Citation Nr: 21011223
Decision Date: 03/01/21	Archive Date: 03/01/21

DOCKET NO. 10-22 668A
DATE: March 1, 2021

ORDER

Entitlement to service connection for ganglion cysts, right wrist denied.

Entitlement to service connection for ganglion cysts, the left wrist is denied.

Entitlement to an initial 10 percent disability rating for hypertension is granted. 

Entitlement to an initial 10 percent disability rating for cardiomyopathy is granted.  

Entitlement to an initial 10 percent disability rating for left forearm lipoma (claimed as ganglion cyst) is granted.

Entitlement to an initial compensable disability rating for residual scar, status post left Mumford procedure, left shoulder is denied. 

Entitlement to a 10 percent disability rating for residual scar, status post left Mumford procedure, left shoulder is granted effective March 14, 2016.

Entitlement to an initial 20 percent disability rating for status post Mumford procedure, left shoulder (also claimed as history of AC joint disruption, synovitis, and DJD), is granted. 

Entitlement to an initial disability rating greater than 10 percent for lumbar facet arthritis is denied.

Entitlement to a disability rating greater than 20 percent, beginning March 14, 2016, for lumbar facet arthritis, is denied. 

Entitlement to a disability rating greater than 40 percent, beginning June 12, 2019, for lumbar facet arthritis, is denied. 

Entitlement to a 10 percent disability rating beginning March 10, 2016, for radiculopathy of the right lower extremity, is granted.

Entitlement to a disability rating greater than 20 percent, beginning June 12, 2019, for radiculopathy of the right lower extremity, is denied.

Entitlement to a 10 percent disability rating beginning March 10, 2016, for radiculopathy of the left lower extremity is granted.

Entitlement to a disability rating greater than 20 percent, beginning June 12, 2019, for radiculopathy of the left lower extremity, is denied.

Entitlement to an initial rating greater than 10 percent for arthritis of the right knee (claimed as arthralgia) is denied. 

Entitlement to a disability rating greater than 20 percent for arthritis of the right knee, with limitation of extension, beginning June 12, 2019, is denied.

Entitlement to a disability rating greater than 10 percent for arthritis of the right knee, with limitation of flexion, beginning June 12, 2019, is denied.

Entitlement to an initial rating greater than 10 percent for left knee patellofemoral syndrome (PFS) is denied.

Entitlement to a disability rating greater than 20 percent for left knee patellofemoral syndrome, with limitation of extension, beginning June 12, 2019, is denied.

Entitlement to a disability rating greater than 10 percent for left knee patellofemoral syndrome, with limitation of flexion, beginning June 12, 2019, is denied.

Entitlement to an initial compensable disability rating for bilateral pes planus with plantar fasciitis before March 14, 2016, is denied.

Entitlement to a disability rating greater than 10 percent for bilateral pes planus with plantar fasciitis beginning March 14, 2016, is denied.

A 10 percent disability rating for bilateral plantar fasciitis is granted, effective February 7, 2021.  

Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted from December 1, 2008.

REMANDED

The issue of the timelines of the appealed issues in an August 2010 administrative decision is remanded.

Entitlement to service connection for a chronic disability manifested by left hand pain is remanded.

Entitlement to an initial compensatory disability rating for erectile dysfunction (ED) is remanded.

Entitlement to an initial compensable disability rating for arthritis, metacarpophalangeal (MCP) joint, right hand, and a rating greater than 10 percent beginning May 23, 2016, is remanded.

FINDINGS OF FACT

1. The probative evidence does not reflect that the Veteran has a right wrist cyst that was manifested in service and/or is otherwise related to his active service.

2. The probative evidence does not reflect that the Veteran has a left wrist cyst that was manifested in service and/or is otherwise related to his active service.

3. During the appeal period, the Veteran’s hypertensive disorder did not manifest in diastolic pressure predominately 110 or more or systolic pressure at predominately at 200 or more. 

4. Affording the Veteran, the benefit of the doubt, during the appeal period, his cardiomyopathy has been controlled with continuous medication. 

5. The Veteran’s left forearm lipoma is painful.  

6. Before March 14, 2016, the Veteran’s left shoulder scar did not occupy an area of 39 to 77 square centimeters, was not superficial and nonlinear, nor caused impairment of function.

7. Beginning March 14, 2016, the Veteran’s left shoulder scar was painful but not unstable and manifested in no other disabling effects.

8. The Veteran’s residual scar, status post left Mumford procedure, left shoulder does not occupy an area of 929 square centimeters or greater. 

9. The Veteran’s left shoulder disability was primarily manifested with functional limitation due to pain but not by at least motion limited to 25 degrees from the side, ankylosis, or impairment of the humerus.

10. During the period before March 14, 2016, the Veteran’s lumbar facet arthritis was not manifested by forward flexion 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.

11. Beginning March 14, 2016, the Veteran’s lumbar facet arthritis was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 

12. Beginning June 12, 2019, the Veteran’s lumbar facet arthritis was not manifested by unfavorable ankylosis of the entire thoracolumbar spine.

13. Beginning March 10, 2016, the Veteran’s right lower radicular symptoms were consistent with mild incomplete paralysis.  

14. Beginning June 12, 2019, the Veteran’s right lower radicular symptoms were not consistent with moderately severe incomplete paralysis.  

15. Beginning March 10, 2016, the Veteran’s left lower radicular symptoms were consistent with mild incomplete paralysis. 

16. Beginning June 12, 2019, the Veteran’s left lower radicular symptoms were not consistent with moderately severe incomplete paralysis.  

17. The Veteran’s right knee disability was not manifested by compensable limitation of motion or other separately compensable disability before June 12, 2019.

18. Beginning June 12, 2019, the competent evidence of record shows right knee extension limited to 15 degrees during repetitive use and flare-ups.

19. Beginning June 12, 2019, the competent evidence of record shows right knee forward flexion limited to 45 degrees during repetitive use and flare-ups.

20. The Veterans left knee disability was not manifested by compensable limitation of motion or other separately compensable disability before June 12, 2019.

21. Beginning June 12, 2019, the competent evidence of record shows left knee extension limited to 15 degrees during repetitive use and flare-ups.

22. Beginning June 12, 2019, the competent evidence of record shows left knee forward flexion limited to 45 degrees during repetitive use and flare-ups.

23. Before March 14, 2016, the Veteran’s bilateral pes planus with plantar fasciitis was manifested as mild symptoms relieved by built-up shoe or arch support.

24. Beginning March 14, 2016, the Veteran’s bilateral pes planus manifested in pain on use of the feet.

25. The Veteran has bilateral plantar fasciitis but has not had surgery or been recommended for surgery.  

26. The Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for a right wrist ganglion cyst are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for the left wrist ganglion cyst are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for an initial 10 percent disability rating for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.104, Diagnostic Code 7101.

4. The criteria for an initial 10 percent disability rating for service-connected cardiomyopathy have been met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.104, Diagnostic Code 7020.

5. The criteria for an initial 10 percent disability rating for a left forearm lipoma are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.27, 4.118, Diagnostic Code 7899-7819, 7804.

6. The criteria for a compensable disability rating for residual scar, status post left Mumford procedure, left shoulder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.118, Diagnostic Code 7802.

7. The criteria for an initial 20 percent rating for left shoulder disability have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5201.

8. Beginning March 14, 2016, the criteria for an increased rating greater than 20 percent for left shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5203-5201.

9. The criteria for an initial disability rating greater than 10 percent for service-connected lumbar facet arthritis have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5242.

10. Beginning March 14, 2016, the criteria for a rating greater than 20 percent for service-connected lumbar facet arthritis have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 500, 5242.

11. Beginning June 12, 2019, the criteria for a rating greater than 40 percent for service-connected lumbar facet arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5237.

12. Beginning March 10, 2016, the criteria for a rating greater than 10 percent for radiculopathy of the lower right extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.124a, Diagnostic Code 8520.

13. Beginning June 12, 2019, the criteria for a rating greater than 20 percent for radiculopathy of the lower right extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.124a, Diagnostic Code 8520.

14. Beginning March 10, 2016, the criteria for a rating greater than 10 percent for radiculopathy of the lower left extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.124a, Diagnostic Code 8520.

15. Beginning June 12, 2019, the criteria for a rating greater than 20 percent for radiculopathy of the lower left extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.124a, Diagnostic Code 8520

16. The criteria for a rating greater than 10 percent for arthritis of the right knee are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260, 5260.

17. Beginning June 12, 2019, the criteria for a rating greater than 20 percent for right knee extension are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.71a, Diagnostic Code 5261.

18. Beginning June 12, 2019, the criteria for a rating greater than 10 percent for right knee flexion are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.71a, Diagnostic Code 5260.

19. The criteria for a rating greater than 10 percent for patellofemoral pain syndrome of the left knee are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes, 5299-5024, 5003-5061.

20. Beginning June 12, 2019, the criteria for a rating greater than 20 percent for left knee extension are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.71a, Diagnostic Code 5261. 

21. Beginning June 12, 2019, the criteria for a rating greater than 10 percent for left knee flexion are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.71a, Diagnostic Code 5260.

22. The criteria for a compensable disability rating for pes planus with plantar fasciitis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024-5276.

23. Beginning March 14, 2016, the criteria for a 30 percent disability rating for pes planus with plantar fasciitis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276.

24. Beginning February 7, 2021, the criteria for a 10 percent disability rating for plantar fasciitis have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5269)

25. A TDIU is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from January 1986 to April 1986 and January 1988 to November 2008.  

These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2009 and March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

The January 2009 rating decision granted service connection for right knee disability (claimed as arthralgia) and left knee disability claimed as patellofemoral syndrome PFS both at 10 percent disabling, effective December 01, 2008; status post Mumford procedure, left shoulder, and a lower back disability, both at 10 percent disabling, effective December 01, 2008; arthritis, metacarpophalangeal of the right hand, bilateral pes planus with plantar fasciitis, 4th and 5th metatarsal shafts, left foot, costochondritis, post status malaria, hypertension, right varicocele, hemorrhoids, erectile dysfunction, residual scar, post testicular surgery, scar, status Mumford, left shoulder; lipoma, left forearm; ganglion cyst, at a noncompensable disability rating, effective December 01, 2008; and denied service connection for left hand pain, arcus senilis, gastritis, dermatitis, ganglion cysts right wrist, left wrist, left hand, and right hand.

The March 2009 rating decision granted service connection for cardiomyopathy, at a noncompensable disability rating, effective December 01, 2008.  

During the period on appeal, the RO in a rating decision of September 2018, denied a TDIU, increased the rating for a back disability from 10 percent to 20 percent disabling, effective March 2016; status post Mumford procedure left shoulder from 10 percent to 20 percent disabling, effective May 23, 2016; arthritis, MCP joint, right hand from a noncompensable disability rating to 10 percent disabling, effective May 23, 2016; and bilateral pes planus with plantar fasciitis from a noncompensable disability rating to 10 percent disabling, effective March 14, 2016. 

The September 2018 rating decision also granted service connection for ganglion cysts, left hand and ganglion cysts, right hand, both at a noncompensable rating effective December 01, 2008.  As these service connection claims are considered full grants, they are not in appellate status before the Board. 

The rating decision of August 2020 increased the rating for degenerative joint disease lumbosacral spine from 20 percent to 40 percent, effective June 12, 2019; degenerative arthritis, right knee with limitation of extension, from 10 percent to 20 percent, effective June 12, 2019; granted service connection for radiculopathy of the bilateral lower extremity, each at 20 percent disabling, effective June 12, 2019.  As the Veteran seeks a higher rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought.  The claims remain in controversy where less than the maximum benefit is awarded.  AB v. Brown, 6 Vet. App. 35 (1993).  

The issues were before the Board in May 2014 and remanded with instructions to obtain and associate outstanding private and VA treatment records, provide VCAA notice, as well as medical opinion for the service connection and TDIU claims as well as for the increased rating claims.  Specifically, for the increased rating claims for left shoulder scar and left forearm lipoma, the Board requested the examination be provided by a dermatologist.  These examinations, however, were conducted by a board-certified/multiply recertified Family Medicine practitioner with over 35 years of experience.  Although the medical practitioner was not a dermatologist, the Board finds that she has extensive medical training and is, therefore, deemed qualified through her education, training, and experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1).  The Board recognizes the deviation from the remand directives, but it is not such that a remand is required for correction.  D’Aries v. Peake, 22 Vet. App. 97, 106 (2008).

Regarding the March 2016 examinations for ED, and arthritis, MCP joint, right hand, the Board finds the examination adequate for adjudication purposes.  Therefore, there has not been substantial compliance.  Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999).

The Board also notes that the March 2016 examinations for the back and bilateral knee disabilities are also inadequate.  However, as the Veteran has provided competent and credible medical findings in June 2019 Disability Benefits Questionnaire (DBQs), a remand for a new examination is not necessary.   

The Board further notes that the May 2014 remand also mandated that for the issues identified as “Timeliness of the appeal issues,” that the RO obtain information from the Veteran regarding his June 2010 on-line request to the RO and tracking information of the certified mail to VA of the same month.  In January 2016, the RO requested the additional information and alerted the Veteran that he had 30 days to provide the said information.  In a late February 2016 Statement in Support of Claim, the Veteran provided the following statement: “The remaining records are in storage, and with the deadline, weather, and my body pain, I am unable to get them at the moment.  However, I will get then as soon as possible and turn everything over to my lawyer.”  The 30 days expired without the Veteran submitting the requested information.  The Board finds substantial compliance in this regard.  Id.

Per the remand, the RO was to provide the Veteran with a SSOC, addressing the appealed issue.  As the RO has not done so, the Board finds there has not been substantial compliance.  Id.

Lastly, the Board notes the addition of VA examinations of February 2020, March 2020, and September 2020 relating to the Veteran’s knees, back, hypertension, status post Mumford, and scar issues.  However they are not are not being used as the basis for the denial of the claims.  A remand or delay for a request for a waiver is not required for this evidence to be considered in the first instance by the RO.

I. Service connection 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303.  If there is no showing of a resulting chronic condition during service, then a showing of the continuity of symptomatology after service is required to support a finding of chronicity for certain diseases.  38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.”  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a “competent” source.   The Board must then determine if the evidence is credible or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record.

