Citation Nr: 21024738 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-29 353 DATE: April 26, 2021 ORDER An initial disability rating in excess of 10 percent prior to November 23, 2020, and in excess of 40 percent thereafter, for degenerative joint disease of the right knee is denied. An initial disability rating in excess of 10 percent prior to October 5, 2020 for degenerative joint disease of the left knee is denied. An initial disability rating in excess of 10 percent for degenerative joint disease of the right ankle is denied. An initial disability rating in excess of 10 percent for degenerative joint disease of the left ankle is denied. A total disability rating based on individual unemployability (TDIU) prior to October 5, 2020 is denied. FINDINGS OF FACT 1. Prior to November 23, 2020, the Veteran’s right knee disability was characterized by pain; limitation of flexion to 30 degrees, limitation of extension to 15 degrees, a combination of limitation of flexion to 45 degrees and limitation of extension to 10 degrees, favorable ankylosis of the knee in full extension or in slight flexion between 0 and 10 degrees have not been shown, and x-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations have not been shown. 2. Since November 23, 2020, the Veteran’s right knee disorder has not been manifested by limitation of extension to 45 degrees or unfavorable ankylosis of the knee in flexion between 20 and 45 degrees. 3. Prior to October 5, 2020, the Veteran’s left knee disorder was not manifested by limitation of flexion to 30 degrees, limitation of extension to 15 degrees, a combination of limitation of flexion to 45 degrees and limitation of extension to 10 degrees, favorable ankylosis of the knee in full extension or in slight flexion between 0 and 10 degrees have not been shown, or x-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 4. Throughout the period on appeal, the Veteran’s right ankle disability has not been manifested by ankylosis of the ankle with plantar flexion less than 30 degrees, “marked” limitation of motion, ankylosis of the subastragalar or tarsal joint in poor weight-bearing position, malunion of the Os calcis or astragalus with marked deformity, or astragalectomy. 5. Throughout the period on appeal, the Veteran’s left ankle disability has not been manifested by ankylosis of the ankle with plantar flexion less than 30 degrees, “marked” limitation of motion, ankylosis of the subastragalar or tarsal joint in poor weight-bearing position, malunion of the Os calcis or astragalus with marked deformity, or astragalectomy. 6. The evidence does not indicate that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to October 5, 2020. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent prior to November 23, 2020 and in excess of 40 percent thereafter for degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5261. 2. The criteria for an initial disability rating in excess of 10 percent for degenerative joint disease of the left knee prior to October 5, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5260. 3. The criteria for an initial disability rating in excess of 10 percent for degenerative joint disease of the right ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5271. 4. The criteria for an initial disability rating in excess of 10 percent for degenerative joint disease of the left ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5271. 5. The criteria for TDIU prior to October 5, 2020 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to March 1978, and from August 1980 to November 1990. The Veteran has also disagreed with the 30 percent disability rating for his left knee disability that will become effective in December 2021. To the extent that the January 2021 rating decision proposed a future disability rating of 30 percent effective December 2021 for his left knee replacement, the Board acknowledge that 30 percent is not the maximum possible rating for that disability. However, the Board cannot presently adjudicate the propriety of a future rating as part of the instant appeal. Should the Veteran wish to challenge that rating at the time that the rating becomes effective, he is free to do so. INCREASED RATINGS The Veteran is seeking increased initial disability ratings for his service-connected left hip, left thigh, and left knee disabilities. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate 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. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. 1. Entitlement to an initial disability rating in excess of 10 percent prior to November 23, 2020 and in excess of 40 percent thereafter for degenerative joint disease of the right knee The Veteran contends that he is entitled to an initial disability rating in excess of 10 percent prior to November 23, 2020 and in excess of 40 percent thereafter for his service-connected degenerative joint disease of the right knee. He contends that a higher disability rating is warranted because he has an impending knee replacement surgery for his right knee. In addition to the principles set forth above, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003, 5257, and 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disability is already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran’s knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). Moreover, a separate rating could be warranted under 38 C.F.R. § 4.59, based on X-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. It should be noted that, during the course of this appeal, the schedular criteria for evaluating the lateral instability of the knee have been amended. Specifically, the criteria pertaining to lateral instability of the knee under 38 C.F.R. § 4.71a, DC 5257, was amended effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020), but the criteria for evaluating other disabilities pertaining to the knee, such as limitation of flexion, remained the same. Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, 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; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran’s claim was received prior to the effective date of the regulation changes, the Board will consider whether the Veteran is entitled to a separate disability rating for lateral instability of the knee under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id. Prior to November 23, 2020 Prior to November 23, 2020, the Veteran’s right knee disability has been assigned a 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5003-5260. In order to warrant an increased rating based on limitation or traumatic arthritis, the evidence must show: • Limitation of flexion to 30 degrees (20 percent under DC 5260); • Limitation of extension to 15 degrees (20 percent under DC 5261); • Limitation of flexion to 45 degrees and limitation of extension to 10 degrees (two separate 10 percent ratings under DCs 5260 and 5261, respectively); • Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256); or • X-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003). 38 C.F.R. § 4.71a. After a review of the evidence of record, the Board concludes that a disability rating in excess of 10 percent for the Veteran’s right knee disability based upon limitation of motion or arthritis is not warranted. Initially, the reports from the August 2013 and June 2016 VA examinations fail to establish that a disability rating in excess of 10 percent is warranted for the Veteran’s left knee disability based upon limitation of motion or arthritis. The report from the August 2013 VA examination reflects that the Veteran reported that his right knee disability caused him to experience pain, and that he experienced flareups that caused increased pain and decreased motion in his right knee. The examination report reflects that his right knee flexion ended at 120 degrees, with objective evidence of pain at pain at 115 degrees, and that there was no limitation of extension and no objective evidence of pain on extension. The examination report also reflects that he was able to perform repetitive use testing with flexion ending at 120 degrees and normal extension. The examiner noted that there was less movement than normal and pain on movement after repetitive use testing. The examination report also does not reflect that the Veteran had ankylosis in his right knee. Finally, although degenerative or traumatic arthritis was documented, no occasional incapacitating exacerbations of arthritis were noted in the examination report. The report from the June 2016 VA examination reflects that the Veteran reported that his right knee disability bothered him when he walked for more than 30 minutes, climbed stairs for three to four minutes, when he walked with 50 pounds of weight in his arms, and when he sat for more than 30 to 40 minutes. He did not report flareups. The examination report reflects that the Veteran had a normal range of motion in his left knee, with flexion in both knees ending at 140 degrees and extension ending at 0 degrees. The examiner noted that the Veteran did not experience pain on examination. The examination report also reflects that the Veteran was able to perform repetitive use testing without any additional functional loss or loss of range of motion after three repetitions. Although he was not being examined immediately after repetitive use over time, the examiner determined that pain, weakness fatigability, and incoordination did not significantly limit functional ability. Finally, the examination report reflects that he did not have ankylosis of the right knee, and that although degenerative or traumatic arthritis was documented, no occasional incapacitating exacerbations of arthritis were noted. Given that the August 2013 and June 2016 VA examination reports do not reflect that flexion of his right knee has been limited to 30 degrees, extension to 15 degrees, flexion to 45 degrees and extension to 10 degrees of either knee, ankylosis of either knee, or x-ray evidence of arthritis with involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes, the examination reports do not establish that a disability rating in excess of 10 percent for either his right knee disability or his right knee disability is warranted. Moreover, none of the Veteran’s treatment records indicate that his right knee flexion ended at 30 degrees, extension ended at 15 degrees, or that flexion ended at 45 degrees and extension at 10 degrees. His treatment records also provide no evidence of ankylosis. Finally, the record contains