Citation Nr: 21014741 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-61 573 DATE: March 15, 2021 ORDER Entitlement to a rating in excess of 10 percent for service-connected left knee chondromalacia of the patella femoral trochlea with degenerative joint disease (DJD) is denied. Entitlement to a rating in excess of 10 percent for service-connected right knee degenerative joint disease with torn meniscus and chondromalacia arthritis is denied. Entitlement to a rating in excess of 10 percent for service-connected left knee instability associated with left knee chondromalacia of the patella and femoral trochlea with degenerative joint disease is denied. Entitlement to a separate rating of 20 percent for semilunar cartilage condition of the right knee is granted. Entitlement to a rating in excess of 30 percent for service-connected left distal tibia and fibula fracture with traumatic arthritis of the ankle is denied. Entitlement to a rating in excess of 20 percent for service-connected degenerative joint disease of the lumbar spine and degenerative disc disease of the lumbar spine (lumbar spine degenerative arthritis) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected left knee chondromalacia of the patella femoral trochlea with degenerative joint disease (DJD) is manifested by pain and limitation of motion; ankylosis, tibia or fibula impairment, or genu recurvatum are not present. 2. The Veteran’s service-connected right knee degenerative joint disease with torn meniscus and chondromalacia arthritis is manifested by pain and limitation of motion; ankylosis, tibia or fibula impairment, instability, or genu recurvatum are not present. 3. The Veteran’s service-connected left knee instability associated with left knee chondromalacia of the patella and femoral trochlea with degenerative joint disease is manifested by slight instability. 4. The Veteran’s right knee disability is manifested by semilunar cartilage condition with frequent episodes of locking and pain. 5. The Veteran’s service-connected left distal tibia and fibula fracture with traumatic arthritis of the ankle is manifested by malunion with marked ankle disability. 6. The Veteran’s service-connected degenerative joint disease of the lumbar spine and degenerative disc disease of the lumbar spine (lumbar spine degenerative arthritis) resulted in pain and difficulty with bending, sitting, and standing, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; ankylosis and intervertebral disc syndrome with incapacitating episodes were not present. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for service-connected left knee chondromalacia of the patella femoral trochlea with degenerative joint disease (DJD) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71(a), Diagnostic Codes 5003-5260. 2. The criteria for entitlement to a rating in excess of 10 percent for service-connected right knee degenerative joint disease with torn meniscus and chondromalacia arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71(a), Diagnostic Codes 5003-5260. 3. The criteria for entitlement to a rating in excess of 10 percent for service-connected left knee instability associated with left knee chondromalacia of the patella and femoral trochlea with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71(a), Diagnostic Codes 5010-5257. 4. The criteria for a separate 20 percent rating for semilunar cartilage condition of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71(a), Diagnostic Code 5258. 5. The criteria for entitlement to a rating in excess of 30 percent for service-connected left distal tibia and fibula fracture with traumatic arthritis of the ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71(a), Diagnostic Code 5262. 6. The criteria for entitlement to a rating in excess of 20 percent for service-connected degenerative joint disease of the lumbar spine and degenerative disc disease of the lumbar spine (lumbar spine degenerative arthritis) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71(a), Diagnostic Codes 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Navy from March 1985 through August 1988. This case comes before the Board of Veteran’s Appeals (Board) on appeal from September 2014 and December 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran participated in a videoconference hearing before the undersigned Veterans Law Judge in March 2020 and waived his right to have counsel present. A transcript of the hearing has been associated with the record. In April 2020, the Board remanded the issues on appeal for further development and restored the rating reductions for left and right lower extremity sciatic nerve radiculopathy. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or maligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Importantly, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. This change only effects the Veteran’s claims for increase involving instability and malunion of the tibia and fibula, and the changes are discussed in greater detail below. 1. Entitlement to a rating in excess of 10 percent for service-connected left knee chondromalacia of the patella femoral trochlea with degenerative joint disease (DJD). 2. Entitlement for a rating in excess of 10 percent for service-connected right knee degenerative joint disease with torn meniscus and chondromalacia arthritis. 