The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996).

A. Entitlement to service connection for ganglion cysts, right wrist denied.

B. Entitlement to service connection for ganglion cysts, the left wrist is denied.

The Veteran contends that he has ganglion cysts of the bilateral wrist that was incurred in service.  The Veteran reported being diagnosed with cysts in the bilateral hands, wrists, and forearms while in service.

The Veteran’s service treatment records (STR), dated in December 1995, note a cystic lesion on the dorsal surface of the left hand and a diagnosis of multiple lipomas.  The Veteran was later evaluated for cysts on the left thumb and assessed with ganglionic cyst versus lipoma. 

During an October 2008 examination, the examiner noted no ganglion cyst of the bilateral wrist.  

The Veteran was afforded a VA opinion in March 2016.  The examiner was asked to determine whether the Veteran currently has a ganglion cyst on the right wrist, right hand, left wrist, and/or left hand and/or any residuals from the cysts/lipoma diagnosed in 1995 while on active duty.  The examiner diagnosed lipoma on both distal dorsal forearms, ganglion cysts on both the left and right hands and proffered a nexus to service.  The examiner found no cysts on the bilateral wrist.  

The Board finds that the March 2016 medical opinion provides probative evidence against the claim for service connection for right wrist and left wrist cysts.  The examiner found the Veteran to have a lipoma on bilateral distal dorsal forearms, ganglion cysts on both the left and right hands, for which he has been service-connected.  As a result, the Board affords it high probative weight.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion.).  

The Veteran is deemed competent and credible in his description of his observable symptoms.  However, the Board must determine on a case by case basis whether a particular condition is the type of condition that is within the competence of a layperson to provide an opinion as to etiology.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The Veteran, in this case, is not competent to self-diagnose right wrist and left wrist cysts.  Diagnosing right wrist and left wrist cysts involves an understanding of internal physical processes not observable to a layperson.  The record does not show that he has the experience, skills, or medical training needed to self-diagnose this disability.  Further, his contentions were investigated by a credible medical examiner who found no right wrist and left wrist cysts.  

Accordingly, as the probative and competent medical evidence does not reflect that the Veteran currently has right wrist and left wrist cysts, the first element of a service connection claim is not met.  Shedden, 381 F.3d 1163.  Thus, service connection for right wrist and left wrist cysts is not warranted.  A current disability is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).  In the absence of evidence of a current disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). 

Accordingly, the preponderance of the evidence of record is against the claims, and as such, service connection for right wrist and left wrist cysts must be denied.  In arriving at its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence.  Gilbert, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102.

II. Increased Disability Ratings

Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20.  Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher 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 claimant.  38 C.F.R. § 4.3.

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). 

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Third, the Board must weigh the probative value of the evidence considering the entirety of the record.

A.  Hypertension and Cardiomyopathy 

1.  Entitlement to an initial compensatory disability rating for hypertension is denied.     

The Veteran’s service-connected hypertension is currently evaluated under Diagnostic Code 7101.  Under Diagnostic Code 7101, a 10 percent rating is warranted for hypertension when diastolic pressure is predominantly 100 or more, or when systolic pressure is predominantly 160 or more, or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication control.  A 20 percent rating is warranted if diastolic pressure is predominantly 110 or more or if systolic pressure is predominantly 200 or more.  A 40 percent rating is warranted if diastolic pressure is predominantly 120 or more.  A 60 percent rating is appropriate if diastolic pressure is predominantly 130 or more.  Id.

The Diagnostic Code requires that the readings must be confirmed by taking two or more readings on at least three different days.  38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).

The Veteran contends that a compensable disability rating is warranted for his hypertensive disorder.  In a March 2010 statement, he reported that he was taking medication to control his hypertension. 

During the appeal period, the Veteran’s VA treatment records show fluctuating blood pressure (BP) readings; however, at no time did the readings show diastolic pressure predominantly 100mm or more, or systolic pressure predominantly 160mm or more.  For example, treatment records dated in January 2016 show blood pressure readings of 147/81, while a month later, in February 2016, it was noted at 127/75, with “hypertension: stable.”

In August 2008, the Veteran was afforded a hypertension examination.  He reported being diagnosed with hypertension that existed since 2001.  He also reported occasional headaches as a symptom thereof and his taking of Lotrel.  He reported no functional impairment of his hypertension. 

The examiner diagnosed hypertension and noted the subjective factor was a history of elevated blood pressure requiring medication.  The objective factors were based on the history and the fact that he was being treated with Lotrel. 

The Veteran underwent a Hypertension DBQ in March 2016.  He reported that his blood pressure was “pretty good” and that the Lisinopril was working.  He also reported knowing when his blood pressure goes up because his “head hurts.” 

The examiner noted that the Veteran’s treatment plan included the taking of continuous medication, in the form of Lisinopril, for his hypertension.  The examiner also noted that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more.  The blood pressure readings of March 14, 2016 are as follows: (1) 130/90; (2) 126/84; and (3) 138/86.  The average blood pressure reading was 131/86.

Per the May 2014 remand directive, the examiner was asked to address the following: whether hypertension was manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more; the Veteran has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control; diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more; or diastolic pressure predominantly 120 or more.  The examiner replied that the Veteran’s blood pressure was well-controlled on daily Lisinopril.  For the past three years, per review of CPRS, the Veteran’s blood pressure readings are as follows:

Date            		Reading

2/10/2016             	127/75

1/21/2016              	133/78 

8/12/2015            	132/76 

2/3/2015               	120/81 

7/8/2014              	138/85 

4/28/2014              129/75 

3/26/2013              128/79 

11/13/2012             125/90 

9/26/2012              118/76  

She further noted that the Veteran’s blood pressure was “NOT manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more.  There are no readings provided where the diastolic pressure is predominantly 100 or more, or where the diastolic pressure is predominantly 110 or more, or systolic pressure predominantly 200 or more, or where the diastolic pressure is predominantly 120 or more.”

Based on the above, the Board finds that the Veteran’s hypertension more nearly approximates the criteria for a 10 percent rating under Diagnostic Code 7101.  Although both the August 2008 and March 2016 VA examiners and VA clinical records have reported diastolic pressure that was less than 100 and systolic blood pressure that was less than 160, they noted his continuous use of Lisinopril and Lotrel to control his blood pressure.  Therefore, a 10 percent rating is warranted.   A higher rating is not warranted, for the evidence does not show that the Veteran’s diastolic pressure during the appeal period was predominantly 110 or more, or systolic pressure was predominantly 200 or more.  

There is no evidentiary basis to assign a rating greater than 10 percent for the Veteran’s hypertension.  Since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating.  Hart, 21 Vet. App. at 505.  Accordingly, the preponderance of the evidence is in favor of a 10 percent rating. 38 C.F.R. § 4.104, Diagnostic Code 7101. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49, 54-56 (1990).

2.  Entitlement to an initial 10 percent disability rating for cardiomyopathy is granted.  

The Veteran contends that his cardiomyopathy is warranted a compensable disability rating.  The Board notes that a noncompensable disability rating is assigned when the requirements for a compensable evaluation are not met under 38 C.F.R. § 4.3.  Under 38 C.F.R. § 4.104, cardiovascular disabilities are rated based on METs or metabolic equivalents or left ventricular ejection fraction (LVEF).  One metabolic equivalent is “the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute.”  38 C.F.R. § 4.104, Note 2.

Currently, the Veteran’s cardiomyopathy is rated under Diagnostic Code 7020, which warrants a 10 percent rating when a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required.  A 30 percent rating is warranted when there is a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  38 C.F.R. § 4.104.

In a March 2010 statement provided by the Veteran, he reported having a prescription for nitroglycerin.

Treatment notes dated in January and July 2011 indicate the Veteran’s complaint of chest pain, absent symptoms of exertional angina or dyspnea.  He reported that when he had chest pains, he did not do anything – he just stopped what he was doing and took a break until it passed.  He was still able to do exercise and bike ride.  During the July 2011 treatment session, the clinician noted regular rate and rhythm, absent S3, and murmur.  She assessed “negative cardiac workup, per the Veteran report of a valvular problem.”

During a VA examination of October 2008, the Veteran reported a heart condition, angina, shortness of breath, and dizziness, but no syncope attacks or fatigue.  The symptoms were intermittent pain in the chest around the heart area, difficulty breathy and feeling of passing out, lasting 10-20 minutes, three times per week.  He reported taking nitroglycerin for his condition.  

Upon examination, the examiner noted normal S1 and S2; no S3 and S4 heaves, thrills, murmur, or gallops.  The heart rate and rhythm were regular, and no evidence of congestive heart failure, cardiomegaly, or pulmonale was noted.  X-ray results and EKG were noted as normal, but the echocardiogram showed the left ejection fraction to be 65%.  Although the examiner did not perform a stress evaluation test, he estimated the METs level was > 9.  The VA examiner diagnosed left ventricular hypertrophy, mitral valve prolapses with mitral regurgitation and tricuspid regurgitation, noted 1st degree AV block, and possible right ventricular hypertrophy are insignificant.  

A January 2009 examination finding noted that the Veteran did not have coronary artery disease.  The examiner opined that he was surprised that the Veteran was placed on Nitroglycerin for his cardiac chest pain since there was no evidence of CAD.  

The Veteran underwent a VA examination in February 2009.  He reported continuous chest pain, pain with or without exercise, occasional shortness of breath, sometimes mild; sometimes, severe, and occurring 2-3 times per week.  He described a tightness in the lower left chest area and squeezed his hands together to describe the pain.  He reported that his use of Nitroglycerin did not help the pain.  The examiner diagnosed cardiomyopathy and noted that the last stress test in March 2008 showed no ischemia, with normal motion and EF, with some unusual ST-segment elevation.  

During a March 2009 clinical visit, the Veteran reported having had two previous stress tests and a cardiac catheterization, which were negative.  The clinician noted that due to the Veteran’s osteoarthritis, a repeat stress test was not medically justified since it would not give any METs evaluation.  He then determined that the Veteran’s current chest pain was atypical and more likely due to vasoconstriction, although no diagnosis had been assigned.  He diagnosed cardiomyopathy as associated with the Veteran’s chest pains.

In March 2016, the Veteran underwent a VA Heart Conditions examination.  The Veteran reported that since his last examination, he had been to different hospitals for chest pain, but there has been no sign of a heart attack.  He reported that he developed a pounding heart with chest pain and was told that he had an enlarged heart.  He also reported having had a cardiac catheterization in 2008, which showed a “partial blockage.”  He says the prescribed isosorbide and NTG to help lessen the chest pain attacks. 

Upon examination, the heart rate was 68, and there was regular rhythm, normal heart sounds, and his blood pressure was 124/84.  The EKG findings of March 2016 noted left ventricular hypertrophy.  However, there was no confirmation of LVH with the more precise diagnostic test of the 2d echo.  Also noted was sinus bradycardia with first-degree heart block.  The echocardiogram of March 2016 showed normal wall motion and thickness.

Addressing the METs test, the examiner noted that none was performed because of the Veteran’s medical contraindication of his bilateral knee and back disorders.  An interview-based METs test, however, dated in March 2016, noted METS level was >3-5 METs, which was consistent with activities such as light yard work (weeding), mowing the lawn (power mower), and brisk walking (4 mph).  The examiner noted that the METs level limitation was not due solely to the service-connected heart disability.

The estimated METs level due solely to the cardiac condition(s) were >7-10 METs, which was consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, jogging (6 mph).  The examiner explained that the interview based METs was low because the Veteran reported that he got chest pain (not diagnosed as cardiac) in “extreme heat,” and he could not mow the lawn, climb many stairs, work outside.  The estimated METS of 7-10 cannot be attributed to the service-connected heart condition, including IHD.

The examiner remarked that the Veteran did NOT have cardiomyopathy or LVH per his current 2D ECHO.  His cardiac output (EF) was normal at 53.6%.  Although he had episodes of chest pain, they have never truly been diagnosed as angina or heart related.  He has been thoroughly worked up since 2006 with multiple EKGs, 3-2D ECHOs, 2 Exercise Cardiolite Stress tests, and even a cardiac catheterization (normal).  His current calculated cardiac METs is >7-10.  Further, she noted that 

there is some discrepancy between what the Veteran expressed to this examiner regarding activity level, and what was documented in a medical note per Fort Knox Occupational Health Clinic nine days before this report writeup: “Client reports that he has seen a cardiologist for similar EKG since 2003 and that he has been cleared as having normal heart function, the documentation presented.  He denied chest pain, shortness of breath, dizziness, palpitations, or syncope.”

In April 2016, the Veteran was afforded a medical opinion.  The examiner noted that that as the Veteran was not able to endure an exercise stress test secondary to arthritis in the bilateral knees and back, the METs at the point where he has dyspnea, fatigue, angina, dizziness, or syncope could not be determined.  She noted that his last exercise stress test was done in 2008, at which time his METs level was 12.6 with a normal ejection fraction of 53%.  His current EF was stable at 53.6.  His METs level should be greater than 7/10.  Regarding whether the Veteran’s adverse symptomatology includes symptomatology more nearly approximating chronic congestive heart failure, the examiner noted that per the Veteran’s records, he has never been diagnosed with CHF, and has had no symptoms consistent with such a diagnosis, and was not on treatment for CHF.

Addressing whether the Veteran’s adverse symptomatology included left ventricular dysfunction with an ejection fraction of less than 30 percent or left ventricular dysfunction with an ejection fraction of 30 to 50, the examiner noted the Veteran’s normal left ventricular function with a normal ejection fraction of 53.6% per current 2D ECHO.  There was no evidence of left ventricular dysfunction.  Further, although his EKG report states left ventricular hypertrophy, this is subject to many variables, such as lead placement, machine interpretation vs. human interpretation, and was not as accurate as an ECHO.  The latter uses ultrasound, and a cardiologist can visualize and measure the heart size and shape, and function of the heart valves.  Per the current ECHO, the Veteran has no left or right ventricular hypertrophy, no left ventricular dilatation, but only mild right ventricular enlargement, stable over the years, most likely insignificant.  His chest X-rays do not show any heart abnormalities.