no x-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joints with occasional incapacitating episodes. Accordingly, the Board concludes that the assignment of a disability rating in excess of 10 percent based upon limitation of motion for his right knee disability prior to November 23, 2020 is not warranted. From November 23, 2020 Since November 23, 2020, the Veteran’s right knee disability has been assigned a 40 percent disability rating under 38 C.F.R. § 4.71a, DC 5003-5260. In order for the assignment of a disability rating in excess of 40 percent to be warranted based on limitation or traumatic arthritis, the evidence must show: • Limitation of extension to 45 degrees (50 percent under DC 5261); or • Unfavorable ankylosis of the knee in flexion between 20 and 45 degrees (50 percent under DC 5256). 38 C.F.R. § 4.71a. After a review of the evidence of record, the Board concludes that the assignment of a disability rating in excess of 40 percent from November 23, 2020 for the Veteran’s right knee disability based upon limitation of motion or arthritis is not warranted. Here, the report from the November 2020 VA examination fails to establish that a disability rating in excess of 40 percent is warranted for the Veteran’s right knee disability from November 23, 2020 based upon limitation of motion. Specifically, the report from the November 2020 VA examination reflects that he does not have ankylosis of the right knee and that his extension of the left knee ended at 30 degrees. Further, the Veteran’s treatment records fail to show limitation of extension to 45 degrees or ankylosis of the left knee. Accordingly, the Board concludes that a disability rating in excess of 40 percent for his left knee disability from November 23, 2020. Next, the Board considers whether separate compensable ratings for the Veteran’s right knee disability are warranted based upon instability, injuries to the semilunar cartilage, or genu recurvatum throughout the period on appeal. Under the old criteria, in order to warrant a compensable rating based on knee instability or cartilage symptoms, the evidence must show: • Recurrent subluxation or lateral instability (under DC 5257; 10 percent for “slight” symptoms, 20 percent for “moderate” symptoms, and 30 percent for “severe” symptoms); • Dislocation of the semilunar cartilage with frequent episodes of “locking,” pain and effusion in the joint (20 percent under DC 5258); • Symptomatic symptoms due to the removal of the semilunar cartilage (10 percent under DC 5259); • Malunion of the tibia and fibula requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment in one or both lower extremities (10 percent under DC 5262); or • Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight bearing objectively demonstrated) (10 percent under DC 5263). 38 C.F.R. § 4.71a. Under the new criteria, only DC 5257 was revised. The revised DC 5257 provides that a compensable rating is warranted when the evidence shows a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Id. Note 1 to DC 5257 further provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. In this case, the Board determines that the assignment of separate disability ratings for his right knee disability based on instability, injuries to the semilunar cartilage, malunion of the tibia and fibula, and genu recurvatum under both the old DC 5257, the revised DC 5257, DC 5258, DC 5259, DC 5262, and DC 5263 is not warranted. Here, the reports from the August 2013, June 2016, and November 2020 VA examinations reflect that he did not have instability, meniscal conditions, malunion of the tibia or fibula, or genu recurvatum of the right knee. The Veteran’s treatment records also do not reflect that his right knee disability has involved any of these conditions. Accordingly, the assignment of separate disability ratings for his right knee based on instability, injuries to the semilunar cartilage, malunion of the tibia and fibula, and genu recurvatum. 2. Entitlement to an initial disability rating in excess of 10 percent prior to October 5, 2020 for degenerative joint disease of the left knee The Veteran contends that a disability rating in excess of 10 percent is warranted for his left knee disability prior to October 5, 2020. After a review of the evidence of record, the Board concludes that a disability rating in excess of 10 percent for the Veteran’s left knee disability based upon limitation of motion or arthritis is not warranted. Initially, the reports from the August 2013 and June 2016 VA examinations fail to establish that a disability rating in excess of 10 percent is warranted for the Veteran’s left knee disability based upon limitation of motion or arthritis. The report from the August 2013 VA examination reflects that the Veteran reported that his left knee disability caused him to experience pain, and that he experienced flareups that caused increased pain and decreased motion in his left knee. The examination report reflects that his left knee flexion ended at 115 degrees, with objective evidence of pain at pain at 105 degrees, and that there was no limitation of extension and no objective evidence of pain on extension. The examination report also reflects that he was able to perform repetitive use testing with flexion ending