3. Entitlement to a rating in excess of 10 percent for service-connected left knee instability associated with left knee chondromalacia of the patella and femoral trochlea with degenerative joint disease. The Veteran is service connected for the following knee disabilities: (1) right knee degenerative joint disease with torn meniscus and chondromalacia arthritis rated at 10 percent from September 28, 2006 under 38 C.F.R. § 4.71(a), Diagnostic Codes 5003-5260; (2) left knee chondromalacia of the patella and femoral trochlea with degenerative joint disease rated at 10 percent from September 28, 2006 under 38 C.F.R. § 4.71(a), Diagnostic Codes 5003-5260; and (3) left knee instability associated with left knee chondromalacia of the patella and femoral trochlea with degenerative joint disease rated at 10 percent from September 16, 2020 under 38 C.F.R. § 4.71(a), Diagnostic Codes 5010-5257. Increased ratings are not warranted for the Veteran’s service-connected knee disabilities. Diagnostic Code 5256 pertains to ankylosis of the knee. 38 C.F.R. § 4.71(a). The previous version of Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71(a). The new version of DC 5257 retains ratings for recurrent subluxation or instability, providing a 30 percent rating for such instability with unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned for either a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or for an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is assigned for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. The revised DC 5257 also created a new rating for patellar instability; importantly, each of those ratings requires a diagnosed condition of patellar instability for application. Diagnostic Code 5258 provides for assignment of a 20 percent rating with semilunar cartilage dislocated with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71(a). Diagnostic Code 5259 provides for assignment of a 10 percent rating for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71(a). Diagnostic Code 5260 provides for a 10 percent rating when flexion of the leg is limited to 45 degrees; a 20 percent rating when flexion is limited to 30 degrees; and a 30 percent rating when flexion is limited to 15 degrees. 38 C.F.R. § 4.71(a). Diagnostic Code 5261 provides for a 10 percent rating when extension is limited to 10 degrees; a 20 percent rating with extension limited to 15 degrees; a 30 percent rating with extension limited to 20 degrees; a 40 percent rating with extension limited to 30 degrees; and a 50 percent rating is assigned with extension limited to 45 degrees. 38 C.F.R. § 4.71(a). Diagnostic Code 5262 provides ratings for impairment of the tibia and fibula. A 40 percent rating is assigned for nonunion with loose motion requiring a knee brace; a 30 percent rating is assigned for malunion with marked knee or ankle disability; a 20 percent rating is assigned for malunion with moderate ankle or knee disability; and a 10 percent rating is assigned for malunion with slight knee or ankle disability. 38 C.F.R. § 4.71(a). Diagnostic Code 5263 provides for a 10 percent rating for genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71(a). Diagnostic Code 5010 provides that arthritis, due to trauma, substantiated by X-ray findings should be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71(a). Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, it is rated as the following: 20 percent is assigned With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations; and a 10 percent is assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, will not be combined with ratings based on limitation of motion. Note (2): The 20 percent and 10 percent ratings based on X-ray findings, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. In September 2014, the Veteran was afforded a VA examination for his bilateral knee conditions. The Veteran was diagnosed with degenerative joint disease and chondromalacia of the bilateral knees and torn meniscus in the right knee. Initial range of motion testing of the right knee revealed flexion from 0 to 110 degrees with objective evidence of painful motion at 100 degrees and no limitation of extension. Initial range of motion testing of the left knee revealed flexion from 0 to 110 degrees with objective evidence of painful motion at 100 degrees and no limitation of extension. Range of motion in the right knee after repetitive-use testing revealed flexion from 0 to 110 degrees and no limitation of extension. Range of motion in the left knee after repetitive-use testing revealed flexion from 0 to 110 degrees and no limitation of extension. Additional limitations of the knees included less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting. The Veteran had tenderness or pain to palpation for joint line or soft tissue of both knees. The Veteran’s muscle strength was normal in his knees. The Veteran’s joint stability was normal. There was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran never had “shin splints” or medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. However, the Veteran did have surgery on his right knee. He had semilunar cartilage condition. He had frequent episodes of joint pain in the right knee. He had surgery on his right knee in December 2006, September 2007, and May 2013. The Veteran had residual pain from his surgery. Although the Veteran had a scar from his surgery, it was not painful and/or unstable, or a total area of greater than 39 square centimeters or 6 square inches. The Veteran occasionally used a wheelchair for his degenerative joint disease, bilateral knees, and lumbar spine. He constantly used a cane and braces for his bilateral knees. The VA examiner noted that the Veteran’s