Finally, the examiner noted that the Veteran did not have an adverse disability; therefore, he did not need, nor did he require a pacemaker.  His cardiac catheterization of 2008 showed mild coronary artery disease with no blockage.  He has never been diagnosed with ischemic heart disease or angina.  A definitive diagnosis for his chest pain has never been established.  He has atypical chest pain, for which isosorbide was prescribed.  She also noted that he was on Atorvastatin for treatment of arterial plaque.

Based on the medical evidence of record, the Board finds that a 10 percent rating is warranted for the Veteran’s cardiomyopathy.  Throughout the appeal period, the Veteran has complained of chest pains.  The evidence shows that he has been taking nitroglycerin, and during the March 2016 VA examination, it was noted that he had been prescribed isosorbide for his chest pains.  Therefore, affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s disability is most accurately captured by the 10 percent rating.  38 C.F.R. § 4.104, Diagnostic Code 7020.  

There is no competent medical evidence of record, during the appeal period, that the workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  38 C.F.R. § 4.104.  Therefore, the Board finds that a 30 percent is not warranted.   

As the evidence does not show that the Veteran’s disability picture of cardiomyopathy more closely approximated the criteria for a rating greater than 10 percent during the appeal period, the Board may not stage his rating.  Fenderson, 12 Vet. App. at 125-26.  The evidence of record fails to show that the Veteran’s cardiomyopathy manifested in 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope.  There is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  Therefore, a 30 percent rating is not warranted.

There is no evidentiary basis to assign a rating greater than 10 percent for the Veteran’s cardiomyopathy.  Since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating.  Hart, 21 Vet. App. at 505.  Accordingly, the preponderance of the evidence is in favor of a 10 percent rating.  38 C.F.R. § 4.104, Diagnostic Code 7020. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49, 54-56 (1990).

B.  Skin

The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018.  These new regulations apply to all applications for VA benefits or that are pending before the agency of original jurisdiction on or after August 13, 2018.  Claims pending before the effective date will be considered under both old and new rating criteria, and whatever criteria are more favorable to the veteran will be applied.  The Board may not apply a current regulation before its effective date unless the regulation explicitly provides otherwise.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.  The revisions to Diagnostic Codes 7801, 7802, and 7805, pertaining to scars: (1) replace the deep/nonlinear/superficial terminology in Diagnostic Code 7801, and 7802 with “underlying soft tissue damage;” (2) streamline the body parts/areas into six zones of the body, defined as each extremity, the anterior trunk and the posterior trunk (Note 1 to Diagnostic Codes 7801 and 7802); and (3) indicate how to assign separate evaluations for each affected zone of the body under § 4.25 (Note 2 to Diagnostic Codes 7801 and 7802).

Diagnostic Code 7800 governs burn scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck.  38 C.F.R. § 4.118, Diagnostic Code 7800.  Thus, as the Veteran’s scar disability is not of the head, face, or neck, it is not pertinent to this appeal.

Diagnostic Code 7801 governs deep and nonlinear scars, not the head, face, or neck.  A 10 percent is warranted for an of 39 to 77 square centimeters.  A 20 percent is warranted for an area of 77 to 465 square centimeters.  A 30 percent is warranted for an area of 465 to 929 square centimeters.  A 40 percent is warranted for an area of 929 square centimeters or greater.  38 C.F.R. § 4.118, Diagnostic Code 7801.  Diagnostic Code 7801, Note (1) defines a deep scar as “one associated with underlying soft tissue damage.”

Under Diagnostic Code 7802, superficial and nonlinear scars that are not of the head, face, or neck, warrants a 10 percent with an area of 929 square centimeters or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802.  Diagnostic Code 7802, Note (1) defines a superficial scar as “one not associated with underlying soft tissue damage.”

Diagnostic Code 7804 governs unstable or painful scars.  A 10 percent is warranted for one or two scars that are unstable or painful.  A 20 percent is warranted for three or four scars that are unstable or painful.  A 30 percent is warranted for five or more scars that are unstable or painful.  38 C.F.R. § 4.118, Diagnostic Code 7804.  Diagnostic Code 7804 Note (2) allows for an extra 10 percent rating if one or more of the scars are both unstable and painful.  Diagnostic Code 7804, Note (1) defines an unstable scar as “one where, for any reason, there is frequent loss of covering of skin over the scar.”

The provisions of 38 C.F.R. § 4.118, Diagnostic Code 7805 apply to other scars, including linear scars, and “other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804.”  Diagnostic Code 7805 contains the instruction “Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-7804 under an appropriate diagnostic code.”

1.  Entitlement to an initial 10 percent disability rating for left forearm lipoma (claimed as ganglion cyst), is granted.

The Veteran contends that he is warranted a compensable disability rating for his left forearm lipoma.  

Currently, his left forearm lipoma is rated under Diagnostic Code 7819, which pertains to benign skin neoplasms and provides for rating as disfigurement of the head, face, or neck, scars, or impairment of function.

During a VA examination of October 2008, the Veteran reported difficulty using his hand.  Upon examination, the examiner noted a soft, oval lipoma on the left forearm, with an elevated surface, and measuring 4.5 cm x 3.0 cm.  The examiner noted no evidence of tenderness or adherence to the underlying tissue.  The examiner provided the diagnosis of lipoma in, left forearm. 

During the March 14, 2016, VA skin diseases examination, the Veteran reported sharp pain with forearm lipoma.  He rated the pain at 5/10 and indicated that it got bigger from time to time and bothered him.  He also reported flare-ups once monthly, with pain rated at 10/10.  He also stated that he had pain in the past, and went to the hospital for it in 2005 or 2006.  

Upon examination, the examiner noted a left distal forearm lipoma.  The lipoma was noted as oval-shaped, fleshy, moveable, and nontender mass, measuring 3 cm x 4 cm, and absent any signs of infection.  

Based on the evidence of record, the Board finds that the Veteran’s lipoma is painful.  A 10 percent rating under Diagnostic Code 7804 is warranted.  A higher rating is warranted since the Veteran’s sole left shoulder lipoma is painful but not unstable.  A higher rating is not warranted under Diagnostic Code 7801 because the lipoma does not cover at least 12 square inches but less than 72 square inches.  A 10 percent rating is the maximum rating available under Diagnostic Code 7802.  The preponderance of the evidence does not show that the lipoma causes disabling effects other than being painful.  

Accordingly, the Board finds that the preponderance of the evidence is in favor of an initial 10 percent disability rating.  38 C.F.R. § 4.118, Diagnostic Code 7804; 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49, 54-56 (1990).

3. Entitlement to an initial compensable disability rating for left shoulder scar is denied.

The Veteran contends that a compensable disability rating for his residual scar, status post left Mumford procedure, the left shoulder is warranted.  The Veteran’s scar is evaluated at a noncompensable rate, under Diagnostic Code 7802, for superficial and nonlinear scars that are not of the head, face, or neck.     

During a VA examination of October 2008, VA examination noted an elevated scar atop of the left shoulder from surgery measuring about 3.5 cm x 0.3-0.6 cm.  The examiner noted that the scar had disfigurement, keloid formation of less than six square inches, and hyperpigmentation of less than 6 square inches.  The scar was nontender.  There was no ulceration, adherence, instability, tissue loss, inflammation, edema, hypopigmentation, and abnormal texture.  The VA examiner diagnosed residual scar, status post left Mumford procedure, left shoulder. 

During the March 2016 VA examination, the examiner noted that the Veteran’s reported a surgical scar on top of the distal left shoulder, measuring 3.5 cm x 1 cm.  The scar was noted as nontender, keloidal, hyperpigmented, and well-healed.  The scar was also noted to be stable and pain-free.  

Based on the evidence presented, the Veteran’s left shoulder scar is not noted to occupy an area or areas of 144 square inches (929 sq. cm.) or greater.  Therefore, it does not meet the criteria for the maximum schedular of 10 percent under Diagnostic Code 7802. 

Regarding a rating under other diagnostic codes for scars, the left shoulder scar does not occupy an area of 39 to 77 square centimeters, is not unstable nor painful, and has had no additional disabling effect(s) not considered.  Therefore, Diagnostic Codes 7801, 7802, and 7805 are not applicable.  

The Board notes that during the Shoulder and Arm Conditions examination of March 2016, the examiner indicated that the Veteran’s scar was tender to palpation over the top of his left shoulder, “proximal to the surgical scar.”  She further added that additional contributing factors of his shoulder disability included less and weakened movement secondary to scar tissue from surgery.  She specifically reported in the same examination as well as the scar examination of the same day that the shoulder scar neither stable nor painful.  The private Shoulder and Arm DBQ of June 2019 confirmed that the scar was not painful.  As there is no evidence of record reflecting that the residual scar, status post left Mumford procedure, the left shoulder is unstable or painful, a rating under Diagnostic Code 7804 is not warranted.  

Because the Board considered the applicable ratings under every diagnostic code pertaining to scars, the Board finds no other potentially applicable diagnostic codes by which a higher rating can be assigned.

Accordingly, as the preponderance of the evidence does not show that the Veteran’s residual scar, status post left Mumford procedure, left shoulder, is superficial or non-linear, or causes underlying tissue damage, the claim is denied.  38 C.F.R. § 4.118, Diagnostic Code 7802; 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49, 54-56 (1990). 

C.  Musculoskeletal Disabilities

When evaluating musculoskeletal disabilities based on the limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.”  Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, under 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”).

1. Shoulder 

During the pendency of the appeal, the Veteran’s left shoulder disability, status post Mumford procedure, has been rated under Diagnostic Codes 5299-5203 and 5203-5201.  The Veteran is right hand dominant, as reported in various VA examinations.  Therefore, his left arm is considered his minor arm for rating purposes.

Four diagnostic codes govern the rating criteria for the shoulder and arm.

Under Diagnostic Code 5200, a 20 percent is warranted for minor upper extremity, for favorable ankylosis, scapulohumeral articulation (where the scapula and humerus move as one piece), with abduction to 60 degrees, can reach mouth and head.  A 30 percent is warranted with immediate ankylosis between favorable and unfavorable.  A 40 percent is warranted for unfavorable ankylosis, with abduction is limited to 25 degrees from the side.

Under Diagnostic Code 5201, limitation of motion of the arm to shoulder level and limitation of motion of the arm midway between the side and shoulder level warrants a 20 percent evaluation for both major and minor arm.  A 20 percent is warranted for limitation of motion of the arm midway between side and shoulder. A 30 percent is warranted for limitation of motion of the arm to 25 degrees from side to side for the major arm.  The maximum rating under this code is 30 percent for a minor arm disability.  38 C.F.R. § 4.71a, Diagnostic Code 5201. 

Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to the limitation of motion of the arm.”  Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). 38 C.F.R. § 4.71a, Diagnostic Code 5201.

Generally, both measurements of forward flexion and abduction are relevant to determine the range of motion in the affected shoulder to apply Diagnostic Code 5201.  Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003).

Under Diagnostic Code 5202, other impairment of the humerus, a 20 percent is warranted for malunion of both major and minor arm resulting in moderate deformity, or recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level.  A 20 percent is warranted for malunion with moderate or recurrent scapulohumeral dislocation with frequent episodes and guarding all arm movements of the minor upper extremity.  A 40 percent is warranted for fibrous union of the humerus of the minor upper extremity.  A 50 percent is warranted for nonunion (false flail joint) of the minor extremity.  A 70 percent is warranted for loss of head (flail shoulder) corresponds of the minor extremity. 38 C.F.R. § 4.71a.

Diagnostic Code 5203 contemplates impairment of the clavicle or scapula of either the (dominant) or minor (non-dominant) arm.  A 10 percent is warranted for malunion of the clavicle or scapula, major or minor arm; or without loose movement.  A 20 percent is warranted for malunion of the clavicle or scapula with loose movement; or dislocation of a major or minor arm.  38 C.F.R. § 4.71a. 

Normal shoulder flexion and abduction are from 0 to 180 degrees (90 degrees at shoulder level), and normal internal and external rotation is from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I.

a. Entitlement to an initial 20 percent disability rating for status post Mumford procedure, left shoulder (also claimed as history of AC joint disruption, synovitis, and DJD), is granted.

The Veteran was afforded a VA pre-discharge examination in October 2008.  He reported weakness, stiffness, lack of endurance, and dislocation.  He also reported the lack of swelling, heat, redness, give away, locking, and fatiguability.  The left shoulder pain was sharp, localized, spontaneous, and occurred once per day, lasting one hour.  He rated the pain as 6/10.

Upon examination, the flexion was noted at 180 degrees; abduction at 180 degrees, with pain occurring at 120 degrees; and external and internal rotation, both at 90 degrees.  The examiner diagnosed status post left Mumford procedure.

Treatment notes dated in February 2016 indicate the Veteran’s complaint of chronic left shoulder pain, arm strength, and decreased ROM.  The Veteran underwent a VA Shoulder and Arm Conditions examination in March 2016.  The Veteran reported ongoing and daily achy shoulder pain with a loss of strength in his left shoulder.  The pain was rated at “4.5-5/10.”  The examiner noted that the Veteran was right hand dominant and diagnosed s/p Mumford procedure left shoulder.

The Veteran reported flare-ups of the shoulder, with the pain rated 8/10 when the weather gets cold, snowy, or damp.  The Veteran also reported a functional loss/functional impairment of the left shoulder was the inability to hit a punching bag or a ball and the inability to do at least three pushups.

Upon examination, the Veteran’s ROM flexion was abnormal or outside of the normal range.  The flexion was limited to 95 degrees, abduction limited to 80 degrees, external rotation limited to 40 degrees, and internal rotation limited to 45 degrees. The examiner noted that the ROM itself contributed to a functional loss because of difficulty reaching for things above his head.  Concerning the description of pain, the examiner noted that the flexion, abduction, external rotation, and internal rotation exhibited pain.  The examiner noted no pain with weight-bearing or objective evidence of crepitus.  There was, however, localized tenderness or pain on palpation of the shoulder over the top of his left shoulder, proximal to the surgical scar. 

The Veteran was able to perform repetitive use testing with at least three repetitions, and there were additional functional loss or ROM after three repetitions.  The examiner noted that pain, weakness, and endurance were additional functional loss or ROM reported after three repetitions.  The ROM after three repetitions included flexion limited to 80 degrees, abduction limited to 80 degrees, external rotation limited to 40 degrees, and internal rotation limited to 45 degrees.  The examiner noted that additional contributing factors of the disability included less and weakened movement secondary to scar tissue from surgery. 