at 120 degrees and normal extension. The examiner noted that there was less movement than normal and pain on movement after repetitive use testing. The examination report also does not reflect that the Veteran had ankylosis in his left knee. Finally, although degenerative or traumatic arthritis was documented, no occasional incapacitating exacerbations of arthritis were noted in the examination report. The report from the June 2016 VA examination reflects that the Veteran reported that his left knee disability bothered him when he walked for more than 30 minutes, climbed stairs for three to four minutes, when he walked with 50 pounds of weight in his arms, and when he sat for more than 30 to 40 minutes. He did not report flareups. The examination report reflects that the Veteran had a normal range of motion in his left knee, with flexion in both knees ending at 140 degrees and extension ending at 0 degrees. The examiner noted that the Veteran did not experience pain on examination. The examination report also reflects that the Veteran was able to perform repetitive use testing without any additional functional loss or loss of range of motion after three repetitions. Although he was not being examined immediately after repetitive use over time, the examiner determined that pain, weakness fatigability, and incoordination did not significantly limit functional ability. Finally, the examination report reflects that he did not have ankylosis of the left knee, and that although degenerative or traumatic arthritis was documented, no occasional incapacitating exacerbations of arthritis were noted. Given that the August 2013 and June 2016 VA examination reports do not reflect that flexion of his left knee has been limited to 30 degrees, extension to 15 degrees, flexion to 45 degrees and extension to 10 degrees of either knee, ankylosis of either knee, or x-ray evidence of arthritis with involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes, the examination reports do not establish that a disability rating in excess of 10 percent for either his left knee disability or his right knee disability is warranted. The Board has also considered whether the assignment of separate disability ratings for his left knee disability are warranted based on instability, injuries to the semilunar cartilage, malunion of the tibia and fibula, and genu recurvatum under both the old DC 5257, the revised DC 5257, DC 5258, DC 5259, DC 5262, and DC 5263, but finds that separate ratings are not warranted. Here, the reports from the August 2013, June 2016, and November 2020 VA examinations reflect that he did not have instability, meniscal conditions, malunion of the tibia or fibula, or genu recurvatum of the left knee. The Veteran’s treatment records also do not reflect that his left knee disability has involved any of these conditions. Accordingly, the assignment of separate disability ratings for his left knee based on instability, injuries to the semilunar cartilage, malunion of the tibia and fibula, and genu recurvatum. The Board also considered whether higher evaluations are warranted for his left and right knee disabilities based on functional loss due to fatigability, incoordination, pain on movement, pain on weight-bearing, flare-ups, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Sharp, 29 Vet. App. 26; Correia, 28 Vet. App. 158; DeLuca, 8 Vet. App. 206. In this case, the Veteran has indicated that his left and right knee disabilities have caused him to experience pain, caused him to experience pain when walking for more than 30 minutes, climbing stairs for three to four minutes, walking with 50 pounds of weight in his arms, and sitting for more than 30 to 40 minutes. However, although he experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell, 25 Vet. App. At 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Importantly, the June 2016 and November 2020 VA examination reflect that the examiners determined that there was no additional functional loss or loss of range of motion after repetitive use testing, and that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repetitive use over time. Further, the August 2013 VA examiner determined that after repetitive use testing, there was no additional loss of right knee flexion or extension, and that there was no loss of left knee extension and that he gained left knee flexion. Thus, the Board finds that the effect of the pain and functional loss in his right and left knees is already contemplated in the currently assigned evaluations. The Veteran’s statements, while fully credible, do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond that already assigned. In considering the appropriate initial disability rating, the Board has also considered the statements from the Veteran that his service-connected left and right knee disabilities are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his left and right knee disabilities according to the appropriate DCs. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s right ankle disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the August 2013, June 2016, and November 2020 VA examination reports) directly address the criteria under which his left and right ankle disabilities are evaluated. 3. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right ankle 4. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the left ankle The Veteran contends that initial disability ratings in excess of 10 percent are warranted for his service-connected degenerative joint disease of the right and left ankles. Specifically, he contends that increased initial disability ratings are warranted for his left and right ankle disabilities because he has endured regular injections and been prescribed medication to treat the pain caused by his ankle disabilities. Further, he asserts that increased initial disability ratings are warranted for his left and right ankle disabilities because surgery has been an option to treat his ankle disabilities, but he has not elected to have the surgery because of the risk that surgery would result in increased pain and a decreased range of motion. The Veteran’s right ankle disability has been assigned a 10 percent rating under 38 C.F.R. § 4.71a, DC 5271 (addressing limitation of motion of the ankle). It should be noted that, during the course of this appeal, the schedular criteria for evaluating limitation of motion of the ankle have been amended. Specifically, the criteria pertaining to limitation of motion of the ankle under 38 C.F.R. § 4.71a, DC 5271, was amended effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, 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; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran’s claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran’s limitation of motion of the left and right ankles under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id. As set forth above, the Veteran’s right ankle disorder has been assigned an initial 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5271. In order to warrant a rating in excess of 10 percent for an ankle disability under the old criteria, the evidence must show: • Ankylosis of the ankle with plantar flexion less than 30 degrees (20 percent under DC 5270); • “Marked” limitation of motion (20 percent DC 5271); • Ankylosis of the subastragalar or tarsal joint in poor weight-bearing position (20 percent under DC 5272); • Malunion of the Os calcis or astragalus with marked deformity (20 percent under DC 5273); or • Astragalectomy (20 percent under DC 5274). 38 C.F.R. § 4.71a. Under the old criteria, the terms “moderate” and “marked” were not defined in the Rating Schedule. Rather than applying a mechanical formula under the old criteria, the Board was directed to evaluate all of the evidence to the end that its decisions were “equitable and just.” 38 C.F.R. § 4.6. In order to warrant a rating in excess of 10 percent for an ankle disability under the revised criteria, the evidence must show: • Ankylosis of the ankle with plantar flexion less than 30 degrees (20 percent under DC 5270); • “Marked” limitation of motion, meaning less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion (20 percent DC 5271); • Ankylosis of the subastragalar or tarsal joint in poor weight-bearing position (20 percent under DC 5272); • Malunion of the Os calcis or astragalus with marked deformity (20 percent under DC 5273); or • Astragalectomy (20 percent under DC 5274). 38 C.F.R. § 4.71a. Based upon the evidence of record, an initial disability rating in excess of 10 percent is not warranted for the Veteran’s left and right ankle disabilities. Initially, the reports from the August 2013, June 2016, and November 2020 VA examinations do not show that an initial disability rating in excess of 10 percent is warranted for his left and right ankle disabilities. First, the report from the August 2016 VA examination reflects that the Veteran reported that he had experienced pain in his left and right ankles since service, and that he reported flareups with increased pain and decreased motion. With respect to his right ankle, the examination report reflects that he exhibited 30 degrees of plantar flexion, with no objective evidence of painful motion, and 15 degrees of dorsiflexion, with no objective evidence of painful motion. With respect to his left ankle, the examination report reflects that he exhibited 35 degrees of plantar flexion, with no objective evidence of painful motion, and 15 degrees of dorsiflexion, with no objective evidence of painful motion. The examination report also reflects that the Veteran was able to complete repetitive use testing with no additional loss of range of motion in either ankle. Additionally, the examination report reflects that the Veteran had normal muscle strength in both ankles, had not had an astragalectomy, had not had malunion of the Os calcis or astragalus with marked deformity, and that he did not have ankylosis of either ankle. Finally, the examination report reflects that the examiner noted that the Veteran’s ankle condition was “mild to moderate” in severity, and that the examiner estimated that the Veteran would have 10 degrees of loss of range of motion from the measurements set forth in the examination report, moderate weakness, moderate fatigability, and mild incoordination during a flareup. The report from the June 2016 VA examination reflects that the Veteran reported that it bothered his ankles if he walked for more than 30 minutes or climbed stairs for more than three to four