bilateral knee condition impacted his ability to work. The Veteran’s bilateral knee condition would impact physical labor by limiting the Veteran’s ability to carry/lift, bend/twist, climb ladders/stairs, and stand for prolonged periods of time. Also, the Veteran’s knees would impact non-physical labor by limiting the Veteran’s ability to sit for prolonged periods of time without getting up to move around periodically. The VA examiner reported that the reliability of objective exam results might be questionable given the observed inconsistent effort on the examination. In September 2020, the Veteran was afforded a VA examination for his bilateral knee conditions. The Veteran reported daily aching and sharp bilateral knee pain. The pain was worse with walking up and down stairs, squatting, and kneeling. Nothing made the pain better. The Veteran felt that both knees were unstable and had limited range of motion in both knees. He wore a brace on his right knee 90 percent of the time. He received gel injections in both knees every 6 to 9 months. He took Tylenol and ibuprofen daily for his knee pain. He reported smoking marijuana at night and occasionally taking oxycodone for pain. The Veteran did not report flare-ups. The Veteran reported difficulty going up and down stairs due to bilateral knee pain. He could not bend, stoop, or squat due to bilateral knee pain. Initial range of motion testing of the right knee revealed flexion from 0 to 115 degrees and extension from 115 to 0 degrees. Pain was noted on examination and caused functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue in the right knee. There was no evidence of pain with weight bearing. However, the Veteran had objective evidence of crepitus in the right knee. Initial range of motion testing of the left knee revealed flexion from 0 to 110 degrees and extension from 110 to 0 degrees. Pain was noted on examination and caused functional loss. The Veteran had pain with palpation over the lateral joint line of moderate severity in his left knee. There was no evidence of pain with weight bearing, but the Veteran had objective evidence of crepitus in his left knee. In the right knee, the Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions in the right knee. The Veteran was able to perform repetitive-use testing with at least three repetitions in the left knee, but there was no additional loss of function or range of motion. The VA examiner noted that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time in the Veteran’s right knee. The VA examiner described it in terms of range of motion: flexion was from 0 to 110 degrees and extension was from 110 to 0 degrees in the right knee. The VA examiner noted that that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time in the Veteran’s left knee. The VA examiner described it in terms of range of motion: flexion was from 0 to 100 degrees and extension was from 100 to 0 degrees. The examination was not being conducted during a flare-up and pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups for the right and left knees. Muscle strength was normal in both knees. The Veteran did not have muscle atrophy or ankylosis. The Veteran did not have a history of subluxation or recurrent effusion in his right or left knee. He also did not have a history of joint instability in his right knee. However, the VA examiner noted that the Veteran had lateral instability in his left knee at 1+ or (0-5 millimeters). The examiner reported that the Veteran did not have recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional syndrome, or any other tibial or fibular impairment. The Veteran had meniscal tear in his right and left knees. He had 5 surgeries on his right knee to repair damage to his meniscus. He had one surgery to repair damage to his left meniscus. The Veteran had meniscectomy, chondroplasty on January 2005, December 2006, September 2007, April 2009, and May 2013 on his right knee. The Veteran had a meniscectomy on his left knee in 2004. He had scars on his bilateral knees, but the scars were not painful or unstable and did not have a total area equal to or greater than 39 square centimeters (6 square inches). The Veteran used a brace constantly for his right knee arthritis and a cane regularly for his right and left knee arthritis. The VA examiner concluded that the Veteran’s knee conditions impacted his ability to perform work. The Veteran was an electrician. Due to his knee condition, the Veteran lost 2-4 weeks in work time in the last 12 months. He had difficulty walking up and down stairs, squatting, kneeling, and bending at the knee due to bilateral degenerative joint disease of the knees. When taken together as a whole and with consideration of the other medical evidence of record, the Board finds the September 2014 and September 2020 VA examinations to be competent, credible, and highly probative, as they are supported by in-person examinations, medical expertise, adequate findings, sufficient rationales, and proper consideration of the Veteran’s lay statements. A rating in excess of 10 percent is not warranted for the Veteran’s service-connected right knee degenerative joint disease with torn meniscus and chondromalacia arthritis, a rating in excess of 10 percent is not warranted for the Veteran’s service-connected left knee chondromalacia of the patella nad femoral trochlea with degenerative joint disease, and a rating in excess of 10 percent is not warranted for the Veteran’s service-connected left knee instability. The Veteran’s knee disabilities