The muscle strength testing of the left shoulder revealed forward flexion and abduction, with the active movement against some resistance, 4/5.  The examiner noted a reduction in muscle strength due to his s/p Mumford procedure, left shoulder.  There was no muscle atrophy or ankylosis.  The examiner noted a left shoulder rotator cuff condition.  The Hawkins’ Impingement and Empty-can Tests were positive, while the External Rotation/Infraspinatus Strength Test was negative.  The examiner noted that the Lift-off Subscapularis Test was unable to be performed. 

Instability, dislocation, or labral pathology was suspected.  The examiner noted no history of mechanical symptoms, including clicking, catching, etc.  However, she noted a history of recurrent dislocation, subluxation of the left glenohumeral or scapulohumeral joints, as evidenced by infrequent episodes.  The examiner noted that the Veteran had an acromioclavicular (AC) joint condition or an impairment of the clavicle or scapula, as evidenced by his s/p Mumford procedure-surgery distal clavicle, which affected the range of motion of the left shoulder (glenohumeral) joint.  There was no tenderness on palpation of the AC joint.  The Crank apprehension and relocation tests were unable to be performed. The Cross-body adduction test on the left was positive.

The examiner noted no loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus.  The examiner noted that the Veteran did not have malunion of the humerus with moderate or marked deformity. 

Further, the examiner noted that the Veteran had a Mumford procedure in 2008.  There were residuals of the arthroscopic shoulder or other shoulder surgery in the form of less movement and pain with movement.  The examiner also noted that the Veteran had a surgical scar related to his left shoulder condition or treatment, atop of the distal left shoulder and measuring in length 3.5 cm x 1 cm width.  The scar was nontender, keloidal, hyperpigmented, and well-healed. 

The examiner noted that the Veteran used no assistive device and indicated that due to the Veteran’s left shoulder condition, there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well-served by an amputation with prosthesis. 

X-ray imaging showed arthritis.  Regarding functional impact, the examiner noted that the Veteran’s left shoulder disability impacted his ability to perform work involving lifting, assembly line work, cooking, or driving long distances.

The examiner remarked that the Crank Apprehension and Lift-off tests were not able to be performed because the Veteran could not position his left arm because of pain and/or limited ROM.

The Veteran provided a private Shoulders and Arm Conditions examination performed on June 12, 2019.  The physician diagnosed AC joint arthritis and s/p Mumford procedure.  The Veteran reported worsening pain, weakness, and regular flare-ups, causing severe loss of ROM. 

The Veteran reported that during flare-ups of the shoulder, he was unable to lift arm to shoulder level due to severe pain and weakness.  Further, performing any left arm function was difficult due to the inability to hold the arm up with the shoulder muscles.   

The Veteran also reported having functional loss/functional impairment of the left shoulder, with a loss of ROM, pain, weakness contributing to the inability to lift objects overhead or to perform any functions which require the arm weight to be held up by the shoulder muscle for any length of time.  

Upon examination, the left arm flexion was limited to 75 degrees, abduction limited to 75 degrees, external rotation limited to 50 degrees, and internal rotation limited to 50 degrees.  The physician noted that the abnormal ROM contributed to a functional loss. 

The Veteran was able to perform repetitive use testing, and there was no additional loss of ROM after repeat testing.  The pain was noted on examination during repetitive use testing and when the joint was used in weight-bearing or non-weight-bearing and contributed to a functional loss or additional limitation of ROM.  The physician noted moderate tenderness to the AC and glenohumeral joint regions.  The pain was also shown on active and passive movements and weight-bearing and non-weight-bearing.    

Contributing factors of the disability included less movement than normal, weakened movement, excess fatiguability, and pain on movement, attributed to the limitation of motion.  Pain, weakness, fatigability, or incoordination significantly limited the functional ability with repeated use over a period of time.  In terms of estimated ROM during a flare-up or when the joint was used repeatedly over a period of time, the left arm flexion was limited to 35 degrees, abduction limited to 35 degrees, external rotation limited to 40 degrees, and internal rotation limited to 40 degrees.  The additional functional loss not associated with limitation of motion during flare-ups or when the joint was used repeatedly over a period of time or otherwise included pain, weakness, and loss of flexibility. 

The muscle strength testing of the left shoulder revealed forward flexion and abduction, with the active movement against some resistance, 4/5.  The physician noted a reduction in muscle strength due to his AC joint arthritis and s/p Mumford procedure, left shoulder.  There was no muscle atrophy nor ankylosis.  The examiner noted a left shoulder rotator cuff condition.  The Hawkins’ Impingement, Empty-can, External Rotation/Infraspinatus Strength, Lift-off Subscapularis Test, and the Crank Apprehension and Relocation Test were negative.  

Neither instability, dislocation, labral pathology, a history of mechanical symptoms or recurrent dislocation, clavicle, scapula, nor AC joint or sternoclavicular joint condition was suspected.  The physician noted that the Veteran had osteoarthritis of the left AC joint.  There was tenderness on palpation of the AC joint and a positive Cross-Body Adduction Test. 

The physician noted no impairments of the humerus, including loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus; or malunion of the humerus with moderate or marked deformity.

The physician acknowledged the Veteran’s scar associated with his disability and noted no change, and neither pain nor tenderness was reflected on the exam.  

The physician noted that the Veteran used no assistive device and indicated that due to the Veteran’s left shoulder condition, there was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with a prosthesis. 

X-ray imaging showed degenerative nor traumatic arthritis of the left shoulder joint.  Regarding functional impact, the physician noted that the Veteran’s left shoulder disability impacted his ability to work.  He was limited in performing any function requiring lifting of objects overhead or when using the left shoulder to hold arm weight for any period of time.  

The physician remarked that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups or when the joint is used repeatedly over time.  

Based on the evidence presented above, the Board finds that the Veteran’s left shoulder disability more approximates an initial 20 percent rating. When there is evidence of painful motion, 38 C.F.R. § 4.59 operates to provide at least the minimum compensable rating available under the Diagnostic Code for the joint.  Sowers v McDonald, 27 Vet. App. 472, 478 (2016).  Limitation of motion of the arm is governed by Diagnostic Code 5201, and the minimum compensable rating under this Diagnostic Code is 20 percent for the minor arm.  

To warrant a 30 percent rating under Diagnostic Code 5201, there must be a limitation of motion of the left arm (minor arm) to 25 degrees from the side.  The Board notes that the range of motion testing on June 12, 2019 DBQ, the Veteran’s forward flexion, and abduction were limited to, at worst, during a flare-up or when the joint was used repeatedly over a period of time, limited to 35 degrees.  Even when considering his worst limitation of motion after repetitive use testing/flare-ups for rating this claim, his limitation of motion is not more closely described as limited to 25 degrees from the side, even when incorporating functional loss due to the factors outlined in 38 C.F.R. §§ 4.40 and 4.45.  Therefore, a rating higher than 20 percent under Diagnostic Code 5201 is not warranted.  38 C.F.R. § 4.71a.

A rating higher than 20 percent under Diagnostic Codes 5200 or 5202 is also not warranted.  The Board notes that the evidence of record does not show ankylosis or nonunion of the false fail joint.  Neither the VA treatment records note the private DBQ of June 12, 2019, found ankylosis or that the humerus was not within normal limits.  Thus, a rating higher than 20 percent under Diagnostic Code 5200 or 5202 is not warranted. (The Board notes that Diagnostic Code 5203 is not applicable because the maximum rating under this code is 20 percent.)  38 C.F.R. § 4.71a.

The Board notes that the Veteran has already been assigned a separate disability rating for his left shoulder scar. 

The overall disability picture of the Veteran’s left shoulder disability does not more closely approximate a disability rating greater than 20 percent for the left shoulder under the applicable diagnostic codes during the appeal period.  38 C.F.R. § 4.7.  Therefore, the preponderance of the evidence is against this claim, and it must be denied.  38 C.F.R. § 4.3.

2.  Lumbar Spine Disability and Radiculopathy

The Veteran’s lumbar spine disability was initially rated under Diagnostic Code 5242, and recently, under Diagnostic Code 5237, both of which allow for a rating under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).

Under Diagnostic Code 5003, degenerative arthritis is rated based upon the limitation of motion of the affected part.  When limitation of motion is noncompensable, a 10 percent rating is warranted when there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups.  A 20 percent rating is warranted where there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations.  Ratings under Diagnostic Code 5003 cannot be combined with ratings based on the limitation of motion of the same joint.  38 C.F.R. § 4.71a.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003.  In this case, the evidence shows the compensable limitation of motion for the lumbar spine, and therefore, a rating under Diagnostic Code 5003 is not warranted.

Under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5237 and Diagnostic Code 5242, a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height.  38 C.F.R. § § 4.71a.  

A 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 evaluation is warranted when there is forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. 

A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. 

The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved.  38 C.F.R. § § 4.71a.  

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate Diagnostic Code.  Id. at Note (1). 

Under the rating schedule, forward to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered a normal range of motion of the thoracolumbar spine.  Id. at Note 2 and Plate V. 

Ankylosis is the complete immobility of a joint in a fixed position.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (indicating that ankylosis is complete immobility of the joint in a fixed position).

For purposes of assigning evaluations for IVDS 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.  38 C.F.R. §§ 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1.  As no clinician nor VA examiner during the periods on appeal has noted that the has had an incapacitating episode defined by the regulation, the Formula for Rating Intervertebral Disc Syndrome is not applicable. 

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1).

a. Entitlement to an initial disability rating greater than 10 percent for lumbar facet arthritis prior to March 14, 2016, is denied.

The Veteran contends that his lower back disability warrants a higher rating.

During this period on appeal, the Veteran underwent a VA examination in October 2008.  The Veteran reported stiffness, weakness, and constant localized pain, therein.  He reported no numbness, fevers, bladder complaints, malaise, bowel complaints, and dizziness.  He reported losing weight due to the back condition.  The pain was aching and sharp and rated on a scale of 5/10.  The pain was elicited by physical activity and relieved by rest.  He reported no functional impairment from the back condition. 

Upon examination, the examiner noted no evidence of radiating pain on movement, muscle spasm, ankylosis, or bilateral straight leg rising test.  The examiner noted normal posture and gait, but tenderness was noted in the lower spine.  

The range of motion (ROM) testing revealed forward flexion at 90 degrees with pain beginning at 65 degrees; extension at 30 degrees, with pain beginning at 30 degrees; right lateral flexion at 30 degrees, with pain beginning at 30 degrees; left lateral flexion at 30 degrees, with pain beginning at 30 degrees; right rotation at 30 degrees; and left rotation at 30 degrees.  The combined ROM was 240 degrees. 

X-ray finding revealed mild degenerative arthritis of the left L-5-S1 facet joint.  There was no evidence of intervertebral disc syndrome.  The examiner provided the diagnosis of lumbar facet arthritis.

A treatment record dated in August 2013, October 2013, and December 2013 reflect the Veteran’s report of no back pain.  Treatment records dated in January 2015 indicate the Veteran’s complaint of chronic lower back and right hip pain, which had been ongoing for years.  The pain came and went and was rated a 6/10 and moderate.  The Veteran described the pain as more prominent when lying down or sitting up being in active motion.  Upon examination, the spine exhibited no tenderness on palpation, no muscle spasms, and normal ROM.  The pain was, however, noted with hip flexion.  

Treatment notes dated in April and July 2015 indicate the Veteran’s complaint of chronic lower back and right hip pain.  The Veteran rated the pain at a 4/10, moderate.

The record contains no other lay or medical evidence of ROM testing prior to the March 14, 2016 VA examination.   

After review of the evidence for the appeal period before March 14, 2016, the Board finds the Veteran’s service-connected lumbar facet disability was not manifested by forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  38 C.F.R. § 4.71a, Diagnostic Code 5242.  Further, there was only X-ray evidence of arthritis in the left L-5-S1 facet joint, rather than the involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations.  Specifically, the October 2008 VA examination report noted the Veteran’s complaint of tenderness in the lower spine and forward flexion of the lumbar spine to 90 degrees, with pain at 65 degrees and a combined range of motion of 240 degrees.  There was no guarding or muscle spasm. 

The 10 percent disability rating assigned during this period contemplates the Veteran’s back pain and painful limited motion, as noted in the October 2008 examination report.  The Veteran’s reported symptomatology did not, when viewed in conjunction with the medical evidence, establish additional limitations of motion to the degree that would warrant a rating greater than 10 percent for the service-connected lumbar facet disability at any time during this period before March 14, 2016, under 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings in DeLuca and Mitchell.  

Accordingly, a higher rating during this period is not warranted.  

b. Entitlement to a disability rating greater than 20 percent, beginning March 14, 2016, for lumbar facet arthritis, is denied. 

During this period, treatment notes dated March 10, 2016, the clinician noted that the Veteran had new radicular symptoms.  He diagnosed strain of muscle, fascia, and tendon of the lower back, initial encounter, and radiculopathy, lumbar region.

On March 14, 2016, the Veteran was afforded a VA Back (Thoracolumbar Spine) Conditions examination.  He reported sharp pain in the lower spine, rated at 6/10.  He also reported pain going down to his mid left posterior thigh and from the right side, going up and down the spine.

The Veteran reported flare-ups of the thoracolumbar spine with pain occurring randomly and averaging “10/10” every five weeks where he feels “paralyzed.” Last year he had to go to Ireland ER for a pain shot because of the “crippling” pain.

The Veteran reported having functional loss or functional impairment of the thoracolumbar spine (back) (regardless of repetitive use), with cannot lift much or run at all, or walk as far.  The examiner diagnosed lumbar facet arthritis.

The initial ROM testing revealed abnormal or outside of normal range with the forward flexion at 60 degrees; extension at 25 degrees; right lateral flexion at 25 degrees; left lateral flexion at 30 degrees; right lateral rotation at 25 degrees; and left lateral rotation at 20 degrees.  His combined range of motion was 185 degrees. 

The ROM itself did not contribute to a functional loss.  Pain with the extension and left lateral rotation was noted on the examination and caused a functional loss.  There was no evidence of pain with weight-bearing.

The examiner noted objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine.  The Veteran was tender to palpation over his entire thoracolumbar spine.