minutes. The Veteran denied flareups of either ankle. With respect to his right ankle, the examination report reflects that he had normal dorsiflexion and normal plantar flexion, and that although pain was noted in connection with dorsiflexion during the examination, it did not result in functional loss. With respect to his left ankle, the examination report reflects that he had normal dorsiflexion and normal plantar flexion, and that although pain was noted in connection with dorsiflexion during the examination, it did not result in functional loss. The examination report also reflects that he was able to perform repetitive use testing with no additional loss of range of motion in either ankle, and that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. Additionally, the examination report reflects that he had normal muscle strength in both ankles, had no instability in either ankle, had not had an astragalectomy, had not had malunion of the Os calcis or astragalus with marked deformity, and that he did not have ankylosis of either ankle. Finally, the examination report does not reflect that there was any additional functional limitation due to pain or weightbearing. The report from the November 2020 VA examination reflects that the Veteran reported that his right ankle had previously been placed in a cast for six weeks, that he had been given multiple steroid injections in both ankles to treat them, that his current symptoms were pain in the ankles after standing or walking for more than 30 minutes, and, as a result, that he was not able to stand or walk for more than 30 minutes. The examination report also reflects that he denied flareups of either ankle. With respect to his right ankle, the examination report reflects that he had normal dorsiflexion and normal plantar flexion, and that although pain was noted on plantar flexion and dorsiflexion, it did not result in or cause functional loss. With respect to his left ankle, the examination report reflects that he had normal dorsiflexion and normal plantar flexion, and that although pain was noted on plantar flexion and dorsiflexion, it did not result in or cause functional loss. The examination report also reflects that he was able to perform repetitive use testing with no additional loss of range of motion or loss of function in either ankle, and that repetitive use over time did not result in a loss of range of motion in either ankle. Additionally, the examination report reflects that he had normal muscle strength in both ankles, had no instability in either ankle, had not had an astragalectomy, had not had malunion of the Os calcis or astragalus with marked deformity, and that he did not have ankylosis of either ankle. Finally, the examination report does not reflect that there was any additional functional limitation due to pain or weight bearing, and that there was no evidence of pain on passive range of motion testing or non-weight bearing testing of either ankle. In this case, the reports from the August 2013, June 2016, and November 2020 VA examinations do not show that initial disability rating in excess of 10 percent are warranted under DCs 5272, 5273, and 5274 because the examination reports reflect that he did not have ankylosis of either ankle, he did not have malunion of the Os calcis or astragalus with marked deformity of either ankle, or an astragalectomy of either ankle. With respect to limitation of motion under the old criteria of DC 5271, marked limitation of motion was not shown by the examinations because the August 2013 VA examination report reflects that he exhibited 30 degrees of plantar flexion is right ankle, 15 degrees of dorsiflexion in his right ankle, 35 degrees of plantar flexion in his left ankle, and 15 degrees of dorsiflexion in his left ankle, and the June 2016 and November 2020 VA examination reports reflect that he had a normal range of motion in both ankles. Moreover, the June 2016 and November 2010 VA examination reports reflect that he did not experience flareups, that repetitive use testing and repetitive use over time did not result in additional functional loss or loss of range of motion. To the extent that the August 2013 VA examination report reflects that he did experience flareups and that his range of motion would decrease by 10 degrees during a flareup (i.e., from 30 degrees to 20 degrees of right ankle plantar flexion, from 15 degrees to 5 degrees of right ankle dorsiflexion, from 35 degrees to 25 degrees of left ankle plantar flexion, and from 15 degrees to 5 degrees of left ankle dorsiflexion), the Board does not find that the August 2013 VA examination results show “marked” limitation of motion because he would continue to have at least 20 degrees of plantar flexion in both ankles and at least 5 degrees of dorsiflexion in both ankles. Additionally, all of the examination reflect that he had normal muscle strength in both ankles, and the August 2013 VA examiner commented that the Veteran’s ankle disability was “mild to moderate” in nature. Thus “marked” limitation of motion was not shown by the August 2013, June 2016, and November 2020 VA examinations. With respect to limitation of motion under the revised criteria of DC 5271, the August 2013, June 2016, and November 2020 VA examination reports also fail