Citation Nr: 21009090 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 18-17 614 DATE: February 18, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a bilateral ankle disability is denied. Entitlement to service connection for a dermatological fungal disability of the bilateral foot is granted. Entitlement to an initial disability rating in excess of 40 percent for spinal stenosis with degenerative joint disease (DJD) of the lumbar spine is denied. REMANDED Entitlement to service connection for a bilateral foot disorder, to include pes planus, is remanded. FINDINGS OF FACT 1. The Veteran has not been to shown to have a left knee disorder that manifested during service, within one year thereafter, or is otherwise causally or etiologically related to service. 2. The Veteran’s bilateral ankle strain is not due to or a result of his active service. 3. The evidence is at least evenly balanced as to whether the Veteran’s dermatologic disability is related to the in-service dermatologic disabilities. 4. Throughout the entire period on appeal, the Veteran’s lumbar spine disability was not manifested by ankylosis or incapacitating episodes due to intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a bilateral ankle disability are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for dermatological fungal disability is warranted. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for an initial disability rating in excess of 40 percent for lumbar spine DJD have not been met at any time during the appeal period. 38 U.S.C. §§ 1110, 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1977 to December 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 and a March 2017 rating decision. In a November 2018 Board decision, the Board remanded the claims listed above, as well as claims for service connection for a right shoulder disability, an initial disability rating in excess of 20 percent for a lumbar spine disability, and entitlement to a total disability rating based on individual unemployability (TDIU), for further development. In an October 2020 rating decision, the RO granted entitlement to an initial disability rating of 40 percent for spinal stenosis with DJD of the lumbar spine effective July 20, 2016, the date of the claim. The Veteran had previously indicated that he would be satisfied with a 40 percent disability rating for the lumbar spine disability. See October 2018 Notice of Disagreement. However, he has not expressed satisfaction with the award of the 40 percent rating since the October 2020 rating decision or otherwise withdrawn his appeal. As such, he is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, in rating decisions dated in October 2020, the RO granted entitlement to service connection for right shoulder arthoplasty and entitlement to a TDIU effective from July 20, 2016. The grant of service connection for the right shoulder disability constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). As such, this issue is no longer before the Board. With respect to the TDIU award, the Board also notes that July 20, 2016 is also the effective date for the grant of entitlement to service connection for the Veteran’s lumbar spine disability; and, consequently, the earliest date a TDIU could be granted as part of the appeal for a higher initial rating for his lumbar spine disability. Therefore, the grant of a TDIU is considered a full grant of that issue insofar as it may be considered part and parcel to the increased rating issue on appeal. As such, the issue of entitlement to a TDIU is not before the Board at this time. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997); see also Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board also notes that after the October 2020 supplemental statement of the case, additional VA treatment records dated from October 2020 to February 2021 were added to the claims file. However, these additional records provide information that is either duplicative of the prior evidence of record or has no material effect on the outcome of the Veteran's increased rating claim and service connection claims adjudicated herein. As such, the Board finds that a remand for initial agency of original jurisdiction (AOJ) review of this additional evidence is not necessary, and there is no prejudice to the Veteran in proceeding with the adjudication of these claims. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). The Board initially notes that the Veteran submitted a statement arguing that he has chronic multi-symptom illness. Although records received in November 2016 indicate that the Veteran worked in a contractor role after his period of active duty service, see, e.g., June 2004 memorandum, and he received a certificate of appreciation for his support of the combined task force legion during Operation Enduring Freedom in January 2013, there is no evidence to indicate that he had a period of active service in the Southwest Asia theater of operations during the Persian Gulf War. Thus, the Veteran cannot claim service connection under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. 