are characterized by daily aching and sharp bilateral knee pain. The pain became worse with walking up and down stairs, squatting, and kneeling. He wore a brace on his right knee and used a cane for both of his knees. He received gel injections in both knees every 6 to 9 months. The Veteran took Tylenol and ibuprofen daily for his knee pain. He reported smoking marijuana at night and occasionally taking oxycodone for pain. The Veteran’s VA examinations and treatment records showed that the Veteran’s extension and flexion were not limited to such a degree as to warrant a higher evaluation under Diagnostic Code 5260 and 5261, to include repetitive-use and repetitive use over a period of time. Under Diagnostic Code 5257, a higher rating is not warranted either as the Veteran’s left knee disability does not have greater than slight instability. The Veteran’s right knee has not demonstrated instability throughout the appeal period. The assigned 10 percent rating under the old Code is appropriate, as it takes into consideration the Veteran’s reports of instability and feeling unstable with his knee. Absent objective signs or symptoms noted on examination, however, a higher rating is not warranted under the old DC 5257. A higher rating is also not warranted under the revised DC 5257. For a higher rating to be warranted, evidence would have to show persistent instability and prescriptions for either an assistive device or bracing. As noted, objective testing has not revealed instability (despite the Veteran’s complaints), so it cannot be said that there is persistent instability. Further, though the Veteran reports using a cane occasionally as well as wearing a brace, there is no evidence that these were prescribed specifically for instability, precluding higher ratings under the revised version of DC 5257. A higher rating is not warranted under Diagnostic Code 5003 because there is no X-ray evidence of degenerative arthritis involving 2 or more major or minor joints with occasional incapacitating exacerbations. The Veteran does not demonstrate the symptoms or diagnoses required for additional ratings under other Diagnostic Codes. The evidence shows no ankylosis, no tibial or fibular impairment, and no genu recurvatum. See 38 C.F.R. § 4.71(a), Diagnostic Codes 5256, 5262, 5263. However, the Board finds that a separate rating is warranted under Diagnostic Code 5258 for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. On the Veteran’s September 2014 VA examination, the VA examiner noted that the Veteran had a semilunar cartilage condition of the right knee with frequent episodes of joint pain. Therefore, a separate rating of 20 percent is warranted for the Veteran’s semilunar cartilage condition under Diagnostic Code 5258. The Board has also considered the Veteran’s lay statements regarding the Veteran’s symptomatology. The Board notes that the Veteran is competent to report observations regarding the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, the Veteran’s statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Accordingly, increased ratings are not assignable for the Veteran’s service-connected knee disabilities. 4. Entitlement to a rating in excess of 30 percent for service-connected left distal tibia and fibula fracture with traumatic arthritis of the ankle. The Veteran’s service-connected left distal tibia and fibula fracture with traumatic arthritis of the ankle is rated at 30 percent under 38 C.F.R. § 4.71(a) 5262. A rating in excess of 30 percent is not warranted. Diagnostic Code 5262 provides for impairment of the tibia and fibula. A 40 percent is warranted for tibia and fibula impairment, nonunion of, with loose motion, requiring brace; a 30 is warranted for malunion with marked knee or ankle disability; a 20 percent is warranted for malunion with moderate knee or ankle disability; and a 10 percent is warranted for malunion with slight knee or ankle disability. Under the revised DC 5262, the former “marked,” “moderate,” and “slight” language has been excised; instead, malunion of the tibia and fibula is evaluated under the applicable Diagnostic Codes for knee and ankle disabilities, whichever results in the higher evaluation. Under Diagnostic Code 5270, ankylosis of the ankle in plantar flexion, less than 30 degrees warrants a 20 percent rating. If ankylosed in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees, a 30 percent rating is warranted. If ankylosed in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity, a 40 percent rating is warranted. Ankylosis is immobility and consolidation of a joint due to disease, injury or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 46 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Diagnostic Code 5271 provides that limitation of motion of an ankle warrants a 10 percent rating when moderate and 20 percent when marked. 38 C.F.R. § 4.71(a). Normal ankle range of motion is 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Under the revised DC 5271, marked and moderate limitation of motion have now been denied. Marked limitation of motion requires less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, and moderate limitation of motion requires less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. Diagnostic Code 5272 provides the rating criteria for ankylosis of the subastragalar or tarsal joint. A 10 percent disability rating is warranted for such ankylosis in good weight-bearing position and a 20 percent rating is warranted for such ankylosis in a poor weight-bearing position. 