to show “marked” limitation of motion because they do not show less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. Next, the Veteran’s medical treatment records do not controvert the findings of the VA examiners or reflect a sufficient limitation of motion or functional loss resulting from his right and left ankle disabilities that would warrant the assignment of initial disability ratings in excess of 10 percent. In order to prevent any potential prejudice to the Veteran, the Board has also considered whether the Veteran’s right and left ankle disabilities may be better rated under 38 C.F.R. § 4.71a, DC 5284, which addresses non-specific foot injuries. When determining whether DC 5284 is “more appropriate,” the Court has noted that a more specific statute should be “given precedence over a more general one.” See Zimick v. West, 11 Vet. App. 45, 51 (1998); see also Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this case, the disabilities being considered are specific to limitation of motion of the left and right ankles, and DC 5271 is deemed by the Board to be the most appropriate DC. Notably, this DC pertains specifically to the disability at issue (limitation on motion in the ankle), and also provides specific guidance as to how symptoms of this disability are to be evaluated. On the other hand, DC 5284 pertains only to “foot injuries,” which the Board finds to be less specific and more general. Indeed, a reasonable reading of the relevant DCs suggests that DC 5284 is more applicable to injuries that may not have been contemplated by other DCs, which is not the case here. Therefore, because there are specific DCs to evaluate ankle limitation of motion, consideration of other DCs (particularly DC 5284) for evaluating the disability is not appropriate. See 38 C.F.R. § 4.20. The Board also considered whether initial disability ratings in excess of 10 percent for the Veteran’s left and right ankle disabilities are warranted on the basis of functional loss due to fatigability, incoordination, pain on movement, pain on weight bearing, flareups, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Sharp, 29 Vet. App. 26; Correia, 28 Vet. App. 158; DeLuca, 8 Vet. App. 206. In this case, the Veteran has indicated that his left and right ankle disabilities have caused him to experience pain, to receive steroid injections to treat his ankles, and to have an inability to stand or walk for more than 30 minutes and an inability to climb stairs for more than three to four minutes. Although he experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell, 25 Vet. App. At 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Importantly, the reports from the June 2016 and November 2020 VA examinations do not reflect that he experience flareups, that his range of motion in both ankles was normal, that there was no additional loss of function or loss of range of motion in either ankle after repetitive use testing, and that there was no additional loss of function or loss of range of motion in either ankle after repetitive use over time. Additionally, although pain on weight bearing was noted in his VA examinations, the examination reports do not reflect that he experienced additional functional loss as a result of that pain. Moreover, all of the VA examination reports reflect that he had normal muscle strength in his ankles. Thus, the Board finds that the effect of the pain and functional loss in his left and right ankles is already contemplated in the currently assigned 10 percent initial disability ratings. The Veteran’s statements, while fully credible, do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond that already assigned. In considering the appropriate initial disability rating, the Board has also considered the statements from the Veteran that his service-connected left and right ankle disabilities are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his left and right ankle disabilities according to the appropriate DCs. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s right ankle disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the August 2013, June 2016, and November 2020 VA examination reports) directly address the criteria under which his left and right ankle disabilities are evaluated. By virtue of the foregoing, the Board concludes that initial disability ratings in excess of 10 percent for the Veteran’s left and right ankle disabilities are not warranted. TDIU 5. Entitlement to TDIU prior to October 5, 2020 The Veteran contends that TDIU should be granted prior to October 5, 2020 because he has been unemployed since 2014, and the pain caused by his service-connected disabilities has rendered him unable to secure or follow a substantially gainful occupation. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 386 (Mar. 14, 2019). Further, the Board should also consider whether given the Veteran’s history, education, skill, and training, in conjunction with the Veteran’s physical ability and mental ability, can perform the type of activities required by the occupation at issue. See Id. Moreover, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). A total disability rating for compensation purposes may be assigned on the basis of “individual unemployability,” or when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). After a review of the evidence of record, the Board determines that TDIU is not warranted prior to October 5, 2020 because the Veteran’s service-connected disabilities did not prevent him from securing or following a substantially gainful occupation prior to October 5, 2020. As a threshold matter, the Veteran does did not meet the schedular criteria for TDIU prior to October 5, 2020. Specifically, prior to October 5, 2020, his service-connected right knee disability was rated 10 percent disabling (effective October 25, 2012), his service-connected left knee disability was rated as 10 percent disabling (effective October 25, 2012), his service-connected right foot disability was rated as 10 percent disabling (effective October 25, 2012), his service-connected left foot disability was rated as 10 percent disabling (effective October 25, 2012), his service-connected left ankle disability was rated as 10 percent disabling (effective October 25, 2012), his service-connected right ankle disabling was rated as 10 percent disabling (effective October 25, 2012), and his service connected tinnitus was rated as 10 percent disabling (effective October 25, 2012), for a total combined rating of 60 percent. Thus, prior to October 5, 2020 he did not meet the schedular criteria for TDIU because he did not have a combined rating of 70 percent or a single disability rated as 40 percent disabling. Next, the Board finds that referral for extraschedular consideration of the Veteran’s entitlement to TDIU prior to October 5, 2020 is not warranted because his service-connected disabilities did not prevent him from securing or following a substantially gainful occupation prior to October 5, 2020. See 38 C.F.R. § 4.16(b). Here, the medical evidence does not indicate that the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation. The reports from the August 2013 VA foot conditions, ankle conditions, and knee conditions examinations reflect that he was self-employed at the University of Oregon as a skills teacher, and that his bilateral foot, ankle, and knee disabilities caused him pain while he was teaching. With respect to tinnitus, the report from the August 2013 hearing loss and tinnitus VA examination reflects that his tinnitus caused functional impact to the extent that he was irritated by intermittent high-pitched ringing primarily in his left ear. The reports from the June 2016 ankle conditions and knee conditions VA examinations reflect that the examiner determined that the functional impact of his bilateral ankle and bilateral knee disabilities did not restrict him from light and sedentary work despite his knees bothering his when he walked for over 30 minutes, climbed stairs for three to four minutes, walked with 50 pounds of weight in his arms, and when he sat for more than 30 to 40 minutes, and his ankles bothering him when he walked for more than 30 minutes or climbed stairs for three to four minutes. The Board also notes that the Veteran’s treatment records do not reflect that his service-connected disabilities have prevented him from securing or following a substantially gainful occupation. Given that the August 2013 VA examination reports reflect that he was working as a skills teacher and that the June 2016 VA examination reports reflect that the examiner determined that his service-connected bilateral knee and ankle disabilities did not prevent him from performing the duties of light or sedentary work, the Board cannot conclude that his service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to October 5, 2020. The Board also notes that the Veteran is a college graduate who has experience as an activities coordinator, where he planned activities for children and supervised and trained staff, a social services specialist with the Department of Human Services, where he performed numerous services, the executive director of a foster home, where he provided daily care and supervision for disabled adults, and a program manager where he provided oversight to an adult foster home with the assistance of caregivers that he supervised and trained. Additionally, as noted above, the August 2013 VA examination reports noted that he was an instructor at the University of Oregon. Given his education and experience performing numerous tasks, including supervisory tasks, training, outreach, and event planning, the Board cannot conclude that his service-connected disabilities prevent him from securing or following a substantially gainful occupation prior to October 5, 2020, particularly given that his education and experience lends itself to sedentary or light duty work. Moreover, the Board finds that the clinical evidence is sufficient for the Board to make its own conclusions. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner). In this regard, the Board also notes the most probative evidence, including the reports from the August 2013 and June 2016 VA examinations, does not support a finding that referral for extraschedular TDIU consideration is warranted.   By virtue of the foregoing, the Board concludes that referral for consideration of extraschedular TDIU prior to October 5, 2020 is not warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Crosnicker, Associate Counsel