The examiner noted that the Veteran was able to perform repetitive use testing with at least three repetitions.  There was additional loss of function or ROM after three repetitions, as evidenced by pain.  ROM testing after three repetitions revealed forward flexion ending at 60 degrees; extension ending at 20 degrees; right lateral flexion ending at 20 degrees; left lateral flexion ending at 25 degrees; right lateral rotation ending at 25 degrees; and left lateral rotation ending at 20 degrees.  

The Veteran was not being conducted immediately after repetitive use over time.  The examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time.  

The examiner also reported that the Veteran did not have muscle spasm or guarding.  Regarding additional factors contributing to the disability, the examiner noted disturbance of locomotion, interference with sitting, and interference with standing.  There was increased pain with sitting, standing, or walking too long distances.

Muscle strength testing was noted as normal, 5/5, with bilateral ankle plantar flexion and active movement against some resistance, 4/5 for bilateral hip flexion, knee extension, ankle dorsiflexion, and great toe extension.  The deep tendon reflexes were noted as 2+, normal.  The sensation of light touch for the bilateral upper anterior thigh and thigh/knee was also noted as normal.  The bilateral lower leg/ankle and foot/toes were noted to be of decreased sensation.  The examiner noted no muscle atrophy.

The straight leg raising test was negative bilaterally, indicating the presence of radicular symptoms.  The examiner noted that the Veteran had radicular pain, other signs or symptoms due to radiculopathy, including mild intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness in the right lower extremity.  There was moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness in the left lower extremity.  Regarding the involvement of the nerve roots, the examiner did not respond.  As to the severity of radiculopathy, the examiner selected “not affected.”  As to the side affected, she indicated that neither the right nor left side was affected.  The examiner specifically found no ankylosis of the spine or other neurological abnormalities.  The examiner noted that the Veteran did not have IVDS. 

The Veteran occasionally used braces and canes as a normal mode of locomotion.  The examiner noted that the Veteran bought a cane over the counter and had a prescription for a back brace from Ireland Hospital.  He used both occasionally but did not have either one for the exam.

Imaging studies of the thoracolumbar spine had been performed, and arthritis was not documented.  

The Veteran reported that his back disorder impacted his ability to work because he could not bend a lot and had to get others to help him move heavy things.  When he was teaching, he could not walk and stand much.

Per the May 2014 remand, the examiner was asked to provide an opinion as to the number of weeks of incapacitating episodes during each 12-month period during the pendency of the appeal, if any.  The examiner noted that the Veteran stated that “he thinks he was seen at Ireland ER four times since service connection for his back.  [However,] there is NO documentation found describing incapacitating episodes of low back pain as evidenced by ER visits for his back, other than a recent ER visit for a motor vehicle accident in which [he] was rear-ended and complained of increased back pain.  A back X-ray was negative for acute fracture. She acknowledged that he reported flareups of back pain occurring every five weeks or so, where he was mainly at bed rest for his back.  However, she noted that “no medical visits were found documenting incapacitation.”

Further, the May 2014 remand requested the examiner opine whether the Veteran’s back disability manifested in radiculopathy and any other objective neurological abnormality.  The examiner noted that the Veteran described symptoms of radicular pain in both legs.  However, the EMG test was normal, as was the sensory and motor examination.  She specifically noted that “[a]lthough the Veteran may have [had] subjective radicular-type symptoms, he [did] not have objective findings to indicate a radiculopathy, neuropathy or other nerve conditions.”

Based on the evidence presented above, the Board finds that a greater than 20 percent for the Veteran’s lumbar facet arthritis is not warranted.  The March 2016 VA examiner specifically found that he did not have ankylosis, and the medical and lay evidence of record shows that he can move his spine.  Additionally, the evidence does not show that his forward flexion of the spine was more closely described as 30 degrees or less.  

Even when considering the functional loss as outlined in 38 C.F.R. §§ 4.40 and 4.45, the Veteran’s lumbar facet arthritis is not more closely approximated by the 40 percent criteria.  Additionally, there is no probative medical or lay evidence supporting a finding that the Veteran has forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis.  A 40 percent rating, therefore, is not warranted.

Accordingly, the preponderance of the evidence is against a greater than 20 percent for lumbar facet arthritis.  As a result, an increased rating greater than 20 percent must be denied.  38 C.F.R. § 4.71a, Diagnostic Code 5242.

c. Entitlement to a disability rating greater than 40 percent, beginning June 12, 2019, for lumbar facet arthritis, is denied. 

Treatment notes dated in February 2018 and March 2018 note the Veteran’s complaint of back and bilateral knee pain.  He rated the pain at a 7/10 during both sessions. 

The Veteran provided the findings of a private Thoracolumbar Spine Conditions DBQ conducted on June 12, 2019.  He reported worsening symptoms of pain, loss of ROM, and sensory symptoms of bilateral radiculopathy.  

The Veteran reported having flare-ups, which impacted the thoracolumbar spine.  He reported that the flare-ups limited his sitting and standing for extended periods of time.  Any movement is hindered, making performing routine tasks very difficult. 

The Veteran reported having functional loss or functional impairment of the thoracolumbar spine (regardless of repetitive use), with the inability to stand, sit, or walk for extended periods of time or bend or lift heavy objects.  

The physician diagnosed facet joint arthropathy (degenerative joint disease of the lumbar spine) and radiculopathy.  

The initial ROM testing revealed forward flexion ending at 40 degrees; extension ending at 15 degrees; right lateral flexion ending at 20 degrees; left lateral flexion ending at 20 degrees; right lateral rotation ending at 20 degrees; and left lateral rotation ending at 20 degrees.  His combined range of motion ended at 135 degrees.  The physician noted that the abnormal ROM resulted in a functional loss. 

The physician noted that the Veteran was able to perform repetitive use testing with at least three repetitions.  There was, however, no additional ROM after repetitive testing.  

The physician noted that the ROM movements were painful on active, passive, and/or repetitive use testing.  The pain was noted to contribute to functional loss or additional limitation of ROM.  

The physician noted pain when the joint was used in weight-bearing or non-weight-bearing.  The pain contributed to functional loss or additional limitation of ROM.  

The physician noted that the Veteran had localized tenderness in the moderate central posterior, and it was evenly distributed throughout the central lower lumbar region.  The pain was noted on active and passive movements during weight and non-weight-bearing situations. 

The physician reported that the Veteran had muscle spasm or guarding, as evident by abnormal gait due to both guarding and muscle spasm.  The spinal contour was normal.

The physician noted that contributing factors of the disability included less movement than normal, weakened movement, excess fatiguability, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing.  

The physician noted that the above factors are associated with limitation of motion. 

Pain, weakness, fatiguability, or incoordination significantly limited the functional ability during flare-ups or when the joint was used repeatedly over a period of time.  The forward flexion ended at 30 degrees; extension ended at 10 degrees; right lateral flexion ended at 15 degrees; left lateral flexion ended at 15 degrees; right lateral rotation ended at 15 degrees; and left lateral rotation ended at 15 degrees.  His combined range of motion was 100 degrees.  The physician noted that contributing factors of the disability not associated with limitation of motion included pain, weakness, loss of flexibility, and mobility.

Muscle strength testing in the Veteran’s bilateral hip flexion, knee flexion, and knee extension left knee extension were noted as normal, 5/5.  The bilateral ankle plantar flexion, ankle dorsiflexion, foot abduction, foot adduction, and great toe extension were noted as active movement against some resistance, 4/5.  There was a reduction in muscle strength, and the reduction was entirely due to the lumbar facet disability.  The deep tendon reflexes were noted as 2+, normal for the bilateral knee and 1+, hypoactive, for the bilateral ankle.  The sensation of light touch was also noted as normal for the bilateral upper anterior thigh and thigh/knee.  Other sensory tests, including the position sense and the vibration sensation, were found to have decreased bilateral sensation.  The physician noted no muscle atrophy.

The straight leg rising test was positive bilaterally, indicating the presence of radicular symptoms.  The physician noted that the Veteran had radicular pain, other signs or symptoms due to radiculopathy, including moderate constant pain, intermittent pain, dull pain, paresthesias and/or dysesthesias, and numbness in the bilateral lower extremity.  Regarding other signs and symptoms of radiculopathy, the examiner noted not.  

The nerve roots involved the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) on both sides.  The severity of the radiculopathy was moderate on both sides.  The examiner specifically found no ankylosis of the spine other or neurological abnormalities.  The physician commented that the Veteran showed moderate sensory and subjective symptoms of radiculopathy due to the progression of the lumbar spine condition. The physician noted that the Veteran did not have IVDS of the thoracolumbar spine.

The Veteran regularly used a brace and heating pads/ice assistive device(s) for the normal mode of locomotion.  The physician commented that the Veteran regularly utilized a back brace for day to day and required heating pads and/or ice for pain and stiffness. 

The physician noted that the Veteran’s back disability impacted his ability to work.  The Veteran’s back disability causes limitation in performing frequent bending, stooping, crouching, and turning at the waist, as well as carrying or lifting heavy objects.  The Veteran was able to remain seated for extended periods of time as this causes increased tightness in the lumbar spine, which further hinder functional ability.  Flare-ups cause significant functional loss and lack of ability to perform some routine ADLs making many job-related functions difficult.   

The physician remarked that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups or when used repeatedly over time. 

Based on the evidence presented above, the Board finds that a rating higher than 40 percent for the Veteran’s lumbar facet arthritis of the lumbar spine is not warranted.  His lumbar facet arthritis is not more closely approximated by the next higher 50 percent criteria.  There is no probative medical or lay evidence supporting a finding that the Veteran has ankylosis.  The private DBQ of June 12, 2019, specifically found that he did not.  Additionally, unfavorable ankylosis is defined by regulation.  “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.”  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5).  The Veteran does not have any of these factors.  A 50 percent rating, therefore, is not warranted.  

The Board considers whether a separate evaluation may be warranted for any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under Diagnostic Code 5237 and 5242.  38 C.F.R. §§ 4.71a Note 1.  The Board notes that during the appeal periods, no bladder, bowel, or any other neurological abnormalities other than radiculopathy were associated with the Veteran’s lumbar facet arthritis.

The evaluation of radiculopathy of the bilateral lower extremity is addressed below.

d. Entitlement to a 10 percent disability rating beginning March 10, 2016, for radiculopathy of the right lower extremity, is granted.

e. Entitlement to a disability rating greater than 20 percent, beginning June 12, 2019, for radiculopathy of the right lower extremity, is denied.

f. Entitlement to a 10 percent disability rating beginning March 10, 2016, for radiculopathy of the left lower extremity is granted.

g. Entitlement to a disability rating greater than 20 percent, beginning June 12, 2019, for radiculopathy of the left lower extremity, is denied.

In a rating decision of August 2020, the RO granted service connection for radiculopathy of the bilateral lower extremities as a result of the service-connected back disability, effective June 12, 2019.  Both the right and left lower extremities are rated at 20 percent disabling.  

Paralysis of the sciatic nerve is evaluated under the criteria outlined in 38 C.F.R. § 4.124a, Diagnostic Code 8520.  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. 

Regulations provide that ratings for peripheral neurological disorders are assigned based on 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.  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 levels 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 the 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.  Miller v. Shulkin, 28 Vet. App. 376 (2017). 

Treatment records show the Veteran’s complaints of right hip pain.  Notes dated in January 2015, April 2015, and July 2015 indicate the Veteran’s complaints of chronic lower back and right hip pain, which had been ongoing for years.  An examination in January 2015 of the spine noted pain with hip flexion.  

Treatment notes dated March 10, 2016, noted that the Veteran had new radicular symptoms.  The clinician diagnosed “radiculopathy, lumbar region.”

During the March 2016 VA examination, the examiner noted that the Veteran’s deep tendon reflexes were normal, 2+.  The straight leg raising tests were negative bilaterally.  The muscle strength testing was noted active movement against some resistance, 4/5 for bilateral hip flexion, knee extension, ankle dorsiflexion, and great toe extension.  The sensation of light touch for the bilateral lower leg/ankle and foot/toes was noted to of decreased sensation.  The Veteran reported mild intermittent pain, mild paresthesias and/or dysesthesias, moderate numbness in the right lower extremity and moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness in the left lower extremity.  Although the examiner did not report the involvement of the nerve roots and severity of radiculopathy, she noted that the Veteran described symptoms of radicular pain in both legs, absent EMG findings.  Additionally, as to the severity of radiculopathy and side affected, she had the option to describe the separate symptoms and the overall disability as mild in the right and moderate in the left, but selected “not affected” even after acknowledging the Veteran’s symptoms of radicular pain in both legs. 

During the June 19, 2019 private examination, the physician specifically found that the Veteran’s straight leg rising test was positive, bilaterally.  The bilateral ankle plantar flexion, ankle dorsiflexion, foot abduction, foot adduction, and great toe extension were noted as active movement against some resistance, 4/5.  The deep tendon reflexes were noted as 2+, normal for the bilateral knee and 1+, hypoactive, for the bilateral ankle.  The position sense and the vibration sensation were noted to have decreased bilateral sensation.  

The Veteran had moderate constant pain, intermittent pain, dull pain, paresthesias and/or dysesthesias, and numbness in the bilateral lower extremity.  The nerve roots involved the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) on both sides.  The severity of the radiculopathy was moderate on both sides.  

Based on the evidence presented, the Board finds that the Veteran’s radiculopathy of the bilateral lower extremity involving the sciatic nerve root more closely approximates the 10 percent rating criteria beginning March 10, 2016, and a not greater than 20 percent beginning June 12, 2019.  Treatment notes dated on March 10, 2016, note a diagnosis of lumbar radiculopathy with a March 16, 2016 report of mild intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness in the right lower extremity; and moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness in the left lower extremity.  Although the examiner noted no EMG findings to support the Veteran’s reported symptoms, the Veteran is competent to report on the severity of his radicular pain.  Thus, the Board herein grants a 10 percent for mild radicular symptoms of the right lower extremity and 10 percent for moderate radicular symptoms of the left lower extremity, effective March 10, 2016.  

