Citation Nr: 21016077 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-03 302 DATE: March 19, 2021 ORDER Prior to October 7, 2020, an increased disability rating in excess of 10 percent for right knee enthesopathy and osteoarthritis with limited flexion is denied. As of October 7, 2020, an increased disability rating in excess of 10 percent for right knee enthesopathy and osteoarthritis with limited extension is denied. As of May 20, 2014, an initial disability rating of 10 percent for right ankle sprain is granted. Prior to November 25, 2019, an increased disability rating in excess of 10 percent for right ankle sprain is denied. As of November 25, 2019, an increased disability rating of 20 percent for right ankle sprain is granted. FINDINGS OF FACT 1. The Veteran’s service-connected right knee enthesopathy and osteoarthritis did not manifest as limited flexion of 30 degrees or less, nor as limited extension of 15 degrees or more throughout the appeal period. 2. The Veteran’s service-connected right ankle sprain symptomatology included pain and associated functional loss as of May 20, 2014, the date he filed his claim for service connection. 3. Prior to November 25, 2019, the Veteran’s service-connected right ankle sprain did not more closely manifest as “marked” limitation of motion. 4. As of November 25, 2019, the Veteran’s service-connected right ankle sprain did more closely manifest as “marked” limitation of motion. CONCLUSIONS OF LAW 1. Prior to October 7, 2020, the criteria for an increased disability rating in excess of 10 percent for right knee enthesopathy and osteoarthritis with limited flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261. 2. As of October 7, 2020, the criteria for an increased disability rating in excess of 10 percent for right knee enthesopathy and osteoarthritis with limited extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261. 3. As of May 20, 2014, the criteria for an initial disability rating of 10 percent, but no more, for right ankle sprain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 4. Prior to November 25, 2019, the criteria for an increased disability rating of 20 percent for right ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 5. As of November 25, 2019, the criteria for an increased disability rating of 20 percent for right ankle sprain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1953 until his honorable discharge in September 1956. This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from a July 2015 rating decision by the Los Angeles, California, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which (1) continued a 10 percent disability rating for right knee enthesopathy and osteoarthritis, and (2) granted an increased disability rating of 10 percent for right ankle sprain as of April 21, 2015. The Veteran filed a timely notice of disagreement and subsequent appeal. In June 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. The Board remanded the claims in April 2018, September 2019, and July 2020 to obtained adequate VA examinations. Following the July 2020 remand, the RO recharacterized the Veteran’s disability for his service-connected right knee enthesopathy and osteoarthritis based on his limitation of flexion for the period prior to October 7, 2020, and based on his limitation of extension for the period as of October 7, 2020. Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Separate ratings can be assigned for separate periods of time based on the facts found—a practice known as “staged” ratings. Id. at 126. A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts “for the possible dynamic nature of a disability while the claim works its way through the adjudication process.” O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Codes (DCs) are assigned to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. 1. Right knee enthesopathy and osteoarthritis The Veteran’s right knee enthesopathy and osteoarthritis has been continuously rated under 38 C.F.R. § 4.71a, DC 5010, “Posttraumatic arthritis.” On review of the Veteran’s medical records, it is clear he was diagnosed with degenerative arthritis, which is rated under DC 5003. Thus, the Board finds the appropriate DC under which to rate the Veteran’s right knee enthesopathy and osteoarthritis is DC 5003. Prior to February 7, 2021,—the date DC 5010 was amended, see Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,460 (Nov. 30, 2020), as amended 85 Fed. Reg. 85,523 (Dec. 29, 2020), as amended 86 Fed. Reg. 8,142 (Feb. 4, 2021)—DC 5010 instructed adjudicators to rate posttraumatic arthritis as degenerative arthritis under DC 5003, which the RO did. Thus, the Board finds no prejudice resulted to the Veteran since his award of service connection on March 8, 2013, was continuously rated using DC 5003 via DC 5010. Throughout the appeal period, 38 C.F.R. § 4.71a, DC 5003, has provided: Rating (%) Arthritis, degenerative (hypertrophic or osteoarthritis): 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, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 [percent] and 10 [percent] ratings based on X-ray findings, above, 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, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. For the purpose of rating degenerative arthritis, “major joints” include the shoulder, elbow, wrist, hip, knee, and ankle. 