Citation Nr: 21024935 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 94-05 887 DATE: April 27, 2021 ORDER An initial rating greater than 20 percent for a right shoulder disability is denied. An initial rating greater than 20 percent for a left shoulder disability is denied. An initial rating greater than 10 percent for a right ankle disability is denied. An initial rating greater than 10 percent for a left ankle disability is denied. An initial rating greater than 20 percent for a cervical spine disability is denied. An effective date, prior to April 1, 2012, for the award of basic eligibility for Dependents' Educational Assistance (DEA), is denied. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran's right shoulder disability manifested as limitation of motion of the arm at the shoulder level with functional loss due to flare-ups. 2. Throughout the entire period on appeal, the Veteran's left shoulder disability manifested as limitation of motion of the arm at the shoulder level with functional loss due to flare-ups. 3. Throughout the entire period on appeal, the Veteran's right ankle disability manifested as moderate limitation of motion with functional loss due to flare-ups. 4. Throughout the entire period on appeal, the Veteran's left ankle disability manifested as moderate limitation of motion with functional loss due to flare-ups. 5. Throughout the entire period on appeal, the preponderance of the evidence most consistently demonstrates that the Veteran's cervical spine disability manifested as forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, without ankylosis. 6. Basic eligibility for DEA benefits arose on April 1, 2012, but no earlier. CONCLUSIONS OF LAW 1. Throughout the entire period on appeal, the criteria for an initial rating greater than 20 percent for a right shoulder disability 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 (DC) 5201. 2. Throughout the entire period on appeal, the criteria for an initial rating greater than 20 percent for a left shoulder disability 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, DC 5201. 3. Throughout the entire period on appeal, the criteria for an initial rating greater than 10 percent for a right ankle disability 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, DC 5271. 4. Throughout the entire period on appeal, the criteria for an initial rating greater than 10 percent for a left ankle disability 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, DC 5271. 5. Throughout the entire period on appeal, the criteria for an initial rating greater than 20 percent for a cervical spine disability 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, DC 5243. 6. The criteria for an effective date, prior to April 1, 2012, for the award of basic eligibility for DEA, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.310, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1978 to December 1980. Effective April 2012, the Veteran’s combined rating of service-connected disorders is 100 percent. This matter was previously before the Board of Veterans’ Appeals (Board) in August 2018 when the issues were remanded for further development. Further development having been completed; the matter is once again before the Board. Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). In all claims for increased ratings, the Veteran is presumed to be seeking the maximum possible evaluation; 100 percent compensation for their disability. See A.B. v. Brown, 6 Vet. App. 35 (1993). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors regarding joint disability. 38 C.F.R. § 4.45. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ C.F.R. 3.102, 4.3. 1. An initial rating greater than 20 percent for a right shoulder disability is denied. 2. An initial rating greater than 20 percent for a left shoulder disability is denied. The Veteran contends that his service-connected right and left shoulder disabilities are worse than that which is contemplated by his current 20 percent ratings under DC 5201. The preponderance of the evidence is against the claims and the claims will be denied. DC 5201 provides that limitation of motion of the arm at the shoulder level is rated 20 percent for the major and minor shoulder; limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. The maximum schedular ratings of 40 and 30 percent are warranted for limitation of motion of the major and minor arms, respectively, to 25 degrees from the side. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71, Plate I. Under VA rating criteria, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level; normal shoulder internal and external rotation is 0 degrees to 90 degrees, with 90 degrees being shoulder level. 38 C.F.R. § 4.71, Plate I. The Veteran was afforded a VA examination in January 2017. The examiner noted diagnoses of bilateral shoulder impingement syndrome and rotator cuff tendonitis. The Veteran denied having both flare-ups and functional loss or impairment of the bilateral shoulder. Initial range of motion (ROM) measurements for both shoulders were recorded as the following: flexion to 170 degrees, abduction to 130 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. ROM itself was noted to contribute to a functional loss bilaterally due to pain and stiffness on bending. Pain was noted on all movements, and was noted to cause a functional loss bilaterally. Evidence of pain with weight bearing was noted bilaterally. Objective evidence of localized tenderness or pain on palpation was denied bilaterally. Objective evidence of crepitus was denied bilaterally. Observed repetitive use testing was performed. However, no additional loss of function or ROM was noted bilaterally. Repeated use over time testing was not performed. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time bilaterally. The examination was not conducted during a flare-up. Additional factors contributing to the Veteran’s condition were described as interference while standing bilaterally. Muscle strength testing revealed normal strength on all movements tested bilaterally, five out of five. Muscle atrophy was denied bilaterally. Ankylosis was denied bilaterally. In terms of the bilateral rotator cuff condition, the examiner noted that testing showed positive results bilaterally on both the Hawkins’ Impingement Test and the Infraspinatus Strength Test. Shoulder instability, dislocation or labral pathology was denied bilaterally. No clavicle, scapula, acromioclavicular (AC) joint, or sternoclavicular joint conditions were noted or suspected bilaterally. No conditions or impairments of the humerus were indicated bilaterally. No other pertinent findings were noted bilaterally. The use of assistive devices was denied bilaterally. In terms of functional impact, the examiner noted that the Veteran is unable to engage in physical work. The Veteran was afforded a VA examination in June 2019. The examiner noted