There is no probative medical or lay evidence of record supporting a finding that the Veteran’s symptoms of his radiculopathy of the right lower extremity were of moderate severity until the findings of the June 12, 2019, private DBQ.  The clinician specifically found that the severity of the radiculopathy on both sides was moderate.  The physician also noted a positive bilateral straight leg rising test, reduced flexion and extension, hypoactive deep tendon reflexes, and decreased vibration sensation in the bilateral leg.  A 40 percent is not warranted since the physician did not find moderately severe radiculopathy.  

Affording the Veteran, the benefit of the doubt, the Board finds that his bilateral lower extremity radiculopathy has been manifested by mild symptoms and best represented by a 10 percent rating beginning March 10, 2016.  However, beginning June 12, 2019, his bilateral lower extremity radiculopathy has been manifested by moderate symptoms and best represented by the currently rated 20 percent rating.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  

3. Knees

Before June 12, 2019, the Veteran’s right knee arthritis had been rated at 10 percent disabling, effective December 01, 2008, under Diagnostic Codes 5299-5003.  However, a rating decision of August 2020, the RO changed the diagnostic codes to reflect the current severity and increased the rating for limitation of extension, which was 10 percent disabling, to 20 percent under Diagnostic Code 5003-5261, effective June 12, 2019; and granted a 10 percent rating for limitation of flexion, under Diagnostic Code 5003-5260, effective June 12, 2019.

Similarly, the Veteran’s patellofemoral pain syndrome of the left knee had been rated 10 percent disabling, under Diagnostic Code 599-5024, effective December 01, 2008.  The rating decision of August 2020, the RO changed the diagnostic codes to reflect the current severity and increased the rating for limitation of extension, from 10 percent disabling to 20 percent, under Diagnostic Code 5003-5261, effective June 12, 2019, through January 28, 2020; and granted a 10 percent rating for limitation of flexion, under Diagnostic Code 5003-5260, effective June 12, 2019, through January 28, 2020.

A hyphenated diagnostic code is used when a rating under one code requires the use of an additional Diagnostic Code to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27.  An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part or system of the body involved; the last two digits will be ”99” for all unlisted conditions.  Id.  Diagnostic Code 5024, for tenosynovitis, directs the rater to rate the veteran’s disability according to the limitation of motion of the affected parts, as one would rate degenerative arthritis.  

Diagnostic Code 5003 applies to degenerative arthritis and instructs that if the limitation of motion is noncompensable, a rating of 10 percent applies for each such major joint or group of minor joints affected by the limitation of motion, to be combined, not added under Diagnostic Code 5003.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a.  The 20 percent and 10 percent ratings based on X-ray findings above will not be combined with ratings based on the limitation of motion.  38 C.F.R. § 4.71a, Note I.

A veteran is not entitled to separate compensable disability awards for arthritis (under Diagnostic Code 5003) and the limitation of motion (under another Diagnostic Code) in the same joint.  Hicks v. Brown, 8 Vet. App. 417 (1995); Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  To separately rate the same symptoms would violate the general rule against the “pyramiding” of benefits.  38 C.F.R. § 4.14. 

There are two diagnostic codes for limitation of motion of the knee; they provide criteria for limitation of flexion and extension of the leg: Diagnostic Code 5260, which governs limitation of flexion of the leg; and Diagnostic Code 5261, which governs limitation of extension of the leg.

Under Diagnostic Code 5260, a 10 percent rating is warranted when flexion is limited to 45 degrees.  A 20 percent rating is warranted when flexion is limited to 30 degrees.  A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a.  Normal flexion is 140 degrees.  38 C.F.R. § 4.71, Plate II.

Under Diagnostic Code 5261, the limitation of extension of the leg, a 10 percent evaluation is warranted when the extension of the leg is limited to 10 degrees.  A 20 percent evaluation is warranted when the extension of the leg is limited to 15 degrees.  A 30 percent is warranted when the extension of the leg is limited to 20 degrees.  A 40 percent evaluation is warranted when the extension of the leg is limited to 30 degrees.  A 50 percent evaluation is warranted when the extension of the leg is limited to 45 degrees.  38 C.F.R. § 4.71a.  The normal extension is 0 degrees.  38 C.F.R. § 4.71, Plate II.

a. Entitlement to an initial rating greater than 10 percent for arthritis of the right knee (claimed as arthralgia) is denied. 

b. Entitlement to a disability rating greater than 20 percent for arthritis of the right knee, with limitation of extension, beginning June 12, 2019, is denied.

c. Entitlement to a disability rating greater than 10 percent for arthritis of the right knee, with limitation of flexion, beginning June 12, 2019, is denied.

d. Entitlement to an initial rating greater than 10 percent for left knee disability is denied.

e. Entitlement to a disability rating greater than 20 percent for left knee patellofemoral syndrome, with limitation of extension, beginning June 12, 2019, is denied.

f. Entitlement to a disability rating greater than 10 percent for left knee patellofemoral syndrome, with limitation of flexion, beginning June 12, 2019, is denied.

The Veteran avers that during the periods on appeal, higher disability ratings are warranted than those currently assigned for his bilateral knee disability.  

The Veteran was afforded a VA examination in October 2008.  Regarding the right knee, the Veteran reported pain, swelling, giving away, locking, and dislocation.  The pain is aching, localize, and occurring four times weekly and lasting for about one hour, and rated at 5/10.  He reported no functional impairment.  The examiner found no edema, weakness, effusion, tenderness, redness, heat, subluxation, guarding of movement, genu recurvatum, or locking pain.  The examiner noted crepitus in the right knee. 

The ROM testing in the bilateral knee revealed flexion at 135 degrees, with pain beginning at 135 degrees.  Extension at 0 degrees, with pain beginning at 0 degrees.  The examiner noted that after repetitive use, joint function was additionally limited by pain and lack of endurance.  

Neither fatigue, weakness, nor incoordination additionally limited the function after respective use testing.  Instability tests were negative.  X-rays showed mild degenerative arthritis changes.  The examiner diagnosed degenerative arthritis/arthralgia.  The subjective factor right knee pain.  The objective factors X-ray finding showing degenerative arthritis in the right knee joint.  

The motor function of the right knee was within normal limits, as was the sensory function.  The right lower extremity reflexes revealed knee jerk 2+ and ankle jerk 2+.  

Regarding the left knee, the Veteran reported pain, stiffness, swelling, and fatiguability.  The pain was aching, localize, spontaneous, could be precipitated by kneeling, squatting, or stair climbing.  The pain was rated at 4/10.  Regarding functional impairment, the Veteran reported a severe lack of use of the left leg.  The examiner found no edema, weakness, effusion, tenderness, redness, heat, subluxation, guarding of movement, genu recurvatum, or locking pain.  Crepitus was noted in the left knee. 

The ROM testing revealed flexion at 135 degrees, with pain beginning at 135 degrees.  Extension at 0 degrees, with pain beginning at 0 degrees.  The examiner noted that after repetitive use, joint function was additionally limited by pain and lack of endurance.  Neither fatigue, weakness, nor incoordination additionally limited the function after respective use testing. Instability tests were negative, with normal X-rays.  The examiner diagnosed left knee patellofemoral syndrome.  

The subjective factor was a history of left knee pain precipitated by stair climbing, kneeling, or squatting.  The objective factor was based on clinical history, X-ray finding of left patella crepitus.  

The motor function of the left knee was within normal limits, as was the sensory function.  The left reflexes revealed knee jerk 2+ and ankle jerk 2+.

In addition to the above pre-exit VA examination, the evidence of record contains treatment records showing complaints of bilateral knee pain and VA examination findings. 

During a January 2011 clinical visit, the Veteran complained that his knees were gradually getting worse, with the left greater than the right, with swelling.  Motrin helped a little.   

Treatment notes dated in December 2013 indicate the Veteran’s report of having twisted his left knee and felt a pop a month earlier while in Atlanta.  He was told he had a torn meniscus.  

Treatment notes dated in December 2013 indicate a painful left knee.  X-ray findings revealed small joint effusion, moderate tear along the posterior horn of the margin of the meniscus, and early arthritic changes in the left knee. 

Treatment notes reflect that the Veteran underwent a left lateral meniscectomy on February 13, 2014, and a right lateral meniscectomy on May 5, 2014.  During the follow-up examination of June 2014, the Veteran reported feeling better with minimal pain.  There was intermittent discomfort when he ambulated and arose from a sitting position.  Buckling was not reported. 

Treatment notes dated in April 2014 and March 2015 indicate complaints of bilateral knee pain.  In April 2014, he rated the pain level at a 6/10. 

Treatment notes dated in February 2015 reflect that the Veteran was fitted with bilateral hinged knee braces, and in March 2015, he was seen for a follow-up injection in the right knee.

Treatment notes dated in April 2015 note the Veteran had been diagnosed with osteoarthritis in the left knee and rated the pain at a 4/10.  

Treatment notes dated in May 2015 indicate a follow-up for bilateral knee pain with arthritis.  He rated the bilateral knee pain at a 1/10.  

In January 2016, the Veteran reported bilateral knee and right hip pain.  He rated the knee pain at an 11.  In February 2016, he rated the knee and hip pain at a level of 9/10.  

Treatment notes dated in August 2017, February 2018, and March 2018 indicate the Veteran’s complaint of bilateral knee pain.  In August 2017, he rated the pain at a 6/10, while in February 2018 and March 2018, he rated the pain at a 7/10.

The Veteran underwent a VA examination in March 2016.  The Veteran reported that he had both knees scoped in 2014, and he was told that his pain was from torn menisci and the lack of cartilage in the knees.  He had sharp and daily bilateral knee pain, rated at 6/10.  His stated that his knees occasionally swelled and the right knee is weak.  The examiner diagnosed left knee patellofemoral pain syndrome and degenerative arthritis of the right knee.

The Veteran also reported flare-ups with pain in the bilateral knee if he walked more than 1/2 mile.  There was a functional loss or functional impairment with the inability to run, jump, crawl on his knees, play with his grandson, and difficulty walking up the stairs.

The ROM testing revealed right knee forward flexion at 0 to 120 degrees and extension 120 to 0 degrees.  The ROM itself did not contribute to functional loss.  The examiner noted that pain was noted on examination but did not result in/cause functional loss.  The examiner also noted that the flexion exhibited pain.  Pain with weight-bearing was noted, as was localized tenderness or pain on palpation over the lateral and inferior aspect of the right knee patella.  Crepitus was not noted.

The ROM testing revealed left knee forward flexion at 0 to 125 degrees and extension at 125 to 0 degrees.  The ROM itself did not contribute to functional loss.  The examiner noted that pain was noted on examination but did not result in/cause functional loss.  The examiner also noted that the flexion exhibited pain.  Pain with weight-bearing was noted, as was localized tenderness or pain on palpation over the lateral and inferior aspect of the right knee patella. The Veteran was able to perform repetitive motion testing with three repetitions. 

Additional factors contributing to the bilateral knee disability included disturbance of locomotion and interference with standing.  The pain was noted with walking and standing after a period of time. 

The muscle strength testing of the bilateral knee revealed flexion and extension at 4/5, active movement against some resistance.  There was a reduction in muscle strength, which was entirely due to the diagnosed disabilities.  Neither muscle atrophy nor ankylosis was noted. 

The joint stability testing of the bilateral knee revealed no history of recurrent subluxation, lateral instability, or recurrent effusion.  Joint instability testing of the bilateral knee was performed and revealed no joint instability.  The anterior instability, posterior, medial, and lateral stability of the bilateral knee were normal.   

The examiner noted that the Veteran did not have “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. 

The examiner also noted that the Veteran had a meniscus (semilunar cartilage) condition affecting the bilateral knee but no current symptoms.  The examiner noted that the Veteran had a right side lateral arthroscopic meniscectomy in May 2014 and a left lateral arthroscopic meniscectomy in February 2014.  

The examiner noted that the Veteran had a scar of the knee, but it was not painful nor unstable, and measured length 0.7 cm x width 0.2 cm.  The examiner commented that the surgical scar was a well-healed, barely visible, nontender, flat, and located scar on the medial upper anterior knee; lateral lower area of the right knee with 1 cm x 0.2 cm well-healed barely visible, flat, nontender surgical scar.  The left knee scar was barely visible, well-healed, flat, nontender, and located on the upper lateral aspect of the left and measured 1 cm x 0.8 cm.  Also, there was a non-keloidal, barely visible, nontender, well-healed flat, and measured 1 cm x 0.1 cm.  On the lower medial left knee, there was a well-healed, barely visible, flat, nontender surgical scar measuring 1.5 cm x 0.2 cm. 

The Veteran regularly used bilateral knee braces as s a normal mode of locomotion. 

The examiner noted that the Veteran’s knee disabilities impacted his ability to work because he would not be able to function in jobs requiring a lot of walking or standing.

In the remarks section, the examiner noted the Veteran’s clinical history of the left knee meniscal tear, swelling and joint pain, pre-bilateral meniscectomies of February and May 2014, and post lateral meniscectomy complaints of bilateral knee pain, knee injections. 

Specifically addressing the clinical records generated in 2016, the examiner noted that the treatment records of March 28, 2016, noted a Part 1 visit for New Hire pre-employment exam for Motor Vehicle Operator for Sam Adams, wherein the Veteran reported having had bilateral knee arthritis and bilateral knee arthroscopy, but currently in good health.  

The functional examination revealed general bilateral: stationary lifting was required with the patient capable of lifting 50 pounds with proper lifting technique.  The March 30, 2016, Part II follow-up visit noted that the Veteran reported pain localized to one or more joints and a reported history of arthritis bilateral knee involvement, [and] denied issue performing regular duties.  A review of Musculoskeletal systems [revealed] no back pain, no muscle aches, localized joint swelling, and no limb pain.  Functional examination revealed General/bilateral: Mobility was not limited. No lower extremity weakness.  Normal gait/stance.  Assessment/Plan: 1. Encounter for pre-employment examination:  Employee denies any medical condition that would alter the performance of required duties.  Exam not concerning for any medical conditions that would impair employee’s ability to perform duties described in PD.

The Veteran in June 2019 provided a private DBQ.  He reported a severe lack of ROM, and consistent flare-ups affect the knees.  The Veteran also reported severe flare-ups.  The flare-ups caused him to lose function while walking, sitting, standing, and climbing stairs.  Walking or sitting for extended periods caused flare-ups, and flexibility and ROM are severely reduced due to the resulting pain and immobility.  