38 C.F.R. § 4.45(f). “Minor joints” include “multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae.” Id. In reference to the limitation of motion of the knee, VA regulations provide two specific DCs, 5260 (limitation of flexion) and 5261 (limitation of extension). This does not limit the Board from considering separate ratings for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259 (1994). The assignment of separate ratings requires separately compensable symptomatology. See VAOPGCPREC 9-04. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. Thus, the Board may consider DCs 5256 through 5263 (all DCs associated with the knee) and any other relevant DC. The Board observes that VA amended numerous DCs, including DC 5003, as of February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,460 (Nov. 30, 2020), as amended 85 Fed. Reg. 85,523 (Dec. 29, 2020), as amended 86 Fed. Reg. 8,142 (Feb. 4, 2021). Only the title of DC 5003 was amended. The substance of DC 5003, which is cited above, remained unchanged. Diagnostic Code 5260, which remained unchanged throughout the appeal period, provides: Rating (%) Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 Diagnostic Code 5261, which remained unchanged throughout the appeal period, provides: Rating (%) Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 In addition, when VA evaluates musculoskeletal disabilities under the Rating Schedule, it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria. Under section 4.40, VA must consider whether there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of “the normal working movements of the body . . . in order to constitute functional loss”). Section 4.45 expands upon the concept of functional loss, noting six factors that VA must consider when evaluating a disability, namely: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.45. Noticeably, the aspects of functional loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles, nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of “actually painful, unstable, or malaligned joints.” 38 C.F.R. § 4.59; Petitti, 27 Vet. App. at 427. Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Prior to October 7, 2020, an increased disability rating in excess of 10 percent is denied The Veteran filed his claim for an increased rating for his right knee disability on April 21, 2015. The disability is currently rated as 10 percent disabling based on DC 5003-5260 prior to October 7, 2020. A hyphenated DC is used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. The additional code is shown after the hyphen. The hyphenated DC in this case indicates that degenerative arthritis, DC 5003, is the service-connected disability, and the residual condition to which the arthritis is rated by analogy is limitation of flexion of the right knee, DC 5260. 38 C.F.R. § 4.71a. Therefore, the Board will consider the evidence for a year prior to April 21, 2015, claim to determine if a rating in excess of 10 percent is warranted through October 7, 2020. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Veteran’s VA medical records indicate that he continuously reported constant pain in his right knee as of April 2014, which was accompanied by functional loss, to include difficulty walking. See May 2014 VA Physical Medicine Rehab Note; October 2014 VA Clinic Note. There was no associated muscle atrophy or swelling of the right knee associated with his pain. See May 2014 VA Physical Medicine Rehab Note. In May 2015, the Veteran was afforded a VA-contracted medical examination. The examiner found his initial right knee flexion was 0 to 110 degrees (normal being 0 to 140 degrees), and his right knee extension was 110 to 0 degrees (normal being 140 to 0 degrees). Pain was documented on flexion and with weight bearing. There was localized tenderness on the underline of the kneecap and evidence of crepitus. The Veteran reported flare-ups resulting in constant, daily, and moderate pain. As to the Veteran’s right knee disability following repeated use over time and during flare-ups, the examiner determined the Veteran experienced pain, fatigue, and weakness that likely resulted in additional functional loss and range-of-motion loss, estimated to be 0 to 100 degrees for flexion and 100 to 0 degrees for extension. The Veteran’s right knee muscle strength was normal (5 out of 5), there was no observable ankylosis, muscle atrophy, subluxation, or instability. A May 21, 2015, VA physical medicine rehab outpatient note documented that the Veteran reported his bilateral knee pain as 6 to 7 on a 10-point scale. A September 2015 VA pain clinic consultation/evaluation note did not document atrophy or erythema of either knee. The knees were sensitive to touch. He still experienced constant, sharp pain in his knees, which increased with walking. During a December 2015 VA rheumatology consult, the Veteran continued to experience daily, constant knee pain, described as 7 out 10. He experienced increased pain with walking, stretching, and exercising. The physician reported no gross abnormalities on inspection. The Veteran did experience right knee pain on internal and external rotation of the hip joint. Moderate sensitivity was noted on touch over the medial and lateral right knee. Prepatellar edema was noted but not effusion. The Veteran had right knee flexion of approximately 70 degrees. The Veteran was afforded a VA-contracted examination in