38 C.F.R. § 4.71(a) (2017). Diagnostic Code 5273 provides the rating criteria for malunion of the os calcis or astragalus. A 10 percent disability rating is warranted for a moderate deformity, and a 20 percent disability rating is warranted for a marked deformity. 38 C.F.R. § 4.71(a). Diagnostic Code 5274 provides that a 20 percent disability rating is warranted for astragalectomy. 38 C.F.R. § 4.71(a). In September 2014, the Veteran was afforded a VA examination for his left ankle. The Veteran was diagnosed with traumatic arthritis and distal tibia/fibula fracture of the left ankle. Initial range of motion testing of the left ankle revealed plantar flexion to 30 degrees with objective evidence of painful motion at 30 degrees and dorsiflexion extension to 10 degrees with objective evidence of painful motion at 10 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions. The Veteran’s left ankle disability caused less movement than normal, weakened movement, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The Veteran had reduced muscle strength in the left ankle in dorsiflexion. The Veteran did not have joint instability or ankylosis. The Veteran had a scar on his left ankle due to prior surgery, but the scar was not painful and/or unstable and did not have a total area greater than 39 square centimeters. The Veteran occasionally used a wheelchair for his degenerative joint disease of the left ankle, bilateral knees, and lumbar spine. He constantly used a cane and braces for his knees. The VA examiner concluded that the Veteran’s ankle condition impacted his ability to work. For example, the condition might impact physical labor by limiting the ability to knee, lift/carry, climb ladders, stairs, and stand for prolonged periods of time. However, the condition would not have a significant impact on performing non-physical labor. In September 2020, the Veteran was afforded a VA examination for his left ankle. The Veteran was diagnosed with left distal tibia and fibula fracture with traumatic arthritis of the ankle. The Veteran reported daily aching pain in his left ankle. He endorsed occasional numbness and altered sensation in his left ankle. The Veteran reported very limited range of motion and felt that his ankle was unstable. Currently, the Veteran took Tylenol and ibuprofen daily for ankle pain. The Veteran smoked marijuana at night and occasionally took oxycodone for pain relief. He wore a 3/8 inch orthotic in his left boot to correct a leg length discrepancy that developed post-surgery. He wore boots daily for ankle support. The Veteran reported having functional loss or impairment of his left ankle. He had difficulty going up and down stairs due to ankle pain. The Veteran had trouble on uneven surfaces due to left ankle weakness and instability. Initial range of motion testing of the left ankle revealed dorsiflexion to 10 degrees and plantar flexion to 10 degrees. Pain was noted on examination, and it caused functional loss. He had pain with palation in the medial malleolus of moderate severity. There was no evidence of pain with weight bearing or objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions in his left ankle, but there was no additional loss of function or range of motion. The Veteran was not immediately examined after repetitive-use over time. Pain and weakness significantly limited functional ability with repeated use over a period of time. The Veteran was able to describe in terms of range of motion: dorsiflexion was to 5 degrees and plantar flexion was to 5 degrees. The Veteran denied flare-ups. The Veteran’s muscle strength was reduced to 4/5. He did not have muscle atrophy or ankylosis in his left ankle. He did not have left ankle instability or dislocation. Further, he did not have “shin splints,” stress fractures, achilles tendonitis, achilles tendon rupture, mal-union of calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy). The Veteran had a scar, but it was not painful or unstable, and it did not have a total area equal to or greater than 39 square centimeters. The Veteran regularly used a cane and orthotic for his left ankle arthritis. The VA examiner concluded that the Veteran’s left ankle disability impacted his ability to perform occupational tasks. The Veteran was an electrician. He lost 0 to 1 week of time at work in the last 12 months. Due to his traumatic left ankle, the Veteran had difficulty walking and going up and down stairs. He also had difficulty with uneven surfaces and ladders. When taken together as a whole and with consideration of the other medical evidence of record, the Board finds the September 2014 and September 2020 VA examinations to be competent, credible, and highly probative, as they are supported by in-person examinations, medical expertise, adequate findings, sufficient rationales, and proper consideration of the Veteran’s lay statements. Based on the foregoing, a rating in excess of 30 percent is not warranted for the Veteran’s service-connected left ankle disability. The Veteran’s left ankle disability is characterized by daily aching pain and occasional numbness and altered sensation. The Veteran had limited range of motion. The Veteran regularly used a can and an orthotic for his left ankle arthritis. The Veteran had difficulty walking, going up and down stairs, and climbing ladders. Under Diagnostic Code 5262, a rating of 40 percent is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. The Veteran’s VA examinations and VA treatment records did not demonstrate that the Veteran had nonunion of the tibia and fibula with loose motion requiring a brace. Diagnostic Codes 5272, 5273, and 5274 are inapplicable because the VA examinations show that the Veteran does not have malunion of the os calcis or astragalus, astragalectomy, or ankylosis of the subastragalar or tarsal joint. Additionally, the Veteran cannot achieve a higher rating under Diagnostic Code 5271. Additionally, the Veteran cannot achieve a compensable rating under Diagnostic Code 5271 in addition to his rating under Diagnostic Code 5262, as both diagnostic codes contemplate for limitation of motion due to pain, and assignment of separate ratings would violate VA’s prohibition against pyramiding. 