Regarding functional loss or functional impairment, the examiner noted that the Veteran could no longer stand, sit or walk for extended periods without causing severe pain and tightness in the knees.  The knees regularly tighten, causing the inability to regain flexibility and some ROM without severe pain and physical manipulation. 

The physician diagnosed patellofemoral pain syndrome of the left knee, degenerative joint disease of the right knee, and bilateral meniscus tear.

The ROM testing revealed bilateral knee forward flexion ended at 65 degrees and extension ended at 10 degrees.  The ROM itself contributed to functional loss.  

The Veteran was able to perform repetitive motion testing with three repetitions. The physician noted no change in ROM, or additional loss of ROM, after the repetitive testing in the bilateral knee. 

The physician noted pain on active, passive, and/or repetitive use testing in the bilateral knee.  The pain contributed to the functional loss or additional limitation of ROM.  

The pain was noted when the knee joints were used in weight-bearing, and the pain contributed to a functional loss or additional limitation of ROM.  The pain was noted on examination but did not result in/caused functional loss. 

The physician also noted moderate localized tenderness or pain on palpation over the lateral and medial aspects of the bilateral knee patella.  The physician noted that the Veteran showed pain in both the flexion and extension movements of the bilateral knee.  The pain was shown on active and passive movements and during weight and non-weight-bearing.  Objective evidence of crepitus was noted in the bilateral knee.

The physician noted that contributing factors of the Veteran’s bilateral knee disabilities included less movement than normal, weakened movement, excess fatiguability, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing. 

The physician noted that pain weakness, fatiguability, or incoordination significantly limited the functional ability with flare-ups or when the joint was used repeatedly over a period of time.  In terms of estimated ROM, the forward flexion of the bilateral knee was noted as 45 degrees and the extension at 15 degrees.  There was functional loss during flare-ups or when the knee joints were used repeatedly over a period of time, as evidenced by pain, weakness, loss of flexibility, and mobility. 

The muscle strength testing of the bilateral knee revealed flexion and extension of 4/5, active movement against some resistance.  There was a reduction in muscle strength, which was entirely due to the diagnosed disabilities.  Neither muscle atrophy nor ankylosis was noted. 

The joint stability testing of the bilateral knee revealed no history of recurrent subluxation, lateral instability, recurrent effusion.  Joint instability testing of the bilateral knee was performed and revealed no joint instability.  The anterior instability, posterior, medial, and lateral stability of the bilateral knee were normal.   

The physician noted that the Veteran did not have “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment.  The physician noted no evidence of acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing of the left knee.

The examiner also noted that the Veteran had a meniscus (semilunar cartilage) condition, including bilateral meniscal tear and frequent episodes of joint pain.  The examiner noted that the Veteran dealt with frequent residual pain and tightness related to meniscal tears and repair surgeries.    

The physician noted that the Veteran had a bilateral meniscectomy/meniscal tear in February 2014, and the residuals are weakness, pain, and loss of ROM in the bilateral knee. 

The physician noted that the Veteran did not use any assistive devices for normal mode of locomotion.  

The physician noted that imaging studies of the knees show degenerative or traumatic arthritis of the right knee. 

The physician noted that the Veteran’s knee disabilities impacted his ability to work because the knees are aggravated and painful with walking, bending, and going upstairs.  The Veteran was not able to sustain prolonged standing or walking for extended periods without severe pain and tightness, which further causes limitation in ROM and ability to straighten the leg without physical manipulation.  

The physician remarked that the examination is medically consistent with the Veteran’s statements describing functional impairment during flare-ups or when used repeatedly over time.

Reviewing the evidence presented above, the Board finds that an initial evaluation greater than 10 percent is not warranted for the Veteran’s right knee arthritis and left knee patellofemoral pain syndrome.  While factors such as pain and weakness have been considered, they have not been shown to result in additional functional limitations consistent with the limitation of motion associated with the next higher rating of 20 percent under Diagnostic Codes 5260 or 5261, which requires the limitation of flexion to 30 degrees or limitation of extension to 15 degrees.  Here, the criteria are not met or approximated until the June 12, 2019, private DBQ.  

Before the findings of the June 12, 2019, private DBQ, the Veteran’s bilateral knee disability warranted a noncompensable rating for each knee when viewed strictly from the range of motion criteria under Diagnostic Code 5260 and 5261. Nonetheless, because the Veteran experienced pain on motion, he was entitled to the minimum compensable evaluation, a 10 percent, for each knee joint, based on painful motion.  38 C.F.R. §§ 4.40, 4.45, 4.59.  

The Veteran’s treatment records did not show greater limitation of motion than the examination findings, nor were there any lay statements of evidence indicating the requisite limitation of motion necessary for a higher or separate rating.  There were no X-ray findings of arthritis of both knee joints with incapacitating exacerbations under Diagnostic Code 5003.  Therefore, a higher or separate rating was not warranted based on limitation of motion or X-ray findings.  38 C.F.R. § 4.71a, Diagnostic Codes, 5003, 5260 or 5261. 

During the June 12, 2019, private knee and lower leg DBQ, the ROM with the extension was noted as 15 degrees, and the flexion was 45 degrees during flare-ups or when the joint was used repeatedly over a period of time.  Therefore, the criteria for a 10 percent for the limitation of flexion and a 20 percent for the limitation of the extension were met for the Veteran’s bilateral knee disability.  38 C.F.R. § 4.71a, Diagnostic Codes, 5003, 5260 or 5261. (The Board notes that now with the limitation of ROM, the previous diagnostic codes were converted to reflect the limitation of ROM findings of the June 2019 DBQ.)

An evaluation greater than 10 percent is not warranted for either knee under Diagnostic Code 5260 for the limitation of flexion and an evaluation greater than 20 percent under Diagnostic Code 5261. While factors such as pain and weakness have been considered, they have not been shown to result in additional functional limitations consistent with the limitation of motion associated with the next higher rating of 20 percent and 30 percent under Diagnostic Codes 5260 and 5261.  38 C.F.R. §§ 4.40, 4.45, 4.59.  To warrant a 20 percent under Diagnostic Code 5260, there must be the limitation of flexion to 30 degrees.  To warrant a 30 percent rating under Diagnostic Code 5261, there must be the limitation of extension to 20 degrees.  Here, the criteria for neither are not met or approximated.

During the period before, and beginning June 12, 2019, the Veteran was able to move the bilateral knee; therefore, there was no ankylosis.  Regarding instability, the Board notes the February 2015 treatment note reflecting that the Veteran was fitted with bilateral hinged knee braces.  Nonetheless, he did not report experiencing instability of his bilateral knee, and the evidence does not support a finding of instability, recurrent subluxation, and lateral instability.  Further, there has not been shown any impairment of the tibia or fibula or genu recurvatum in the bilateral knee.  Accordingly, a separate evaluation under Diagnostic Codes 5256, 5257, 5262, and 5263 is not warranted. 38 C.F.R. § 4.71a.  

The law does not preclude the assignment of a separate rating for a meniscal disability of the same knee under Diagnostic Code 5258 or 5259 when a knee is rated under other diagnostic codes.  Lyles v. Shulkin, 29 Vet. App. 107 (2017).  Here, crepitus was noted in the bilateral knee, and treatment notes in December 2013 indicate X-ray findings of a small joint effusion and moderate tear along the posterior horn of margin of the meniscus, in the left knee joint, there were no findings of nor reports of frequent locking in either the left knee or right knee joint.  The Veteran had arthroscopic surgery on the left knee in May 2014 and on the right in February 2014.  While the Veteran has reported pain before and since the bilateral knee arthroplasty, the June 2019 private clinician specifically noted that the residuals were weakness, pain, and loss of ROM in the bilateral knee.

As there is no evidence of record that the Veteran’s bilateral knee meniscus has been dislocated and there are no complaints of episodes of “locking” or effusion into the joint, separate ratings under 5258 are not warranted.

Regarding a separate 10 percent under Diagnostic Code 5259 for cartilage, semilunar removal of symptomatic, the Board finds that such is not warranted for either knee, for the symptoms of the Veteran’s knee disabilities and functional impairments thereof have already been compensated under Diagnostic Codes 5003, 5260, and 5261, all of which compensates his painful, limited motion and functional impairment due to the factors outlined in 38 C.F.R. §§ 4.40 and 4.45. 

Accordingly, the preponderance of the evidence against a finding for an initial disability rating greater than 10 percent for arthritis of the right knee and an initial disability rating greater than 10 percent for left knee patellofemoral syndrome.  The preponderance of the evidence against a finding for a higher than 20 percent rating for the limitation of extension for the bilateral knee beginning June 12, 2019.  Thus, the benefit of the doubt rule is not for application, and the claim must be denied.  38 C.F.R. § 4.3; Gilbert, 1 Vet. App. 49, 54-56 (1990).  

The Board notes that on January 28, 2020, the Veteran underwent a total left knee arthroplasty after nonoperative measures had failed to provide adequate relief.  In a rating decision of August 2020, the RO assigned a temporary 100 percent for total knee arthroplasty under 38 C.F.R. § 4.30, effective from January 28, 2020, through February 28, 2021, based on surgical treatment necessitating convalescence.  As the termination of the 100 percent temporary total rating ends on February 28, 2021, the Board currently does not have jurisdiction to address the pending 30 percent rating, which starts on March 01, 2021.    

4. Bilateral Pes Planus

a. Entitlement to an initial compensable disability rating for bilateral pes planus with plantar fasciitis before March 14, 2016, is denied.

b. Entitlement to a disability rating greater than 10 percent for bilateral pes planus with plantar fasciitis beginning March 14, 2016, is denied.

The Veteran contends that his bilateral pes planus warrants a compensable disability rating before March 14, 2016, and a greater than 10 percent thereafter.

Under Diagnostic Code 5276, a noncompensable rating is warranted for mild symptoms relieved by built-up shoe or arch support.  A 10 percent evaluation is warranted for acquired flatfoot, both bilateral and unilateral, that is moderate in severity with a weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation, and use of the feet.  A 30 percent rating is warranted for severe bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities.  A 50 percent evaluation is warranted for pronounced bilateral pes planus, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.71a, Diagnostic Code 5276.

The criteria in Diagnostic Code 5276 are not conjunctive. “Cases in which the Court has indicated that § 4.21 applies are those in which the diagnostic criteria are not clearly joined in the conjunctive.”  Camacho v. Nicholson, 21. Vet. App. 360, 366 (2007); Dyess v. Derwinski, 1 Vet. App. 448 (1991) (holding that 38 C.F.R. § 4.21 specifically applies to Diagnostic Code 5276).

During the VA August 2008 examination, the Veteran reported bilateral foot pain. When there was a pain in the left foot, he could not function unless it was relieved by massaging the foot.  The pain in the right foot was intermittent and required bed rest when it occurred.  The Veteran reported no functional impairment.  

Upon examination, the examiner noted bilateral foot tenderness.  There was no painful motion, edema, disturbed circulation, weakness, and atrophy of the musculature.  There was active motion in the metatarsophalangeal joint of the bilateral great toe.  The gait was noted within normal limits, and the examiner noted no signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern. 

The examiner found bilateral pes planus present.  Additionally, on the right foot, there was a slight degree of valgus, which the examiner noted could not be corrected by manipulation.  There was no forefoot/midfoot mal-alignment or deformity such as inward rotation of the superior portion of the os calcis, medial tilting of the upper border of the talus, marked pronation, or the whole foot everted. 

On the left, the examiner also noted a slight degree of the valgus present, which cannot be corrected by manipulation.  The left foot showed no forefoot/midfoot mal-alignment or deformity such as inward rotation of the superior portion of the os calcis, medial tilting of the upper border of the talus, marked pronation, or the whole foot everted.  There was no limitation with standing and walking, and he required arch supports.  The symptoms and pain were relieved by the corrective shoe wear. 

X-ray findings of the bilateral foot revealed a low calcaneal pitch angle of 12 degrees, reflecting pes planus.  The VA examiner diagnosed bilateral pes planus and plantar fasciitis. 

The Veteran underwent a VA Foot Conditions, including Flat Foot examination in March 2016.  The Veteran reported daily achy pain of 3/10 in both feet with a sharp pain in the area of the old fractures, which came and went.  He also reported having had prescription orthotics.

The examiner diagnosed bilateral flat foot, plantar fasciitis, and foot injury s/p fracture L 4-5th metatarsal shafts.

The Veteran reported that flare-ups impacted the function of the bilateral foot.  He reported flare-ups of 7/10 pain when the weather changes.  Regarding functional loss/impairment with flare-ups, the Veteran reported that he could not walk on his toes nor stand very much.  

The examiner noted that the Veteran had pain on use of both feet; however, the pain was not accentuated on use.  There was no manipulation of the feet or any indication of swelling on use or characteristic callouses.

The examiner noted that the Veteran tried bilateral arch supports and orthotics, but the disability remained symptomatic.  

The examiner noted that the Veteran did not have extreme tenderness of the plantar surfaces, objective evidence of marked deformity, marked pronation, nor did the weight-bearing line fall over or medial to the great toe of one or both feet.  The Veteran, however, had decreased longitudinal arch height of both feet on weight-bearing.  

The examiner noted a lower extremity deformity other than pes planus, causing alteration of the weight-bearing line on the bilateral foot.  He noted a minimal degree of valgus to the bilateral foot when the Veteran stood up.  

The examiner noted that the Veteran did not have “inward” bowing of the Achilles tendon (i.e., hindfoot valgus, with lateral deviation of the heel) of one or both feet or marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on the manipulation of one or both feet.  The examiner noted no pain on examination of the bilateral foot.  However, the Veteran reported pain with walking and standing after a period of time.  

The examiner noted that the Veteran occasionally used prescription orthotics as an assistive device as a normal mode of locomotion.  The examiner noted that on the day of the examination, the Veteran wore not regular shoes but rather, his house slippers.

Per the May 2014 remand, the examiner remarked that the Veteran did not have objective evidence of the weight-bearing line fall over or medial to the great toes, inward bowing of the tendo Achilles, or observable pain on manipulation and use of the feet, nor objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, nor objective evidence of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation.  Further, she remarked that since the Veteran did not report with orthopedic shoes or orthotics, a determination as to whether orthopedic shoes or orthotics can improve his bilateral flat foot condition with plantar fasciitis was not able to be established.