April 2016 and in February 2018. The purpose of those examinations was to assess the Veteran’s left knee disability. Generally, a left knee examination also requires diagnostic testing on the right knee. Correia v. McDonald, 28 Vet. App. 158, 170, n. 8 (citing 38 C.F.R. § 4.59). On review of those examinations, the Board finds the examiners did not make proper inquiries into the Veteran’s right knee disability regarding pain, functional loss, weakness, or properly document symptomatology following repetitive use over time or during flare-ups. In addition, each examiner documented the Veteran’s initial right knee flexion was 0 to 140 degrees (normal) and his extension was 140 to 0 degrees (normal). These measurements appear wholly inconsistent with the other evidence of record that has routinely documented the Veteran had abnormal initial right knee flexion prior to and following these examinations. The Board finds these examinations did not provide an adequate picture of the Veteran’s right knee disability at the respective times. Thus, the Board finds these examinations are not probative with respect to the Veteran’s right knee disability. The Veteran had x-rays taken of his knees in July 2019. A physician determined that the alignment of the Veteran’s right knee was normal. There was no effusion. Nor was a fracture or dislocation observed. In a September 2019 VA follow-up visit with an orthopedic surgeon’s assistant, the Veteran’s right knee underwent a McMurray’s test, Lachman’s test, Pivot Shift test, and Anterior/Posterior Drawer test; each yielded a negative result. He did have a positive result during the Patellar Grind test. His right knee flexion was documented as 105 degrees, and his right knee extension was documented as -5 degrees. In November 2019, the Veteran was afforded a VA-contracted examination as to his right knee. In a July 2020 remand order, the Board found the examiner did not fully describe the severity, frequency, duration, precipitating and alleviating factors, and the extent of functional impairment during flare ups. Nonetheless, the Board finds the examination still has probative value in all other respects. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight.”). The November 2019 examiner found the Veteran’s initial right knee flexion was 5 to 90 degrees (normal being 0 to 140 degrees), and his right knee extension was 90 to 5 degrees (normal being 140 to 0 degrees). The examiner documented that the Veteran’s inability to bend his right knee contributed to functional loss, such as when squatting or climbing stairs. Pain was documented on flexion, extension, and with weight bearing. There was localized tenderness of the medial and lateral joint lines but no evidence of crepitus. Repetitive-use testing was unable to be performed because the Veteran demonstrated difficulty with joint movement. As to repeated use over time, the examiner determined the Veteran experienced pain and weakness that likely resulted in additional functional loss but found the reported symptoms were consistent with the Veteran’s documented initial ranges of motion. The Veteran reported his right knee locked intermittently, and he experienced difficulty walking, squatting, and climbing stairs. The Veteran’s right knee muscle strength was 4 out of 5 as to flexion and extension. There was no observable ankylosis, muscle atrophy, subluxation, or instability. Absent evidence to the contrary, the Board finds the above-mentioned medical professionals were competent to exam and diagnose the Veteran and to provide medical judgments related to the Veteran’s right knee disability, unless otherwise indicated. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competency of medical professionals is presumed absent evidence to the contrary). The Board finds the medical professionals’ respective examinations, medical findings, and medical opinions are credible and probative, unless otherwise indicated. The medical professionals conducted thorough examinations, relied on accurate facts, considered the Veteran’s relevant medical records, medical history, and lay statements, and provided well-reasoned medical judgments, unless otherwise indicated. Furthermore, the Board finds the Veteran was at all times competent to report his right knee sensations, to include, but not limited to, pain, locking, weakness, and fatigue. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms). The Board also finds he was competent at all times to report his experiences, such as difficulty walking, squatting, and climbing stairs. The Board finds the Veteran’s statements credible an and probative. The evidence as whole indicates that prior to October 7, 2020, the Veteran suffered from right knee enthesopathy and osteoarthritis marked by limited flexion. Although the Board finds that the Veteran’s flexion never met the rating criteria under DC 5260 to warrant a 10 percent minimum rating (that is, flexion limited to 45 degrees), his well-documented right knee pain and associated functional loss nonetheless entitled him to the minimum compensable rating of 10 percent under 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Board finds that the Veteran’s pain and associated functional loss are adequately encompassed by the minimum 10 percent disability rating under DC 5003-5260. He is not entitled to an increased disability rating of 20 percent as his right knee