38 C.F.R. § 4.16. Application of the new rating criteria would not result in the Veteran’s receiving a disability rating greater than 30 percent, as breaking his disability up into its component ankle and knee ratings would result in lower ratings overall. Thus, it is more advantageous to the Veteran to be rated under the former Code. The Board notes that the Veteran is competent to report observations regarding the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, the Veteran’s statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Accordingly, an increased rating is not assignable for the Veteran’s service-connected left ankle disability. 5. Entitlement to a rating in excess of 20 percent for service-connected degenerative joint disease of the lumbar spine and degenerative disc disease of the lumbar spine (lumbar spine degenerative arthritis). The Veteran’s service-connected back disability is rated at 20 percent under 38 C.F.R. § 4.71(a), Diagnostic Codes 5242-5237. A rating in excess of 20 percent is not warranted. The General Rating Formula for Disease and Injuries of the Spine is laid out in 38 C.F.R. § 4.71(a), Diagnostic Codes 5235 to 5243. The Spine is evaluated under these rating criteria with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of the height. 38 C.F.R. § 4.71(a). Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under eth appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. With x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, rate as 20 percent. With x-ray evidence of involvement of 2 or more major joints or 2 or more minor joints, rate as 10 percent. See 38 C.F.R. § 4.71(a), Diagnostic Code 5003. In September 2014, the Veteran was afforded a VA examination for his back disability. The Veteran was diagnosed with degenerative joint disease of the lumbar spine and degenerative disc disease of the lumbar spine. Initial range of motion testing revealed forward flexion to 60 degrees with evidence of painful motion at 60 degrees, extension to 15 degrees with evidence of painful motion at 15 degrees, right lateral flexion to 20 degrees with no evidence of painful motion, left lateral flexion at 25 degrees with no objective evidence of painful motion, right lateral rotation to 25 degrees with objective evidence of painful motion at 25 degrees, and left lateral rotation to 25 degrees with objective evidence of painful motion at 25 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions. Range of motion for repetitive-use testing revealed forward flexion to 60 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. The contributing factors to the Veteran’s functional loss or functional impairment after repetitive-use included less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing and/or weight-bearing. The Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine over lumbar spinous processes. The Veteran did not have guarding or muscle spasms. He did not have muscle atrophy or radiculopathy. The VA examiner noted that the Veteran did not have a diagnosis of ankylosis or intervertebral disc syndrome. The Veteran occasionally used a wheelchair for his left ankle condition, bilateral knees, and lumbar spine. He constantly used a cane and brace for his bilateral knees. The VA examiner noted that the Veteran’s back condition impacted his ability to work. The Veteran’s back condition would impact physical labor by limiting the Veteran’s ability to carry/lift, bend/twist, climb ladders/stairs, and stand for prolonged periods of time. Also, the Veteran’s back condition would impact non-physical labor by limiting the Veteran’s ability to sit for prolonged periods of time without getting up to move around periodically. In September 2020, the Veteran was afforded a VA examination for his service-connected degenerative joint disease of the lumbar spine and degenerative disc disease of the lumbar spine. The VA examiner noted that an August MRI revealed that the Veteran had mild to moderate degenerative changes in the lumbar spine. The Veteran had foramen stenosis at L5-S1. The Veteran’s current symptoms included daily debilitating lumbar pain. The Veteran also described the pain as sharp and rated it at an 8/10. The Veteran endorsed intermittent radicular pain and paresthesia in his left leg. The Veteran had difficulty sleeping through the night due to his back pain. He also endorsed limited range of motion for his lumbar spine. The Veteran wore a lumbar brace and wore a compression shirt daily for lumbar support. He took Tylenol and ibuprofen daily for back pain. Further, the Veteran smoked marijuana at night and occasionally took oxycodone for his back pain. The Veteran used a cane and lumbar brace to help with back pain. He could not bend, twist, or stoop due to back pain. The Veteran could not carry more than 10 pounds safely due to back pain. He also utilized a stool during