found no history of recurrent subluxation, lateral instability or recurrent effusion.  Joint stability testing revealed no instability and there were no meniscus conditions.  The examiner noted constant use of a cane and brace and stated that the Veteran complained severely of pain during the entire examination and walked very slowly with a shuffling gait with the aid of his cane.  Functionally, the examiner concluded that the Veteran would be unable to perform a job that required walking over a block at a time, or prolonged sitting.

In March 2018 the Veteran underwent a VA examination.  The examiner reported that x-rays of the knees taken at the examination were read by the radiologist as normal, but the radiographic appearance of the knees is essentially the same; thus, the previous diagnosis of arthritis is incorrect and right knee sprain is more appropriate.  The examiner also noted the employment related physicals from July 2015 and September 2017 in which the Veteran denied health limitations and did not have limited mobility.  The examiner reported that active range of motion could not be objectively evaluated as range of motion while being specifically examined was not consistent with spontaneous motion during other aspects of the examination, which demonstrated near full range of motion.  Additionally, there was marked pain behavior when range of motion was specifically being evaluated; which was not present with range of motion at other aspects of the examination.  There was subjective tenderness at the left medial and lateral joint lines, and in the musculature proximal and lateral to the right patella, which was not objective.  Patellar compression maneuvers were equivocal.  There was no swelling, effusion, instability, or crepitus.  The examiner reported no pain on examination, no tenderness to palpation and no crepitus.  Findings related to pain, weakness, fatigability and incoordination were not made as inconsistency in the examination made evaluation of functional ability speculative.  The Veteran had normal muscle strength, no ankylosis, no history of recurrent subluxation, lateral instability or recurrent effusion.  Joint stability testing revealed no instability and there were no meniscus conditions.  The examiner found no functional limitations and reported that the findings of the March 2016 examiner are not credible in light of the pre-employment and employment physical, which were associated with the record subsequent to the 2016 examination.  Additionally, the examiner stated that the Veteran’s reported history of functional activity was not consistent with the medical records and his clinical examination was not objective with regards to the findings of pain and pathology.  

The Veteran attended a VA examination in June 2020 and reported symptoms of limited motion without a brace and pain.  He denied current treatment but reported being unable to bear significant weight and limitations in bending, kneeling, running and walking for extended periods.  Range of motion testing revealed flexion to 80 degrees and extension from 80 degrees to zero with pain on flexion, pain with weight-bearing and crepitus.  There was no additional loss with repetitive use testing or due to pain, weakness, fatigability or incoordination.  He had reduced muscle strength of four out of five, no muscle atrophy, no ankylosis, and a history of slight recurrent subluxation and lateral instability.  There were no meniscus conditions and the Veteran reported regular use of a brace and cane.  Functionally, the examiner repeated the Veteran’s self-reported limitations and noted pain on passive range of motion and non-weight bearing.  

Review of the medical records reveal that the Veteran underwent a pre-employment physical in July 2015, which described him as in excellent health with no physical limitations for his new job requirement.  The Veteran reported twisting his knee the prior week but returning to his regular activities and denied any recent health issues or concerns.  The physical findings reported no knee redness or stiffness, no clicking sensation and the kneecap did not seem out of place.  He did not have muscle spasms, there was no pain elicited by motion and his knees demonstrated normal movement.  The examiner noted that the Veteran engaged in 150 minutes of moderate intensity exercise and muscle strength activities twice a week.  In October 2015 the Veteran reported employment with the federal government and working out regularly.  

He had complaints of pain with prolonged standing, weight-bearing, and stairs in August 2016; an MRI was ordered but never completed.  At an orthopedic consultation for treatment of left knee pain he complained of dull and achy pain, which was throbbing at rest but also turned into a sharp pain with some numbness and tingling.  He denied any locking but reported instability with weight-bearing.  The Veteran had tenderness to palpation, reduced muscle strength of four out of five, and crepitus but full range of motion with anterior and posterior drawer testing demonstrating a stable knee.      