never demonstrated limited flexion of 30 degrees or more. Furthermore, the Board finds that the Veteran’s right knee extension was never limited by more than 5 degrees; DC 5261 requires a minimum limitation of extension of 15 degrees to warrant at 20 percent disability rating. Finally, the Board has considered whether any other DC might be applicable to the Veteran’s right knee disability during this appeal period. The Board finds no such DC is applicable. The evidence does not indicate or reasonably suggest the Veteran experienced ankylosis (DC 5256), recurrent subluxation or lateral instability (DC 5257), dislocation or removal of semilunar cartilage (DCs 5258 and 5259), impairment of the tibia and fibula (DC 5262), or genu recurvatum (DC 5263). Nor was the Veteran’s right knee extension ever limited by more than 5 degrees such that he would be entitled to a separate compensable disability rating under DC 5261 (a noncompensable disability rating is warranted where extension is limited to 5 degrees). The Board recognizes it could change the Veteran’s rating code as of November 26, 2019, to be DC 5003-5261, to better represent his limitation of extension. But doing so would not alter the actual disability rating; he would still only be entitled to a 10 percent disability rating. Thus, the Board sees no reason to alter the characterization of the rating at this time. As of October 7, 2020, an increased disability rating in excess of 10 percent is denied Following the Board’s July 2020 remand, the Veteran was afforded a VA-contracted examination on October 7, 2020. The examiner found the Veteran’s initial right knee flexion was 10 to 110 degrees (normal being 0 to 140 degrees), and his right knee extension was 110 to 10 degrees (normal being 140 to 0 degrees). The examiner documented that the Veteran’s inability to bend his right knee contributed to functional loss, such as squatting. Generally, the Veteran reported his right knee prevented him from walking for long periods, squatting repeatedly, sitting for prolonged periods, hiking, kneeling repeatedly, climbing repeatedly, and doing yard work. Pain was documented on flexion, on passive range-of-motion testing, and on non-weight bearing testing. There was localized moderate tenderness of the knee joint with evidence of crepitus. Repetitive-use testing was performed, which did not result in additional functional or range-of-motion loss. The Veteran reported flare-ups that were moderate, lasted “forever,” and were precipitated by standing and sitting for long periods of time. As to the Veteran’s right knee disability following repeated use over time and during flare-ups, the examiner determined the Veteran experienced pain that likely resulted in additional functional loss, which was estimated in rang-of-motion loss as flexion of 10 to 100 degrees and as extension of 100 to 10 degrees. The Veteran’s right knee muscle strength was 5 out of 5 as to flexion and extension. There was no observable ankylosis, muscle atrophy, subluxation, or instability. Absent evidence to the contrary, the Board finds the October 2020 VA-contracted examiner was competent to exam and diagnose the Veteran and to provide medical judgments as to his right knee disability. Cox, 20 Vet. App. at 569. The Board finds the examiner’s overall examination, medical findings, and medical judgments credible and probative. The examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran’s relevant medical records, medical history, and lay statements, and provided well-reasoned medical judgments. The Board also finds the Veteran was at all times competent to report his right knee sensations, to include, but not limited to, pain. The Board also finds he was competent at all times to report his experiences, such as difficulty walking, squatting, kneeling, and climbing stairs. The Board finds the Veteran’s statements credible an and probative. The evidence as whole indicates that as of October 7, 2020, the Veteran suffered from right knee enthesopathy and osteoarthritis marked by limited extension. In this respect, the Veteran satisfied the rating criteria for entitlement to a 10 percent disability rating under DC 5261 (limitation of extension of 10 to 14 degrees). Due to this finding, the RO properly recharacterized the Veteran’s rating code as DC 5003-5261, to reflect his rating was based on his limitation of extension as of October 7, 2020, rather than limitation of flexion (which remained noncompensable). The Board finds the Veteran is not entitled to an increased disability rating of 20 percent because the evidence of record is against finding that he had either limitation of extension of 15 degrees or more, or limitation of flexion of 30 degrees or less. 38 C.F.R. § 4.71a, DCs 5260 and 5261. In addition, the Board finds the Veteran’s 10 percent disability rating under DC 5003-5261 accounts for his well-documented right knee pain and associated functional loss, thus encompassing the factors of 38 C.F.R. §§ 4.40, 4.45, and 4.59. Furthermore, the Board is unable to award the Veteran a 10 percent disability for his arthritis, DC 5003, and a separate disability for his limitation of extension, DC 5261. To do so would constitute pyramiding, which is prohibited. 