1. Entitlement to service connection for a left knee disability The Veteran contends that his diagnosed degenerative arthritis of the left knee is due to an in-service fall. Service treatment records (STRs) reflect that in August 1978, the Veteran was playing football and fell on his knee. On examination, he had a full range of motion (ROM). A small amount of edema was noted, and he was given ice. He was assessed with a moderate left knee and quad contusion. The December 1980 separation report of medical examination reflects a normal clinical evaluation for the lower extremities. Additionally, the concurrent separation report of medical history reflects that the Veteran selected “no” for “trick” or locked knee, broken bones, and arthritis. Post-service, VA treatment records from February 2014 include radiology imaging reflecting that there were moderate degenerative changes seen on film of the left knee. In a February 2016 statement, the Veteran reported that he twisted his knee playing football at Fort Stewart. He reported that he was issued a brace which he wore from 6 to 8 weeks and was given light duty. He reports that he continues to suffer from knee pain. The Veteran reported that he began treatment in 1986 to 1998 at the VA Medical Center (VAMC) Miami for his conditions. A July 2016 VA examination report reflects that the Veteran has arthritis, degenerative of the left knee diagnosed in February 2014. He reported that while he was in the military, he was doing a lot of running and he fell a few times and injured his knee. He reported that on one occasion, he was taken to medical and was treated with Motrin and knee brace. He reported that they kept telling him to put ice on it to help with the swelling. He reported that after separation, his knee just started getting worse. He described recurrent sensation of giving out and locking of the knee. He was subsequently diagnosed with arthritis. An August 2016 VA medical opinion report reflects that the Veteran’s diagnosis of a left knee condition is less likely than not (less than 50 percent) incurred in or caused by the left knee injury in service. The clinician noted that a physical therapy note reveals that the Veteran was seen and treated for a moderate left quadrant contusion. However, there were no further notes dealing with this episode. He stated that the December 1980 separation examination did not reveal lower extremity abnormalities. On his report of medical history, there was no swollen or painful joints, lameness, broken bones, arthritis, rheumatism, or other deformity. He marked “no” for a tricked or locked knee. There are no imaging studies of the left knee. He stated that VA treatment records did not reflect that the Veteran was treated for a continuation of the same problems that arose from military service shortly after his separation. He noted that a February 2014 left knee x-ray revealed the presence of the moderate degenerative changes in the medical compartment with slight cartilage space narrowing. Additionally, slight degenerative changes in the lateral patellofemoral compartments were noted. He reported that the service records do not demonstrate that a left knee condition was persistent while on active duty. He reported that from a medical point of view, the Veteran experienced minor self-limiting conditions which resolved. He stated that consequently, it would not be likely that complications from his military service events would be expected to resurface later on in his life. He reported that it arose in 2014, many years after service. He stated that this considerable period of time after the Veteran left the military would have severed any causal connection to the current issue. He said left knee degenerative arthritis would be expected when he was 56 years old as the knee is a weight bearing joint. He concluded that it is more likely that the cumulative effect of the wear and tear process over so many years would have been more responsible for the degenerative arthritic changes as compared to the modest resolved events in the service. Private physical therapy notes from January 2017 reflect that the Veteran reported pain, stiffness, and weakness in the bilateral knees due to exercise use of muscles in the military. He was a heavy machine operator for 6 years and the pain started in 1977. In May 2020, radiology imaging of the left knee revealed intra-articular loose body and diffuse mild soft tissue swelling. VA treatment records were reviewed, and the Veteran continued to complain of knee pain from 2014 and thereafter. Upon review of the evidence of record, the Board finds that service connection for a left knee disability is not warranted. Initially, as noted above in the radiology report, the Veteran has a current diagnosis of degenerative arthritis of the left knee. As the current disability requirement has been met, the question remains as to whether there is a nexus between the disability and service. Based on a review of the available records, his particular expertise, and medical literature, the examiner found that the Veteran’s left knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner noted the Veteran’s in-service knee and quad injury and provide a significant rationale for his conclusion that the Veteran’s current disability was not due to the in-service injury. Notably, the Veteran separated service with no complaint of a knee disability and his disability did not arise until 2014. The examiner attributed his arthritis to his age. As the physician explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his 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). To the extent that the Veteran, including through his representative, has opined that his left knee disability is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s contentions as to the etiology of his left knee disability relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder). The Veteran’s statements are therefore not competent in this regard. To the extent that these lay statements are credible, the Board finds the specific, reasoned opinion of the VA clinician to be of greater probative weight than the Veteran’s more general lay assertions. As arthritis is considered to be a chronic disease under 38 C.F.R. § 3.309(a), the Board has also considered whether service connection for the disorder may be granted on a presumptive basis. However, arthritis in the left knee was not documented during the Veteran's active duty service, and there was no in-service manifestation sufficient to identify the disease entity. The pertinent regulations require that manifestations are "noted" in the service records, and that is not the case in this instance. The STRs reflect there was no evidence of arthritis during service. In light of the above discussion, the Board finds that the most probative evidence of record reflects that the Veteran's arthritis in left knee did not manifest until many years after the Veteran's active duty service. As a result, the Veteran is not entitled to service connection for this disorder on a presumptive basis, either as a chronic disease during service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, chronicity is not established in service or within a year of separation. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim of service connection for a left knee disability. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a bilateral ankle disability The Veteran contends that his bilateral ankle disability is due to his active military service. STRs reflect that in November 1980, the Veteran had an injury to his right ankle. There was swelling and bruising. He was assessed with a soft tissue injury. There are no notations of injury or complaint of pain for the left ankle. The December 1980 separation report of medical examination reflects a normal clinical evaluation for the lower extremities. Additionally, the concurrent separation report of medical history reflects that the Veteran selected “no” for broken bones and arthritis. Post-service, February 2014 radiology imaging did not reveal any significant abnormalities of the ankle. In a February 2016 statement, the Veteran reported medical complications with both ankles at Ft. Jackson and Ft. Stewart. He reported that he was provided ace wraps, pain medications, and light duties. He noted that a November 1980 service treatment record discussed above reflects that he complained of ankle pain. Private physical therapy notes from January 2017 reflect that the Veteran reported pain, stiffness, and weakness in the bilateral ankles due to exercise use of muscles in the military. He was a heavy machine operator for 6 years and the pain started in 1977. A March 2019 VA examination report reflects that the Veteran has a diagnosis of bilateral ankle sprain. The examiner noted the date of diagnosis for the right ankle of 2010 and the left ankle of 2019. The Veteran reported gradual onset of worsening bilateral ankle pain from 1978. The examiner found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he reported that STRs from 1980 document right ankle sprain without further treatment. He reported that there is not enough medical evidence to support a claimed condition as chronicity has not been established. Furthermore, he found that STRs make no mention of left ankle problems. He stated that the most recent radiology imaging from 2014 reflects a normal impression. VA treatment records reflect that the Veteran sporadically continued to complain of bilateral ankle pain. Upon review of the evidence of record, the Board finds that service connection for a bilateral ankle disability is not warranted. Initially, the Veteran has a current diagnosis of bilateral ankle sprain as reflected by the medical evidence of record. As the current disability requirement has been met, the question remains as to whether there is a nexus between the disability and service. Based on a review of the available records, his particular expertise, and medical literature, the examiner found that the Veteran’s bilateral ankle disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner noted the in-service injury to the right ankle and provided an adequate rationale for his conclusion that the Veteran’s disability was not due to service. Notably, the Veteran had no left ankle injuries in service. As the physician explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his 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). To the extent that the Veteran, including through his representative, has opined that his bilateral ankle disability is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s contentions as to the etiology of his bilateral ankle disability relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder). The Veteran’s statements are therefore not competent in this regard. To the extent that these lay statements are credible, the Board finds the specific, reasoned opinion of the VA examiner to be of greater probative weight than the Veteran’s more general lay assertions. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim of service connection for a bilateral ankle disability. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a dermatological fungal disability of the bilateral foot The Veteran contends that his tinea pedis is due to his active military service. STRs reflect that the Veteran was seen numerous times in podiatry for complaint of corns and skin issues on his feet and toes, bilaterally beginning in January 1978 through 1980. However, on his separation report of medical examination in December 1980, the clinician noted a normal clinical evaluation of the skin. Additionally, the Veteran did not report skin issues on his separation report of medical history. Post-service, in January 1998, the Veteran was diagnosed with tinea pedis and cellulitis initiated by fungal infection. His chief complaint was an infectious fungal infection of his right fifth toe. He stated that he has often had this infection, but it has never been this bad. In March 2003, the Veteran’s primary care physician noted that the Veteran first had tinea pedis in the 1970’s as a result of military boots and this has been a recurrent problem since then, although treated several times. He had extensive infection with cellulitis in 1998. He was assessed with tinea pedis and tinea unguium. VA treatment records from 2010 reveal that the Veteran continued to be treated for fungal infections between his toes and on his feet. The Veteran presented with cellulitis/gas gangrene of the right toe. The clinician noted that he has a history of fungal infections in intertriginous zones of both feet. In a February 2016 statement, the Veteran reported that when he entered the