In September 2017 the Veteran attended an employment physical for continued work as a civilian police officer.  He denied any medical issues or concerns and reported that he has the functional ability to perform his required tasks.  He denied any history of musculoskeletal complaints.  The examiner noted that the was not on a profile or limited duty chit.  The physical findings reported a normal gait and stance, normal reflexes, no lower extremity weakness, and no sensory abnormalities.  The examiner noted that the Veteran engaged in 150 minutes of moderate intensity exercise and muscle strength activities twice a week.  The examiner reported that the Veteran did not have a significant past medical history with no existing medical conditions to preclude meeting the functional requirements of his employment.  He was found fit for law enforcement duties. 

The Veteran reported knee pain in May 2019 described as dull and achy, aggravated by prolonged standing.  The physical examination revealed normal muscle strength, no crepitus and good range of motion.  Imaging studies revealed no significant degenerative changes but mild lateral subluxation.  In June the Veteran had full range of motion and a normal gait.  The Veteran reported knee pain and use of a cane in October 2020 but in November he was described as independent in all activities of daily living.  

The Board incorporates by reference the credibility analysis under entitlement to an increased rating for back condition.  The Veteran also made inconsistent and contradictory statements to the VA examiners and the examiners for employment physicals related to his knee condition.  Specifically, in July 2015 while the Veteran reported twisting his knee the prior week, he stated that he returned to his regular activities and denied any recent health issues or concerns; however, at the July 2016 examination the Veteran complained severely of pain during the entire examination and walked very slowly with a shuffling gait with the aid of his cane.  Conversely, at the September 2017 employment physical, he denied any history of musculoskeletal complaints, had a normal gait and reported engaging in 150 minutes of moderate intensity exercise and muscle strength activities twice a week.  Health care professionals have noted the inconsistencies based on their training.   As such, the Board finds the Veteran’s statements regarding the severity of his knee condition not credible and afford them no weight.  Caluza v, 7 Vet. App. at 511.  

Furthermore, as the March 2016 and July 2016 examiners did not have access to the employment physical records, their findings have reduced probative value.  

In order to warrant a rating of 20 percent, the evidence must establish flexion limited to 30 degrees.  The Board acknowledges the Veteran’s lay reports of symptoms of pain and functional limitations but due to the repeated inconsistent reporting by the Veteran, he is not credible, and his statements are afforded no weight.  As such, a higher rating is not warranted based solely on the Veteran’s lay reports.  

The medical records indicate that the Veteran had normal range of motion and at the March 2018 examination his spontaneous motions demonstrated near full range of motion.  Furthermore, the range of motion findings at the March and July 2016 and June 2020 VA examinations reveal that flexion was limited to, at most, 80 degrees, which does not even warrant a compensable rating.  As such, the Board finds that an increased rating for limitation of flexion is not warranted.

The Veteran received a separate grant for slight recurrent subluxation and lateral instability effective June 12, 2020.  Under DC 5257 a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, 20 percent for moderate and 30 percent for severe.  As discussed, the Veteran’s lay statements regarding his symptomology are not credible and afforded no weight.  Therefore, lay reports of knee instability by the Veteran alone are not sufficient to establish lateral instability prior to June 12, 2020.  As such, while the Veteran reported a sensation of instability in March 2016, neither the March or July 2016 examiner nor the March 2018 examiner found recurrent subluxation or lateral instability and joint stability tests were normal.  However, the May 20, 2019 x-rays of the left knee reflected mild lateral subluxation of the patella.  Therefore, the Board finds the Veteran is entitled to a 10 percent rating for slight lateral subluxation effective May 20, 2019.  

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  

Throughout the entire period at issue, the Board considered whether separate compensable evaluations are warranted for the left knee under other applicable provisions of the Diagnostic Code.  For the following reasons, the Veteran does not warrant a separate rating for his left knee condition.   