38 C.F.R. § 4.14. The Veteran’s arthritis is being rated due to his limitation of extension. Therefore, to provide him a separate rating solely under DC 5261 would provide him a duplicate rating. Id.; Cf. Esteban, 6 Vet. App. at 262. In addition, the Board cannot rate the Veteran under 5260 (limitation of flexion) and provide him a separate rating under DC 5003-5261 because he does not meet the criteria for a compensable rating for limitation of flexion; his pain and associated functional loss are already accounted for within his 10 percent rating under DC 5003-5261. Again, to do so would be impermissible pyramiding. 38 C.F.R. § 4.14. If, in the future, the Veteran meets the criteria for a compensable rating under DC 5260, he may receive a separate rating based on his limitation of flexion. Cf. Lyles v. Shulkin, 29 Vet. App. 107, 121 (2017). Finally, the Board has considered whether any other DC might be applicable to the Veteran’s right knee disability during this appeal period. The Board finds no such DC is applicable. The evidence does not indicate or reasonably suggest the Veteran experienced ankylosis (DC 5256, in effect prior to and as of February 7, 2021), recurrent subluxation, lateral instability, or patellar instability (DC 5257, in effect prior to and as of February 7, 2021), dislocation or removal of semilunar cartilage (DCs 5258 and 5259, in effect prior to and as of February 7, 2021), impairment of the tibia and fibula (DC 5262, in effect prior to and as of February 7, 2021), or genu recurvatum (DC 5263, in effect prior to and as of February 7, 2021). In sum, the Veteran is not entitled to an increased disability rating in excess of 10 percent throughout the entire appeal period. Nor is he entitled to separate ratings under any other Diagnostic Code. 2. Right ankle sprain The RO rated the Veteran’s right ankle sprain under 38 C.F.R. § 4.71a, DC 5271 (“Ankle, limited motion”), which, prior to February 7, 2021, provided: Rating (%) Ankle, limited motion of: Marked 20 Moderate 10 The criteria in DC 5271, however, contained no specific objective “limited motion” measurements, and neither DC 5271 nor section 4.71a defines “moderate” or “marked” limitation of motion. Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 805–06 (Fed. Cir. 2010). “Moderate,” as an adjective, is defined as “not violent, severe, or intense”; “limited in scope or effect.” Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Mar. 7, 2021). “Marked,” as an adjective, is defined as “having a distinctive or emphasized character.” Marked, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/marked, Definition 2 (last visited Mar. 7, 2021). Using the above definitions as guidance, the Board must arrive at an equitable and just decision based on an evaluation of all relevant evidence. 38 C.F.R. §§ 4.2, 4.6. The Board keeps in mind that the terms “moderate” and “marked” are used in relation to the ankle’s “limitation of motion” under DC 5271, which may encompass various symptoms. It should also be noted that use of terminology such as “moderate” and “marked” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. In addition, objective evidence is not required to assign a disability rating under DC 5271. Cf. English v. Wilkie, 30 Vet. App. 347, 353 (2018); Petitti, 27 Vet. App. at 427 (2015). VA amended DC 5271 as of February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,460 (Nov. 30, 2020), as amended 85 Fed. Reg. 85,523 (Dec. 29, 2020), as amended 86 Fed. Reg. 8,142 (Feb. 4, 2021). Because the Veteran’s appeal was pending prior to these amendments, the Board is required to analyze his claim under both versions of 38 C.F.R. § 4.71a, DC 5271, and whatever criteria is more favorable to the Veteran will be applied as of February 7, 2021. See Ervin v. Shinseki, 24 Vet. App. 318 (2011) (discussing retroactivity and effects of changes in law or regulation during the pendency of an appeal), opinion corrected, 25 Vet. App. 178 (2012). As of February 7, 2021, 38 C.F.R. § 4.71a, DC 5271 now provides: Rating (%) Ankle, limited motion of: Marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) 20 Moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) 10 Notably, the terms “moderate” and “marked” are now accompanied by objective criteria relating to limitation of motion. As such, DC 5271 now requires objective evidence of such limitation for either rating but does not exclude subjective evidence from consideration. As previously discussed, with all musculoskeletal disabilities, the Board must consider the application of the criteria within 38 C.F.R. §§ 4.40, 4.45, and 4.59. As of May 20, 2014, an initial disability rating of 10 percent is granted The RO granted the Veteran service connection for his right ankle sprain in a January 17, 2015, rating decision and assigned an initial noncompensable disability rating as of May 20, 2014 (the date of his claim for service connection). The Veteran filed a claim for an increased rating on April 21, 2015. The RO issued a rating decision on July 13, 2015, granting the Veteran a 10 percent disability rating as of April 21, 2015. The Veteran filed a notice of disagreement as to his disability rating on October 27, 2015, within one year of both rating decisions. 38 U.S.C. § 7105. Although the Veteran only cited the July 13, 2015, rating decision as the basis for his appeal, the Board concludes that the appeal before it is part of a claim stream that began with the Veteran’s claim for service connection received by VA on May 20, 2014. Even if the January 17, 2015, was not properly appealed, the Board would find clear and unmistakable error with respect to the initial disability rating assigned. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. At the time the Veteran filed his claim on May 20, 2014, his medical records prior to that date credibly indicated he suffered from bilateral ankle pain. See June 2002 VA Primary Care Clinic Note (noting ankle pain); January 2014 VA Nursing Note (same); April 2014 VA Emergency Department Note (noting some restriction of motion on plantar flexion of ankles and pain); May 2014 VA Physical Medicine Rehab Consult (noting worsening ankle pain). Following his claim, his medical records continued to document right ankle pain. See October 2014 VA Clinic Note (report of ankle pain). An April 2014 VA radiology medical document indicated the Veteran had mild bilateral ankle instability. During a November 2014 VA-contracted medical examination, the Veteran reported that sometimes his ankles hurt so bad it was difficult for him to walk. He did not report flare-ups. He had right ankle plantar flexion of 45 degrees or greater (normal endpoint being 45 degrees) and dorsiflexion of 20 degrees or greater (normal endpoint being 20 degrees). Pain was not noted in either range-of-motion testing. The Veteran did not lose additional range of motion after repetitive use, but did experience weakened movement, excess fatiguability, and pain on movement. His muscle strength was normal. He did not experience joint instability or ankylosis. Absent evidence to the contrary, the Board finds the November 2014 VA-contracted was competent to exam and diagnose the Veteran. Cox, 20 Vet. App. at 569. The Board finds the examiner’s overall examination and medical findings credible and probative. Approximate to the filing of his claim, the Veteran’s right ankle disability did not display manifestations of “moderate” or “marked” limitation of motion. The most probative evidence of record at that time was the November 2014 VA-contracted examination, which did not document diminished range of motion of the right ankle. At most, the Board finds the Veteran had one instance of restricted motion that was less than moderate. April 2014 VA Emergency Department Note (noting “some” restriction of motion on plantar flexion of ankles and pain). This note, however, did not provide any description of the severity, frequency, or duration of restricted range of motion. Thus, the Board only affords it minimal probative value and finds the probative value of the November 2014 VA-contracted examination outweighs it. Nevertheless, while the Veteran had normal range of motion, including after repetitive use, his various statements about his ankle pain, as documented by his treating medical professionals, are credible and probative. In addition, the November 2014 examiner documented weakened movement, excess fatiguability, and pain on movement as contributing factors to functional loss of the Veteran’s right ankle. Accordingly, the Board finds that the Veteran was entitled to an initial, minimum disability rating of 10 percent as of May 20, 2104, consistent with the criteria under 38 C.F.R. §§ 4.40, 4.45, and 4.59 (awarding minimum compensable rating based on pain alone). Prior to November 25, 2019, an increased disability rating in excess of 10 percent is denied Throughout the appeal period, until November 25, 2019, the Board finds the Veteran’s right ankle disability did not more closely manifest as “marked” limitation of motion, 38 C.F.R. § 4.71a, DC 5271, nor did the criteria of 38 C.F.R. §§ 4.40 and 4.45 entitle the Veteran to a rating higher than 10 percent. In addition, to the above-cited VA medical records concerning the Veteran’s right ankle, during a December 2015 VA rheumatology consult, a physician examined the Veteran’s right ankle and documented limited range of motion due to pain in all directions, “especially in flexion.” The physician did not quantify the loss of range of motion or otherwise provide additional information. The Board has no reason to doubt the competency or credibility of the physician. But due to the lack of contextual information, the Board can only assign the physician’s medical findings minimal probative value. The Board cannot reasonably determine the severity of the Veteran’s pain or to what degree he suffered loss of right ankle motion. The Veteran was afforded VA-contracted examination in May 2015. Absent evidence to the contrary, the Board finds the May 2015 VA-contracted examiner was competent to exam and diagnose the Veteran. Cox, 20 Vet. App. at 569. But the Board finds certain portions of the examination and medical findings not credible. Significantly, the examiner documented the Veteran’s initial right ankle range of motion was 0 to 10 degrees (normal being 0 to 20 degrees) and plantar flexion was 0 to 40 degrees (normal being 0 to 45 degrees). The examiner opined that due to pain, fatigue, weakness, and lack of endurance, the Veteran suffered significant functional loss after repetitive use over time and during flare-ups. The examiner indicated was unable to offer an estimation in terms of range of motion as to repetitive use over time, but he did state—without any explanation—“5 degree dorsiflexion, 5 degree plantar flexion.” The Board is unable to determine with reasonable certainty what the examiner meant by this statement. Oddly, the examiner was able to offer an explanation as to loss of range of motion during flare-ups. The examiner opined that the Veteran’s range of motion would likely be 0 to 15 degrees dorsiflexion and 0 to 40 degrees plantar flexion. This too is problematic because the examiner’s opinion means that the Veteran’s range of motion increased as to dorsiflexion during flare-ups and experienced no change in plantar flexion even though the examiner found significant functional loss due to pain, fatigue, weakness, and lack of endurance during flare-ups. The Board finds these portions of the examination internally inconsistent, thus making them neither credible nor probative. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (“[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one.”). The Veteran was also afforded a VA-contracted examination in February 2018 for purpose of evaluating his left ankle. Nevertheless, the examiner also evaluated the Veteran’s right ankle. Thus, the Board finds the February 2018 examination contains relevant information to consider. The examiner documented the Veteran had right ankle dorsiflexion of 0 to 10 degrees (normal being 0 to 20 degrees) and plantar flexion of 0 to 30 degrees (normal being 0 to 45 degrees). Pain was noted on examination with each range of motion. The examiner noted medial joint tenderness on touch. There was no pain with weightbearing or evidence of crepitus. After repetitive-use testing, the Veteran did not suffer additional loss of range of motion. As to repetitive use over time and flare-ups, however, the examiner estimated that the Veteran would likely suffer additional functional loss due to pain, and he estimated that the loss of range of motion as to each would be: dorsiflexion of 0 to 5 degrees and plantar flexion of 0 to 20 degrees. The examiner did not find muscle atrophy, ankylosis, or instability associated with the right ankle. Absent evidence to the contrary, the Board finds the February 2018 VA-contracted examiner was competent to exam and diagnose the Veteran. Cox, 20 Vet. App. at 569 (2007). The Board finds the examiner’s overall examination and medical findings credible and highly probative. The Veteran’s ankles were x-rayed in July 2019. Based on the X-rays, a physician opined the Veteran had mild arthritis at the midfoot. Beyond this medical evidence, the Veteran testified at his January 2018 Board hearing that he was not able to bend his right ankle “too well.” January 2018 Board Hearing Transcript, at 13. He demonstrated his range of motion during the hearing. He indicated pain as he was moving his right ankle. Id. The Veteran testified he had pain while walking and climbing stairs. Id. at 13–14. The Veteran did not provide testimony as to the severity, frequency, or duration of his pain or other associated symptoms with his right ankle. Nor did the Veteran provide testimony as to the loss of range of motion other than that already indicated. Overall, the Board finds the Veteran was competent to offer testimony about his physical sensations and experiences associated with his right ankle, and the Board finds him credible. But his testimony offers little in the way of determining the extent of the severity of his right ankle disability. At most, what the Board gathered from his testimony is that he had functional loss and associated pain. The Veteran made similar statements within his correspondences with VA. He indicated he could “pull [his] toes up but [had] pain when trying to move the ankles.” October 2015 Notice of Disagreement. He also experienced pain going up and down stairs. Id. The Board finds that prior to November 25, 2019, the Veteran’s right ankle disability did not more closely manifest as “marked” limitation of motion. While the Veteran did experience a loss of range of motion and functional loss, he generally retained initial range of motion around 10 degrees of dorsiflexion and 30 degrees of plantar flexion. His range of motion and associated pain moderately impeded his functional abilities, to include walking and climbing stairs. Following repetitive use over time and during flare-ups, the Veteran’s range of motion did decrease, but he still retained functionality in his ankle. There is a lack of evidence of swelling, discoloration, loss of muscle strength, or instability throughout the appeal period. The most prevalent symptom was pain. The Board finds the Veteran’s right ankle symptomatology is adequately encompassed by “moderate” limitation of motion. His symptomatology was not noticeably distinct such that the Veteran’s range of motion and functionality were severely diminished or that his pain was intense. Thus, a 20 percent disability rating is not warranted under 38 C.F.R. § 4.71a, DC 5271 prior to November 15, 2019. The Board has considered whether any other DC is applicable during this appeal period. As the Veteran did not experience right ankle ankylosis, malunion of the os calcis or astragalus, or astragalectomy, no other DCs are appliable. 