Based on a review of the records, entitlement to an initial compensable evaluation for this bilateral pes planus is not warranted.  The evidence of record before March 14, 2016, shows that the Veteran’s bilateral mild painful pes planus was relieved by the corrective shoe wear.  Further, there has been no diagnosis of degenerative arthritis established by X-ray findings; rather, just a low calcaneal pitch angle of 12 degrees reflecting pes planus and a diagnosis of bilateral pes planus plantar fasciitis.  Therefore, before March 14, 2016, the overall disability picture for the Veteran’s pes planus was not more accurately described as being moderate in severity with a weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet.  Thus, the criteria for a compensable rating are not met, and the claim must be denied. 

During the VA examination of March 14, 2016, the examiner noted that the contributing factors of the bilateral foot disability were pain on weight-bearing, disturbance of locomotion, and interference with standing.  Based on this finding, the RO increased the Veteran’s rating from noncompensable to 10 percent, effective March 14, 2016.  As there is no objective medical evidence or lay statements supporting severe marked deformity, pain on manipulation and use accentuated, and characteristic callosities, the Board finds the Veteran’s bilateral pes planus does not more closely approximate the higher rating of 30 percent or more.  Therefore, the preponderance of the evidence is against an increased disability rating greater than 10 percent, beginning March 14, 2016.  38 C.F.R. § 4.3.   

The Board notes that the Veteran is competent to report that his disability is worse than evaluated before and beginning March 14, 2016.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Board has considered his statements of record, including the March 14, 2016 reports of pain severity of 7/10, the inability to walk on his toes or stand very much during flare-ups, and even with his bilateral arch supports/orthotics, his disability remained symptomatic.  However, the Veteran has not reported, nor does the evidence show that his bilateral pes planus is severe or has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation.  Therefore, as the Board finds that the reported symptoms and functional loss during flare-ups would not result in symptoms more nearly approximating the 30 percent rating or higher, beginning March 14, 2016. 

The Veteran has been diagnosed with status post fracture, 4th and 5th metatarsal shafts, left foot, which has been separately rated under Diagnostic Code 5299-5284 since December 01, 2008.  38 C.F.R. § 4.71a. 

The Veteran’s service-connected disability is categorized as “bilateral pes planus with plantar fasciitis.”  Prior to February 7, 2021, plantar fasciitis did not have a Diagnostic Code.  Therefore, the application of Diagnostic Code 5284 must be considered for this unlisted condition.  Scott v. Wilkie, 920 F.3d 1375 (2019).   Under Diagnostic Code 5284, a 10 percent rating is warranted for a moderate injury.  A 20 percent rating is warranted for a moderately severe injury.  A 30 percent rating is warranted for a severe injury.  A 40 percent rating is warranted with actual loss of use of the foot.  38 C.F.R. § 4.71a.  Although the plain language of Diagnostic Code 5284 limits its application to disabilities resulting from actual injuries, the Board must consider whether the Veteran’s plantar fasciitis may be rated by analogy.  Yancy v. McDonald, 27 Vet. App. 484, 493 (2016).  

The Veteran’s symptoms are pain, pain on manipulation, tenderness, and use of orthotics.  These are contemplated by the criteria in Diagnostic Code 5276 such that a separate ratting under Diagnostic Code 5284 would constitute pyramiding.  

Beginning February 7, 2021, Diagnostic Code 5269 contemplates plantar fasciitis.  Under Diagnostic Code 5269, a 30 percent rating is warranted when there is bilateral plantar fasciitis with is no relief from both non-surgical and surgical treatment.  A 20 percent rating is warranted for unilateral plantar fasciitis when there is no relief from both surgical and non-surgical treatment.  Otherwise, a 10 percent rating is warranted for unilateral or bilateral plantar fasciitis.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269).  Note (1) to Diagnostic Code 5269 states that a 40 percent rating is warranted with actual loss of use of the foot.  Note (2) states that if a veteran has been recommended for surgery, but is not a surgical candidate, plantar fasciitis is to be evaluated under the 20 percent or 30 percent criteria, whichever is applicable.  

The Veteran has bilateral plantar fasciitis.  Therefore a 10 percent rating is warranted. A higher rating is not warranted because the higher criteria both require that there be no relief from “both” surgical and non-surgical treatment.  The Veteran has not had surgical treatment for his plantar fasciitis, nor has surgery been recommended for his plantar fasciitis.  The 10 percent rating is granted effective February 7, 2021, the date that the regulation became effective.  

III.	A TDIU is warranted. 

Total disability exists when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340 (a)(1).  A total disability rating for compensation purposes may be assigned based on individual unemployability: that is, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16 (a).

Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age.  38 C.F.R. §§ 3.341 (a), 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993).  When the Board conducts a TDIU analysis, it must consider the Veteran’s education, training, and work history.  Pederson v. McDonald, 27 Vet. App. 276 (2015).

The Veteran has been service-connected since December 01, 2008, for a host of disabilities, including service-connected obstructive sleep apnea, rated at 50 percent disabling during the entire period on appeal.  Thus, the Board finds that the schedular criteria for a TDIU are met since December 01, 2008.

During the period on appeal, the Veteran has contended that he has been unable to obtain and maintain substantially gainful employment because of his service-connected disabilities.  

The evidence of record includes the April 2016 determination by a Vocational Rehabilitation Counselor (VRC) with the Veteran Readiness and Employment Services (VR&E), who deemed the Veteran unemployable due to his limitations in education, training, and job-seeking skills.  Further, the VRC noted that the Veteran met the criteria for an employment handicap because his service-connected disabilities contribute substantially to vocational impairment.  

Per the May 2014 Board remand, the VA examiner was asked to determine whether the Veteran’s service-connected disabilities, alone or in the aggregate, rendered him unable to secure or follow a substantially gainful occupation.  In April 2016, the VA examiner proffered a negative opinion and stated this Veteran is not totally disabled from his service-connected conditions, nor was he a candidate for TDIU.  She explained that the “[t]he [V]eteran’s service-connected conditions of sleep apnea (treated), restless leg syndrome (treated), s/p malaria, hypertension (treated and asymptomatic), hemorrhoids, right varicocele, erectile dysfunction, and residual scars on the left shoulder (asymptomatic) and right inguinal area (asymptomatic) would not impair his ability to secure or follow any substantially gainful occupation. 

Regarding his service-connected lumbar facet arthritis, DJD right knee, PFS left knee, left shoulder condition, bilateral pes planus with fasciitis, and s/p fracture 4-5th MT shafts left foot, right hand MCP joint right hand arthritis, costochondritis, cardiomyopathy, lipomas bilateral forearms, and ganglion cysts bilateral hands, she noted that the Veteran reported that he could do sedentary work, including desk and computer work using an ergonomic chair with a back and would need to change position every 30-45 minutes.  He also reported not being able to perform any lifting.  Notwithstanding, she concluded that “he can do at least moderate work involving lifting 50 pounds.”

While the Board acknowledges the examiner’s findings, the Board finds that the examiner failed to address the Veteran’s service-connected disabilities in the aggregate and explain what kind of sedimentary/desk/office positions the Veteran would qualify for in light of his education and work experience.  Further, the examiner seemed to base her negative decision on the fact that the Veteran attended a March 2016 Occupational Examination for employment for a position of a motor vehicle driver for a beer company and was recommended for hire.  The Board affords this opinion low probative weight in a finding for a TDIU.

The Board finds that the Veteran's service-connected disabilities, when taken together, preclude him from securing or following substantially gainful employment, physical or otherwise. 

The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ.  Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  Reviewing the totality of the evidence, however, including the Veteran’s current medical findings detailing the severity of his service-connected disabilities, the competent and credible lay assertions of unemployability due to limitations caused by the service-connected disabilities, and the cumulative objective evidence of record, the Board finds that the Veteran’s service-connected disabilities, coupled with his educational/training background and employment history, likely precludes him from securing and following any substantially gainful employment.

Accordingly, resolving all doubt in the Veteran’s favor, the Board finds that entitlement to TDIU is warranted for the period from December 01, 2008.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 (1990).

REASONS FOR REMAND

1. Timelines of the appealed issues in August 2010 decision.

The Board notes that the previous remand of May 2014 found that the Veteran, in March 2011, filed a timely NOD as to the RO’s August 2010 administrative decision.  The administrative decision found that a timely appeal had not been received as to a January 2009 rating decision that denied service connection for arcus senilis, gastritis, and dermatitis and denied compensable disability ratings for 4th and 5th metatarsal shafts of the left foot, costochondritis, post status malaria, right varicocele, hemorrhoids, and scar post testicular surgery.  As the RO did not issue the mandated SOC, the timeliness issues are herein remanded for the issuance of a SOC.  Manlincon v. West,12 Vet. App. 238, 240-241 (1999).

2. Entitlement to service connection for a chronic disability manifested by left hand pain is remanded.

The Veteran contends that he has a chronic disability manifested by left hand pain that was incurred in service.  

The Veteran’s STRs, dated in December 1995, note a cystic lesion on the left hand and a diagnosis of multiple lipomas, which later was evaluated as a ganglionic cyst.  The Board notes that the Veteran has since been compensated by VA for a ganglion cyst of the left hand and left forearm lipoma.  

The Veteran was afforded a VA examination in October 2008.  He reported hand pain lasting 10-20 hours and occurring spontaneously, twice weekly, absent any in-service injury or trauma to the hand.  He described the pain as squeezing and sharp and rated from 1-10, with 10 being the worst.  

Upon examination, the examiner noted that the Veteran could tie his shoelaces, fasten buttons, pick up a piece of paper and tear it without difficulty.  Further, the fingertips of the left hand were able to traverse the crease of the palm, with the thumb attempting to oppose the fingers.  The strength of the left hand was within normal limits, as were the X-rays finds of the left hand.  The VA examiner concluded that there was no pathology to render a diagnosis of a left hand disability.

The Board notes that the Veteran’s only examination for his hand disability manifested by pain was conducted while the Veteran was still in service.  Since that examination, VA has acknowledged that pain may be considered a disability for compensation purposes if the Veteran also demonstrates functional impairment of earning capacity due to such pain.  Saunders v. Wilkie, 886 F.3d 1356 (2018).  Here, in a March 2010 statement, the Veteran reported constant pain in the hand affecting the use of the limb and even his use of daily pain medication.  Further, during a skin examination of April 2016, the Veteran reported that his service-connected forearm lipomas give him sharp 5/10 pain and, from time to time, got bigger and bothered. During his monthly flare-up, the pain is rated as a 10/10 him.  

As there is no VA medical opinion is of record addressing the possible etiology of his left hand disability manifested by pain, a remand is, thus, warranted for a VA examination.

3. Entitlement to an initial compensable disability rating for ED is remanded.

The Veteran asserts that he is entitled to a compensable rating for his service-connected ED.  The Veteran was afforded a VA examination of March 2016.  He reported that since his last examination, he had been unable to sustain an erection for more than three minutes, if he could have one at all.  Further, he reported that when he does have an erection, “there is a bend in it (not straight).”  

Per the May 2014 remand, the examiner was asked to opine whether the Veteran’s adverse symptomatology equates to a deformity of the penis with loss of erectile power.  The examiner opined that the Veteran reported that he has a bend in his penile erection.  However, it was unable to be confirmed at this office visit.

As the Board finds this examination incomplete, a remand is warranted for a supplemental examination to determine if the Veteran’s reported bend of the penis equates to deformity of the penis with loss of erectile power.

4. Entitlement to a compensable disability rating for the first MCP joint of the right hand before May 23, 2016, and to a rating greater than 10 percent thereafter is remanded.

During the March 2016 Hand and Finger Conditions DBQ, the Veteran reported having functional loss or functional impairment of the right hand metacarpophalangeal joint but not limited to repeated use over time, with gripping things like a basketball, and trouble with writing during flare-ups.  Although the examiner noted that the Veteran was not being examined during a flare-up or repeated use, she surmised that it would be mere speculation to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability, for he had not witnessed any episodes of flare-ups. 

The Board finds this medical examination incomplete for adjudication purposes.  The examiner failed to estimate range of motion during a flare-up or repetitive use.  A remand is therefore warranted for an examination to determine the severity of the Veteran’s first MCP joint of the right hand.

The matters are REMANDED for the following action:

1. Issue a SOC addressing the timeliness of appeal issues.  

2. Provide the Veteran’s claim file to a qualified clinician to determine the etiology of his left hand disability manifested by pain.  The entire claims file and a copy of this remand must be made available to the examiner for review.  A physical examination of the Veteran or telehealth examination is only required if deemed necessary by the clinician.

Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following:

a. October 2008 examination wherein the Veteran reported squeezing and sharp hand pain, rated from 1-10, lasting 10-20 hours and occurring spontaneously, twice weekly.  

b. March 2010 statement the Veteran reported constant pain in hand affecting the use of limb and even his use of daily pain medication.  

The clinician must provide an opinion as to:

a. Whether it is at least as likely as not (probability of 50 percent or greater) that any diagnosed left hand disability manifested by pain had its onset in and/or are otherwise etiologically related to his period of active service; if arthritis is diagnosed, was it within one year of service. 

b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left hand disability manifested by pain is proximately due to or the result of his service-connected left hand ganglion cyst.

c. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left hand disability manifested by pain is aggravated beyond its natural progression by his service-connected left hand ganglion cyst.

The clinician must provide all findings and a complete rationale for his or her opinion(s) in the examination report.  If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion.

3. Provide the Veteran’s claim file to a qualified clinician to determine the current severity of his penile deformity. The entire claims file and a copy of this remand must be made available to the examiner for review.  A physical examination of the Veteran or telehealth examination is only required if deemed necessary by the clinician.

The clinician is specifically asked to address whether the Veteran’s adverse symptomatology, including his report of a bend in the penis during erection, equates to a deformity of the penis with loss of erectile power.  

All pertinent symptomatology and findings must be reported in detail.

4. Provide the Veteran’s claims file to a qualified clinician to determine the current severity of his first MCP joint of the right hand.  A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician.  The entire claims file and a copy of this remand must be made available to the clinician to review. 

All pertinent symptomatology and findings must be reported in detail.

5. Then, readjudicate the claims.  If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	N. Stevens, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.