The medical evidence establishes that the Veteran has measurable range of motion in his left knee, thus ankylosis of the knee is not shown and an evaluation under DC 5256 is not warranted.  The evidence does not establish limitation of motion of extension; thus, the Veteran is not entitled to a rating under DC 5261.  Finally, the record does not reflect dislocated semilunar cartilage to warrant an evaluation under DC 5258, removal of semilunar cartilage to warrant an evaluation under DC 5259, or an impairment of the tibia and fibula or genu recurvatum to warrant an evaluation under DCs 5262 or 5263.  See 38 C.F.R. § 4.71a.    

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for limitation of flexion.  However, the Veteran is entitled to a 10 percent rating for recurrent subluxation effective May 20, 2019.  

The Board notes that the Veteran indicated a disagreement with the effective date assigned in the May 2016 rating decision reducing his rating to 10 percent.  Neither the Veteran nor his representative provided argument to clarify their disagreement.  The Board agrees that the evidence indicates improvement prior to the March 28, 2016 effective date; however, the Board will not disturb the findings of the May 2016 rating decision as that will result in further reduction.  The claim is denied.

3. Entitlement to a rating in excess of 30 percent for insomnia 

The Veteran contends he is entitled to a rating of 70 percent for insomnia due to symptoms most consistent with an occupational and social impairment with deficiencies in most areas.

The Veteran’s insomnia is evaluated under diagnostic code 9421.  Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria.  Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 

A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning.

A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment.

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation).

A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.

The Veteran attended a VA examination in July 2016 and reported significant disruption to his sleep due to worries and physical discomfort.  He described waking up three to four times a night and staying awake for minutes to hours.  He reported achieving four hours of sleep a night on a good night and no sleep on a bad night, which occurs once a week.  He also complained of daytime fatigue and irritability.  The examiner noted diagnoses of adjustment disorder and insomnia.  The examiner attributed mid-cycle awakenings due to anxiety and pain and discomfort to insomnia and concluded that insomnia results in an occupational and social impairment due to mild or transient symptoms, reported as chronic sleep impairment.  The examiner noted inconsistencies in the Veteran’s reporting and reported that his cognitive screening results were within normal limits.  The examiner noted anxiety and stress along with periods of low mood and irritability associated with multiple psychosocial pressures.  

In July 2020 the Veteran attended a VA examination and again received diagnoses of adjustment disorder and insomnia.  The examiner attributed chronic sleep impairment to insomnia noting a likely clinical association between these disorders as anxiety and depression can affect the ability to sleep.  The examiner concluded that the Veteran’s diagnoses results in an occupational and social impairment with occasional decrease in work efficiency and it is not possible to differentiate the individual impact on social and occupational functioning without mere speculation.  The examiner noted a sleep medicine consultation where the Veteran reported intermittent waking due to problems with breathing and feeling tired and was referred for a sleep study to rule out sleep apnea.  At the examination the Veteran again reported intermittent waking with anxiety exacerbated by his medical conditions.  He reported obtaining four hours of sleep with daytime fatigue and irritability.  

Review of the medical records reveal complaints of restless sleep in April 2015, with one nocturnal awakening to void and falling back asleep within minutes.  The Veteran attended a sleep medicine consultation for concerns of obstructive sleep apnea in May 2019 and reported waking up at least two to three times a night due to breathing and being tired at work and occasionally falling asleep.  A December sleep study revealed a diagnosis of moderate obstructive sleep apnea.  