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274. As of November 25, 2019, an increased disability rating of 20 percent is granted As of November 25, 2019, the Board finds the Veteran’s right ankle disability most closely manifested as “marked” limitation of motion, 38 C.F.R. § 4.71a, DC 5271, thus warranting an increased disability rating of 20 percent. The Board has considered whether it would be more beneficial to Veteran to apply the new version of DC 5271 as of February 7, 2021, and the Board finds it would not. The new version of DC 5271 requires less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, which the Veteran’s right ankle has not exhibited. Thus, the Board will apply DC 5271 in effect prior to February 7, 2021, for the entire appeal period. The Veteran was afforded a VA-contracted examination on November 25, 2019. The examiner documented the Veteran had initial right ankle dorsiflexion of 0 to 5 degrees (normal being 0 to 20 degrees) and plantar flexion of 0 to 20 degrees (normal being 0 to 45 degrees). Pain was noted on examination with each range of motion, which caused functional loss. The Veteran’s limited range of motion interfered with his basic ambulation, climbing, and squatting. The examiner noted moderate medial joint tenderness on touch. There was no pain with weight bearing or evidence of crepitus. After repetitive-use testing, the Veteran did not suffer additional loss of range of motion but did experience “significant” pain with movement. As to repetitive use over time and flare-ups, the examiner documented the Veteran’s pain and weakness would likely cause additional functional loss but estimated that the Veteran would not likely suffer additional loss of range of motion. The examiner found the Veteran’s right ankle’s muscle strength was reduced to 3 out of 5 (with 5 out of 5 being normal) on dorsiflexion and plantar flexion. The examiner did not find muscle atrophy, ankylosis, or instability associated with the right ankle. The Veteran was afforded another VA-contracted examination in October 2020. During the examination, the Veteran reported experiencing flare-ups that were “moderate,” lasted “forever,” and were precipitated by prolonged standing and walking. Due to constant pain, the Veteran experienced functional loss of his right ankle. The examiner documented the Veteran had right ankle dorsiflexion of 0 to 10 degrees (normal being 0 to 20 degrees) and plantar flexion of 0 to 30 degrees (normal being 0 to 45 degrees). Pain was noted on examination with each range of motion, which caused functional loss. The Veteran’s limited range of motion interfered with running and jumping. The examiner noted moderate medial joint tenderness on touch. There was no pain with weightbearing or evidence of crepitus. After repetitive-use testing, the Veteran did not suffer additional loss of range of motion. As to repetitive use over time and flare-ups, the examiner documented the Veteran’s pain would likely cause additional functional loss and estimated the loss in terms of range of motion as 0 to 5 degrees (dorsiflexion) and 0 to 25 degrees (plantar flexion). The examiner found the Veteran’s right ankle’s muscle strength was normal. The examiner did not find muscle atrophy, ankylosis, or instability associated with the right ankle. The Board finds the Veteran’s right ankle’s limitation of motion was “marked” as of November 25, 2019, the date of the VA-contracted examination. As of that date, it was factually ascertainable that the Veteran’s right ankle’s range of motion was noticeably diminished. Previously, his general range of motion of dorsiflexion was 0 to 10 degrees, not including after repetitive use and during flare-ups. As of November 25, 2019, his general range of motion of dorsiflexion was 0 to 5 degrees. His plantar flexion was also noticeably diminished. Previously, his general range of motion of plantar flexion was 0 to 30 degrees, not including after repetitive use and during flare-ups. As of November 25, 2019, his general range of motion of plantar flexion was 0 to 20 degrees. In addition, his muscle strength was noticeably diminished. While October 2020 examiner documented initial ranges of motion and muscle strength more consistent with the examinations prior to November 25, 2019, the Board finds the October 2020 examiner’s estimation that the Veteran would likely suffer from reduced dorsiflexion (0 to 5 degrees) and plantar flexion (0 to 25 degrees) after repetitive use and during flare-ups provides a more accurate representation of his current right ankle limitation of motion. This is particularly due to the Veteran’s well-documented functional limitations that involve use of his right ankle, to include walking, running, jumping, squatting, and general daily activities as he has consistently and credibly reported. Finally, the Veteran’s pain has been constant and increasing in severity in the Board’s view. Accordingly, the Board finds that as of November 25, 2019, it was factually ascertainable that the Veteran’s right ankle disability manifested most closely as “marked” limitation of motion, thus warranting and increased disability rating of 20 percent. A rating of 20 percent the maximum allowed under DC 5271. The Board does not find that a referral on an extraschedular basis is appropriate at this time as the Veteran still retains functionality and mobility in his right ankle; thus, it is not an exceptional case warranting such review. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). (Continued on the next page)   The Board has considered whether any other DC is applicable during this appeal period. As the Veteran did not experience right ankle ankylosis, malunion of the os calcis or astragalus, or astragalectomy, no other DCs are appliable. 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.