Army, he was issued a pair of boots and dress shoes that were too small for his feet. He reported that he complained of the size at that time, but he was not issued a new pair of shoes until after he started having major foot problems. He reported that he was forced to do physical therapy and run in the boots which were too small. He eventually began to develop infections, raw spots, blisters, fungal conditions, and calluses. He reported that he had the calluses removed from his feet. He reported that he was also treated for the fungal conditions/infections. He reported that STRs from 1977 through 1980 show in-service bilateral foot disabilities. The July 2016 VA examination report reflects that the Veteran has a diagnosis of tinea pedis from 1977 and onychomycosis. The Veteran reported that while he was stationed at Fort Stewart in 1977, he was exposed to swamp area in the woods and developed a fungal infection on his feet. He reported that despite treatment which included topical creams/powder, the condition did not completely heal. He also stated that he has since experienced a near constant fungal infection of the feet and nails with recurrent flare-ups. He reported that over the years, multiple treatment modalities have been used with limited success. The examiner reported that findings in the medical record supports some of the general medical history given by the Veteran. The examiner noted that the Veteran has a significant history of bilateral tinea pedis since the 1970’s with recurrent exacerbation despite treatment. The recurrent aggravation has persisted since despite treatment with systemic and topical medication. In an August 2016 VA medical opinion report, the clinician opined that the Veteran’s diagnosis of dermatological fungal condition of the bilateral feet is less likely than not (less than 50 percent) incurred in or caused by the foot complaints, infections during service. As rationale, he noted that the December 3, 1980 separation examination did not reveal skin abnormalities. He was seen, diagnosed, evaluated, and treated in February 1978 and May 1978 for multiple corns on the tops of both feet. He was also seen by the orthopedic service in July 1978 and did not require a surgical fusion. He stated that there were no further notes dealing with this episode after July 1978. He reported that there are no VA treatment records in which the Veteran was treated for a continuation of the same problems that arose from the military service shortly after his active duty separation. He stated that a tinea infection is caused by a common fungus. Additionally, onychomycosis is a fungal infection of the toenails or fingernails that may involve any component of the nail unit, including the matrix, bed, or plate. He concluded that the service records do not demonstrate that a foot infection condition was persistent while on active duty as determined by either the treatment notes, clinical course of the Veteran, or in his separation history/physical examination. He reported that from a medical point of view, the Veteran experienced minor self-limiting conditions which resolved as expected of such illnesses. He stated that consequently, it would not be likely that complications from his military service events would be expected to resurface later on in his life. He stated that when further problems did arise with the claimed issue, it was many years after the events in the military service. He stated that this considerable period of time after the Veteran left the military would have severed any causal connection to the current issue. He stated that other more likely explanations would have arisen in this interval so as to result in the recent situation. He reported that an alternative explanation exists for the development of the Veteran’s later skin disease of the feet. He stated that one can easily pick up a fungus and can even catch a fungal infection from pets. He stated that this is a communicable disease in which re-infection is common. VA treatment records reviewed reflects that the Veteran continues to be treated for a fungal infection of his bilateral feet with topical medication. Upon review of the evidence of record, the Board finds that service connection for a dermatological disability of his bilateral foot is warranted. Initially, as noted above, the Veteran has a diagnosis of tinea pedis and has been treated for various fungal bilateral foot disabilities. Thus, the question becomes whether the current disability is related to service. As noted above, the Veteran was seen for dermatological issues in his feet in service. Additionally, following separation, he continued to complain and receive treatment for this which were seen and noted on examination. Moreover, the Veteran has continuously and consistently reported that his fungal conditions began during service and have continued since. The Veteran is competent to report ongoing symptomatology, and there is no reason to doubt his credibility in this regard. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the July 2016 VA examiner supported the Veteran’s contentions. While the examiner did not provide a nexus opinion, he noted that he reviewed the claims file and the findings in the medical record supports some of the general medical history given by the Veteran. The examiner noted that the Veteran has a significant history of bilateral tinea pedis since the 1970’s with recurrent exacerbation despite treatment. The recurrent aggravation has persisted since despite treatment with systemic and topical medication. The August 2016 VA opinion reflects a lack of a relationship between the Veteran’s current dermatological disability and his military service. However, it appears that the examiner did not take into consideration the July 2016 VA examiner’s statements regarding the Veteran’s disability. The August 2016 opinion focused on a lack of evidence of the disability being chronic. However, the lack of treatment is not dispositive if there is competent, credible evidence of symptoms during the relevant time period, as is the case here. Thus, the opinion is not probative. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). In light of the above, specifically the Veteran’s statements of ongoing symptomatology and the contemporaneous medical records, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current dermatological fungal disability began during service. Accordingly, after resolving all doubt in favor of the Veteran, service connection for a dermatological fungal disability of the bilateral foot is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. 4. Entitlement to an initial disability rating in excess of 40 percent for spinal stenosis with DJD of the lumbar spine The Veteran generally contends that the symptoms of his lumbar spine disability warrant an increased disability rating. The Veteran has been in receipt of an initial 40 percent rating for spinal stenosis with degenerative arthritis of the lumbar spine effective from July 20, 2016 under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. The Board notes that during the pendency of the Veteran’s increased rating claim on appeal, the rating criteria for evaluating arthritis and certain musculoskeletal disabilities were amended in November 2020, December 2020, and February 2021. See 85 Fed. Reg. 76,453-76,469 (Nov. 30, 2020); 85 Fed. Reg. 85,523-85,524 (Dec. 29, 2020); 86 Fed. Reg. 8,142-8,144 (Feb. 4, 2021). The change, effective February 7, 2021, added certain diagnostic codes and amended the rating criteria for several diagnostic codes listed under 38 C.F.R. § 4.71a. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date, unless the regulation specifically provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, the Board is not precluded from applying prior versions of the applicable regulations to the period on or after the effective date of the new regulation if the prior versions were in effect during the pendency of the appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).” As there is no indication that the above amendments were intended to be applied retroactively, the changes do not apply before the date they became effective. See Kuzma, 341 F.3d at 1329. As relevant to the Veteran’s lumbar spine disability, the rating criteria in effect prior to February 7, 2021 provided that DC 5242 contemplated degenerative arthritis of the spine and indicated that DC 5003 should also be considered. On and after February 7, 2021, the amendments changed DC 5242 to include degenerative disc disease (other than IVDS) with arthritis and indicated that either DC 5003 or DC 5010 should also be considered. In terms of IVDS, prior to February 7, 2021, the rating criteria indicated that DC 5243 contemplated IVDS. Effective from February 7, 2021, the rating criteria still list IVDS under DC 5243, but also instruct that this diagnostic code should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. For all other disc diagnoses, DC 5242 should be assigned. The rating criteria in effect from February 7, 2021 also added DC 5244 for paraplegia and quadriplegia. This diagnostic code provides that paraplegia should be rated under diagnostic code 5110. Quadriplegia should be rated separately under diagnostic codes 5109 and 5110, and the evaluations should be combined in accordance with 38 C.F.R. § 4.25. A note to this diagnostic code provides that if traumatic paralysis does not cause loss of use of both hands or both feet, it is incomplete paralysis. Residuals of incomplete traumatic paralysis should be evaluated under the appropriate diagnostic code (e.g., § 4.124a, Diseases of the Peripheral Nerves). Prior to February 7, 2021, Diagnostic Code 5003 was noted to contemplate arthritis, degenerative (hypertrophic or osteoarthritis). On and after February 7, 2021, Diagnostic Code was noted to contemplate degenerative arthritis, other than post-traumatic. Both the old and new rating criteria for Diagnostic Code 5003 state that degenerative arthritis established 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or minor joint groups, will warrant a rating of 10 percent; x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, will warrant a 20 percent rating. For the purpose of rating a disability from arthritis, the lumbar vertebrae are considered a group of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45(f). Prior to February 7, 2021, Diagnostic Code 5010 provided that arthritis, due to trauma, substantiated by X-ray findings, should be rated as arthritis, degenerative. On and after February 7, 2021, Diagnostic Code 5010 is noted to be for post-traumatic arthritis. The amended Diagnostic Code 5010 instructs that this type of arthritis should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. For the entire appeal period, the criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. See 38 C.F.R. § 4.71a. As noted above, DC 5244 was also added effective from February 7, 2021. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Apart from the previously discussed changes, the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, were unchanged by the amendments effective from February 7, 2021. The General Rating Formula provides that with or without symptom such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. The regulations applicable to rating musculoskeletal disabilities require that VA must also consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (‘flare-ups’) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45. The evidence reflects that an initial disability rating in excess of 40 percent is not warranted at any time during the appeal period. The record does not reveal that the Veteran has ankylosis or incapacitating episodes. Neither the Veteran’s private and VA treatment notes nor the VA examination reports indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Rather, these documents contain either specific findings of no ankylosis or findings reflecting that there is no ankylosis. See, e.g., December 2016 VA examination; March 2019 VA examination; October 2020 VA examination. The lay statements similarly do not indicate that there has been ankylosis. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Similarly, Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016) are not for application because those decisions pertain to the adequacy of examinations as they relate to range of motion findings, but range of motion findings are not relevant here because they cannot result in a higher rating. In addition, the Veteran does not contend, and the evidence does not reflect, that he has suffered from incapacitating episodes due to IVDS. As such, a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted under either the old or revised Diagnostic Code 5243. There is also no evidence to suggest that the Veteran has been found to have paraplegia or quadriplegia to warrant a rating under the newly added Diagnostic Code 5244. For the entire period on appeal, the Board has also followed Diagnostic Code 5242's instruction to consider whether a higher or separate rating is warranted for the Veteran's lumbar spine disability under Diagnostic Code 5003. As noted above, 20 percent is the maximum available rating under Diagnostic Code 5003. Moreover, the 40 percent rating effective for the entire appeal period also contemplates painful limitation of motion. Consequently, a separate rating under Diagnostic Code 5003 would result in pyramiding as the Veteran would be compensated twice for the same symptomatology. 38 C.F.R. § 4.14. Although the Board has considered the newly amended DC 5242’s instruction to also consider DC’s 5010, which provides to rate as limitation of motion, dislocation, or other specified instability under the affected joint, the Veteran is already in receipt of the highest available rating for limitation of motion of the lumbar spine under DC 5242. For the same reasons as noted above, a separate rating for such limitation of motion under DC 5010 would constitute impermissible pyramiding. The Board has considered whether a separate evaluation should be awarded for any neurological manifestations present during the appeal period. The Board notes that radiculopathy involving the sciatic nerve on the right and left side was noted in the March 2019 VA examination. In addition, radiculopathy involving the sciatic as well as the femoral nerve was noted on the both the right and left side in the October 2020 VA examination. However, an August 2019 rating decision granted entitlement to service connection for left lower radiculopathy and right lower extremity radiculopathy and assigned two separate 10 percent ratings effective from March 15, 2019. A noncompensable evaluation for right lower radiculopathy was assigned effective from July 30, 2019. A subsequent October 2020 rating decision awarded two separate 20 percent rating for left and right lower extremity radiculopathy with sciatic nerve involvement (previously rated as left and right lower radiculopathy) effective from March 15, 2019; and two separate 20 percent ratings for left and right lower extremity radiculopathy with femoral nerve involvement effective from October 6, 2020. The Board notes that the disability ratings for these disabilities are not before the Board at this time. In addition, the December 2016, March 2019, and October 2020 VA examiners found that the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine disability (such as bowel or bladder problems/pathologic reflexes). Thus, no other separate disability rating on this basis is warranted. As the preponderance of the evidence reflects the symptoms of the Veteran’s lumbar spine disability do not more nearly approximate the criteria for a rating higher than 40 percent, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disorder, to include pes planus, is remanded. The Veteran was provided with a VA examination related to his service connection claim for bilateral pes plenus in July 2016. The examiner diagnosed bilateral flat foot (pes planus). The examiner later provided a negative nexus opinion addressing this diagnosis in August 2016. However, the record shows that subsequent VA Radiology imaging of the bilateral foot from May 2020 revealed bilateral mild hallux valgus and degenerative arthritis. Although the Board previously characterized the Veteran's claim as entitlement to service connection for bilateral pes planus, the claim encompasses all foot disorders that are reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has consequently recharacterized the claim to include all current bilateral foot disorder diagnoses. As the examiner who provided the August 2016 opinion did not include a medical opinion for these subsequent diagnoses, a remand is necessary to obtain an additional medical opinion that considers all current bilateral foot disorder diagnoses. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his bilateral foot disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include any treatment records dated since February 2021. 2. After completing the preceding development in paragraph 1, obtain a VA medical opinion from a qualified examiner on the etiology of the Veteran's bilateral foot disorder, to include pes planus. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. First, the examiner must identify all right and/or left foot disorders that have been present during the appeal period. If pes planus, hallux valgus, and degenerative arthritis are not identified, the examiner must address the previous diagnoses of record. For each identified diagnosis, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during, or is otherwise related to, the Veteran's period of active service. 3. After completing the above actions, the claim must be readjudicated. K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.