The Veteran is currently rated at 30 percent for an occupational and social impairment with occasional decrease in work efficiency due to his chronic sleep impairment.  This is consistent with the findings of the VA examiners and the medical records, which reveal complaints of nocturnal awakenings averaging from one to three times a night and daytime fatigue.  The evidence is insufficient to warrant a higher rating for either an occupational and social impairment with reduced reliability and productivity, which is contemplated by a 50 percent rating or for an occupational and social impairment with deficiencies in most areas, which is contemplated by a 70 percent rating.  At most, the VA examiner found an occupational and social impairment with occasional decrease due to chronic sleep impairment, anxiety, and depression which are all contemplated by the criteria of his current 30 percent rating.  Furthermore, none of the Veteran’s employment physicals reported difficulties due to daytime fatigue or found any functional limitations related to insomnia.

Therefore, the Board finds the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for insomnia.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

4. Entitlement to a rating in excess of 20 percent for right foot condition 

The Veteran contends he is entitled to a rating in excess of 20 percent for his right foot condition 

The Veteran right foot condition is rated under diagnostic codes 5010-5276.  .  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2016).

DC 5010 directs that arthritis, due to trauma and substantiated by x-rays be rated under DC 5003 for degenerative arthritis.  According to DC 5003, degenerative arthritis substantiated by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of two or more major or minor joints, with occasional incapacitating exacerbations.

The Veteran’s plantar fasciitis is rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot.  Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support.  A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral.  A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.  A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities.  A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.  A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.71a, Diagnostic Code 5276.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

The Veteran attended a VA examination in April 2016 for right foot plantar fasciitis and heel spur.  The Veteran reported foot pain when he walks barefoot or without shoe insoles but denied flare-ups.  Functionally, the Veteran stated that he can only stand for 10 to 15 minutes.  Examination revealed pain on use that is accentuated, pain on manipulation, but no swelling or characteristic callouses.  The Veteran reported that arch supports do not relieve his symptoms.  He displayed decreased longitudinal arch height on weight-bearing but did not have a marked deformity or marked pronation.  The weight-bearing line did not fall over or medial to the great toe, there was no lower extremity deformity causing alteration to the weight-bearing line, no inward bowing of the Achilles tendon, and no marked inward displacement or severe spasm of the Achilles tendon on manipulation.  The examiner reported pain on weight-bearing, disturbance of locomotion, and interference with standing but no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot is used repeatedly over a period of time.  Functionally, the examiner reported that standing is limited to 10 to 15 minutes and does not preclude employment that is seated or sedentary.  

The Veteran attended another VA examination in March 2018 and reported being limited to standing or walking for about 8 minutes before he needs to sit down, sitting up to 20 minutes if he can shift before he needs to stand up and he estimated that his total weight bearing time in a day is about two hours.  The examiner noted the employment related physicals in which the Veteran denied health limitations and did not have limited mobility.  The examiner explained that the March 2016 x-rays finding mild degenerative changes at the MTP joint are incidental findings as there are no correlating clinical findings and are not related to plantar fasciitis.  The examiner noted moderate pain behavior during the history and marked pain during examination with mild to moderate tenderness to palpation to the right heel and decreased sensation to light touch in a non-dermatomal and non-peripheral nerve distribution in the right lower extremity, which were determined to not be objective findings.  The Veteran described his pain as feeling like thumb tacks and reported being unable to walk barefoot or with sandals, jump or stand on his toes or heels.  Examination revealed pain on use that is accentuated, pain on manipulation, but no swelling or characteristic callouses.  The Veteran reported relief from orthotics.  There was no extreme tenderness of plantar surfaces.  He displayed decreased longitudinal arch height on weight-bearing but did not have a marked deformity or marked pronation.  The weight-bearing line did not fall over or medial to the great toe, there was no lower extremity deformity causing alteration to the weight-bearing line, no inward bowing of the Achilles tendon, and no marked inward displacement or severe spasm of the Achilles tendon on manipulation.  The examiner reported pain on weight-bearing and disturbance of locomotion but no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot is used repeatedly over a period of time. Functionally, the examiner found no impact on his ability to perform occupational tasks.  

Review of the medical records revealed that in July 2015 the Veteran reported being in excellent health with no physical limitations for his new job requirement.  