his work as an electrician due to inability to bend forward. The Veteran could not safely climb a ladder due to back pain. Initial range of motion testing revealed forward flexion to 50 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. Pain was exhibited on all ranges of motion; it caused functional loss. The Veteran had pain with palpation directly over the lumbar spine of moderate severity. After repetitive-use testing, there was no additional functional loss or range of motion after three repetitions. The Veteran was not being immediately examined after repetitive-use over time. Pain significantly limited functional ability with repeated use over time. It was described in terms of range of motion: forward flexion was to 40 degrees, extension was to 10 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 5 degrees, right lateral rotation was to 10 degrees, and left lateral rotation was to 5 degrees. The VA examination was not conducted during a flare-up and pain, weakness, fatigability, or incoordination did not significantly limit functional ability. The Veteran did not have guarding or muscle spasms of the thoracolumbar spine. Neither muscle atrophy nor ankylosis were present. The VA examiner noted that the Veteran had radiculopathy of the left lower extremity that affected the sciatic nerve to a mild degree. The Veteran did not have any other neurologic abnormalities or findings related to his back disability. He was not diagnosed with intervertebral disc syndrome. The Veteran regularly used a brace and cane assistive devices for arthritis and radiculopathy of the lumbar spine. In the last 12 months, the Veteran lost 2-4 weeks of time at work due to his back disability. Due to degenerative arthritis and radiculopathy of the lumbar spine, the Veteran could not bend, stoop, or squat. He could not carry more than 10 pounds or use a ladder safely. When taken together as a whole and with consideration of the other medical evidence of record, the Board finds the September 2014 and September 2020 VA examinations to be competent, credible, and highly probative, as they are supported by in-person examinations, medical expertise, adequate findings, sufficient rationales, and proper consideration of the Veteran’s lay statements. A rating in excess of 20 percent is not warranted for the Veteran’s service-connected degenerative joint disease of the lumbar spine and degenerative disc disease of the lumbar spine. The Veteran’s back disability caused him unbearable and debilitating lumbar pain. He could not bend, twist, or stoop due to back pain. The Veteran could not carry more than 10 pounds safely due to back pain. The Veteran’s back pain limited his ability to sit or stand for prolonged periods of time. The Veteran also took Tylenol, ibuprofen, marijuana, and oxycodone to manage the pain in his back. Under the General Rating Formula for Disease and Injuries of the Spine, for a rating in excess of 20 percent to be assigned, the Veteran’s back disability would need to exhibit unfavorable ankylosis of the entire spine, unfavorable ankylosis of the entire thoracolumbar spine, forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. On the Veteran’s September 2014 VA examination, range of motion testing revealed. forward flexion to 60 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. On the Veteran’s September 2020 VA examination, initial range of motion testing revealed forward flexion to 50 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. Range of motion during repeated use over time was predicted to be forward flexion was to 40 degrees, extension was to 10 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 5 degrees, right lateral rotation was to 10 degrees, and left lateral rotation was to 5 degrees. Based on a review of all the evidence of record, the forward flexion of the Veteran’s thoracolumbar spine was not 30 degrees or less. Furthermore, the Veteran did not have ankylosis or intervertebral disc syndrome with incapacitating episodes. Therefore, a rating in excess of 20 percent is not warranted for the Veteran’s service-connected back disability. The Board has also considered the Veteran’s lay statements regarding the Veteran’s symptomatology. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, the Veteran’s statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. In May 2014, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. On his TDIU application, the Veteran reported that he stopped working in 2010 due to his service-connected disabilities. However, since then, the Veteran has recently started his new job as an electrician. A new TDIU application is not of record documenting when the Veteran started his new employment. Therefore, on remand, it is necessary for the Veteran to fill out and complete a VA Form 21-8940 documenting his current employment. Also, the RO should obtain the Veteran’s records from the Social Security Administration (SSA) showing the Veteran’s wage and earnings for the years 2010 to present. The matters are REMANDED for the following action: 1. Request the Veteran to complete and return a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. 2. Request the Veteran’s wage and earnings statements records for years 2010 to present from the SSA. 3. If the Veteran returns his formal application for a TDIU, then perform any necessary development, to include contacting former and current employers to fill out and return a VA Form 21-4192, Request for Employment Information. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.