In February 2016 the Veteran complained of pain with plantar bruising and requested new orthotics.  The examiner noted that the Veteran is on his feet all day due to work, he had pain on palpation but no pain or crepitus with range of motion.  In May he reported that his pain was managed by arch supports and stretching and he was having some success with conservative treatment options.  He did complain of worsening right heel pain due to a bone spur.  The examiner reported no pain or crepitus with active, passive or pedal range of motion but there was very limited dorsiflexion with non-weight bearing.  He had a low medial arch, but normal muscle strength and sensation was intact.  In September 2017 at his employment examination for continued work as a police officer, the Veteran denied any medical issues or concerns.  He reported having the functional ability to complete his occupational tasks and denied health limitations.  

In June 2019 the Veteran complained of cramping under the ball of the foot that extended to his heel sometimes if he walks flat or barefoot and that he must wear wide shoes, or it hurts.  The Veteran had pain on palpation, positive decreased navicular height upon stance and gait and positive rigid contracture of the right second digit proximal interphalangeal joint.  

The next higher rating of 30 percent under DC 5276 contemplates pronounced marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances.  

The Board finds that the Veteran’s symptoms are most closely approximated by the criteria contemplated by a 20 percent rating.  Throughout the record, the Veteran did not display any swelling or characteristic callouses, inward bowing of the Achilles tendon, no marked inward displacement or severe spasm of the Achilles tendon on manipulation or marked pronation.  However, the medical evidence did reveal pain on use that is accentuated, pain on manipulation, decreased longitudinal arch height on weight-bearing and pain on weight-bearing, which are symptoms most consistent with the criteria contemplated by 10 and 20 percent ratings.  

The Board acknowledges the Veteran’s lay reports of symptoms and functional loss due to pain.  However, the Veteran’s statements regarding the severity of his condition are again not credible due to inconsistent reporting.  The Veteran denied any health concerns or related functional impairments in July 2015 and September 2017 at his employment physicals; however, at the April 2016 VA examination he alleged only being able to stand for 10 to 15 minutes and reported being limited to standing or walking for about eight minutes at the March 2018 VA examination.  As such, the Veteran’s statements are afforded no probative weight. 

The Board notes that the Veteran reported no relief from orthotics in April 2016, which is part of the criteria contemplated for a 50 percent rating.  However, he reported relief in May 2016, denied any health concerns in September 2017 and reported relief at the March 2018 VA examination.  As such, the Veteran’s reports of no relief in April 2016 were considered but a higher rating is not warranted on that basis alone.

The Board has also considered the other Diagnostic Codes pertaining to the foot.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017).  In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them.  Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)).  The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms.  Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016).  Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule.  Id.  

The Board finds a higher rating is not warranted under a different diagnostic code.  While diagnostic code 5284 grants a 30 percent rating for severe foot injury, the Veteran’s right foot condition does not meet the criteria of severe as the Veteran obtains relief through conservative treatment and orthotics with normal examinations in July 2015 and September 2017.  

Additionally, the evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code.  See 38 C.F.R. § 4.14.

In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for right foot condition.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Effective Date

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim.  If the increase occurred after the date of claim, the effective date is the date of increase.  38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

5. Entitlement to an effective date prior to January 15, 2016 for the 20 percent rating for flat foot 

The Veteran contends he is entitled to an effective date prior to January 15, 2016 for his 20 percent rating.  Neither the Veteran nor his representative provided any statements or arguments specific to his claim or has directed the Board’s attention to any specific error of fact or law in the denials. 

The effective date of January 15, 2016 for the increased rating to 20 percent for the right foot is the date of claim.  The record does not reveal a claim for an increased rating for the right foot prior to January 15, 2016.  As such, an earlier effective date is only warranted if an increase in disability is factually ascertainable within one year from the date of claim.  

The Board incorporates the medical history of the Veteran’s right foot condition by reference.  Review of the medical records revealed that in July 2015 the Veteran reported being in excellent health with no physical limitations for his new job requirement.  The records do not contain any limitations pertaining to the right foot from January 15, 2015 to January 16, 2016; rather the evidence suggests an improvement in symptomology as the Veteran reported being in excellent health with no physical limitations.  Therefore, there is not a factually ascertainable increase in disability within a year prior to January 16, 2016.

The claim for an effective date prior to January 15, 2016 for the grant of 20 percent for right foot condition is denied.  

REASONS FOR REMAND

1. Entitlement to service connection for headaches, secondary to service connected back condition and/or insomnia   

The VA has a duty to assist, which includes providing a medical examination when necessary to make a decision on a claim.  38 C.F.R. § 3.159(c)(4)(i) (2017).  The record contains sufficient evidence to trigger the VA’s duty to assist by providing a VA examination.  However, a VA examination to discuss the nature and etiology of the Veteran’s headaches has not been provided.  Therefore, a VA examination for an opinion to determine the etiology of the Veteran’s headaches is warranted.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).      

The Board notes the record contains a positive nexus opinion from a private examiner, M.B. linking headaches to the Veteran’s service-connected back condition and insomnia.  M.B. opines that the Veteran’s back pain is a contributor to his headache pain and states that it is more likely than not that the Veteran’s service connected back and insomnia cause and permanently aggravate his headaches.  While M.B. cites to the VA examinations, she relies only on the Veteran’s subjective reports and does not discuss the conflicting evidence where the Veteran reported his back problem was resolved and denied health limitations.  As such, the opinion is inadequate as it is based on a factually incomplete premise.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value).

2. TDIU

The Veteran filed a claim received January 15, 2016 for TDIU.  In the claim the Veteran alleged becoming too disabled to work in September 2014 with his last date of full-time employment being November 2015.  However, review of the record reveals employment as a civilian police officer evidenced by pre-employment and continued employment physicals, both of which reported no functional limitations due to back condition, right foot condition or left knee condition.  There is also conflicting evidence regarding the terms of employment and causes for termination.  While the Veteran alleges term employments resulting in non-renewal due to his service-connected conditions, there is also evidence that the Veteran was terminated due to possible legal issues with his ex-wife.  

While the Board finds the Veteran to lack credibility in his reporting, the evidence of record does include memorandums on official letterhead from February 2020 reporting temporary disability accommodations stating that the Veteran will be released in September 2020 from his position if reasonable accommodations cannot be met.  As such, a remand is necessary for further development in order to determine the full extent of the Veteran’s work history, to include salary and accommodations during the appeal period and to determine whether he continues to be employed.

The matters are REMANDED for the following action:

1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture.

2. Obtain an addendum medical opinion from a medical professional with appropriate expertise.  The examiner should review the Veteran’s claims file.  If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one.

Based on a review of the record, and a new examination if necessary, the examiner must address the following:

(a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s headaches are related to active service or is caused by or aggravated by military service.

(b.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that headaches are proximately due to or the result of the Veteran’s service-connected insomnia and/or back condition?  

(b.) If the answer to (a) is negative, is it at least as likely as not that the headaches are aggravated (i.e., permanently or temporarily worsened) by insomnia and/or back condition?  

(c.) If aggravation is found, the examiner should address the following medical issues:  1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. 

The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.  

If there is a medical basis to doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions.  The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s).

If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered.  In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

3. Request the Veteran to provide IRS tax returns from 2016 through 2021 and a statement that the copy is an exact duplicate of the return filed with the IRS.  Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return," which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request the applicable tax returns and submit them to VA.  If he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above.

4. Obtain an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability.  Any additional development deemed necessary to adjudicate the issue of entitlement to TDIU should be completed.

5. Finally, readjudicate the appeal.  If the benefits sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board.

 

 

G. A. WASIK

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. A. Prinsen

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.