diagnoses of bilateral shoulder impingement syndrome. The Veteran reported having flare-ups once per month, but denied having functional loss or impairment of the bilateral shoulder. Initial ROM measurements for the right shoulder were recorded as the following: flexion to 110 degrees, abduction from 110 to 180 degrees, external rotation to 70 degrees, and internal rotation to 60 degrees. Measurements for the left shoulder were recorded as the following: flexion to 110 degrees, abduction from 110 to 180 degrees, external rotation to 60 degrees, and internal rotation to 60 degrees. ROM itself was noted not to contribute to a functional loss bilaterally. Pain was noted on flexion and abduction bilaterally, but was noted not to contribute to a functional loss bilaterally. Evidence of pain with weight bearing was denied bilaterally. Objective evidence of localized tenderness or pain on palpation was denied bilaterally. Objective evidence of crepitus was denied bilaterally. Observed repetitive use testing was not performed. However, no additional loss of function or ROM was noted bilaterally. Repeated use over time testing was not performed. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time bilaterally. The examination was not conducted during a flare-up. However, the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with flare-ups. No additional factors contributing to the Veteran’s condition were noted. Muscle strength testing revealed normal strength on all movements tested bilaterally, five out of five. Muscle atrophy was denied bilaterally. Ankylosis was denied bilaterally. In terms of the bilateral rotator cuff condition, the examiner noted that testing showed negative results on all tests, but for a positive result for the left shoulder on the Hawkins’ Impingement Test. Shoulder instability, dislocation or labral pathology was denied bilaterally. No clavicle, scapula, AC joint, or sternoclavicular joint conditions were noted or suspected bilaterally. No conditions or impairments of the humerus were indicated bilaterally. No other pertinent findings were noted bilaterally. The use of assistive devices was denied bilaterally. In terms of functional impact, the examiner noted that the Veteran’s condition does not impact his ability to work. The examiner remarked that the Veteran does not have pain on passive ROM during non-weight bearing. Flare-ups, which were reported to occur once monthly, were noted to cause a 10 percent reduction in ROM. The Veteran was afforded a VA examination in December 2020. The Veteran reported flare-ups bilaterally, which cause severe pain, ten out of ten, that occur a few times per week. The Veteran also reported having functional loss or impairment in the form of limited tolerance for performing activities that involve reaching overhead and lifting heavy loads, using either arm. Initial ROM measurements for both shoulders were recorded as the following: flexion to 110 degrees, abduction to 110 degrees, external rotation to 90 degrees, and internal rotation to 60 degrees. The examiner noted that ROM itself contributes to a functional loss bilaterally in that the Veteran could have problems performing tasks that involve reaching overhead with his arms. Pain was noted on flexion, abduction, and internal rotation bilaterally, but was noted not to contribute to a functional loss. Evidence of pain with weight bearing was denied bilaterally. Objective evidence of localized tenderness or pain on palpation was denied bilaterally. Objective evidence of crepitus was denied bilaterally. Observed repetitive use testing was not performed. However, no additional loss of function or ROM was noted bilaterally. Repeated use over time testing was not performed. However, the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over time bilaterally. The examination was not conducted during a flare-up. However, the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with flare-ups. No additional factors contributing to the Veteran’s condition were noted bilaterally. Muscle strength testing revealed normal strength on all movements tested bilaterally, five out of five. Muscle atrophy was denied bilaterally. Ankylosis was denied bilaterally. In terms of the bilateral rotator cuff condition, the examiner noted that testing showed negative results on all tests, but for a positive result bilaterally on the Hawkins’ Impingement Test. Shoulder instability, dislocation or labral pathology was not suspected bilaterally. No clavicle, scapula, AC joint, or sternoclavicular joint conditions were noted or suspected bilaterally. No conditions or impairments of the humerus were indicated bilaterally. No other pertinent findings were noted bilaterally. The use of assistive devices was denied bilaterally. In terms of functional impact, the examiner noted that the Veteran’s condition impacts his ability to work. In particular, the examiner stated that the Veteran could have problems in an occupational setting performing duties that require strenuous physical work such as lifting, pushing, and pulling heavy loads, or performing overhead work. However, the examiner stated that the Veteran can tolerate other types of work that fall in the light to medium duty ranges of physical demand. The examiner remarked that subjective reports of pain were noted on passive and active ROM bilaterally between 75 and 110 degrees of flexion, between 75 and 110 degrees of abduction, and between 45 and 60 degrees of internal rotation. Guarding, resistance, and reports of pain were noted bilaterally during passive mobilization past 110 degrees of flexion, past 110 degrees of abduction, and past 60 degrees of internal rotation. The Veteran was able to perform repetitive use testing with at least three repetitions with no loss of ROM bilaterally, and there is no evidence of pain on non-weight bearing bilaterally. Based on the history taken from the Veteran, review of available records, and current physical examination, the examiner found no basis to report additional loss of function or motion during repetitive use or during a flare-up bilaterally. The Veteran has subjective reports of increased shoulder pain bilaterally over the past one to two years. However, the examiner noted that the Veteran refused evaluation with x-rays during the examination. The Veteran stated that he recently had family members die from cancer and he is reluctant to have any x-rays done at this time. The examiner stated that, other than subjective reports of increased shoulder pain, the Veteran's functional status related to his bilateral shoulder disability is essentially unchanged compared to his June 2019 examination. The examiner stated that the Veteran’s bilateral shoulder disability is of mild severity. The Veteran submitted a private physical therapy screening record in January 2021, dated one week following his December 2020 VA examination. The document contains ROM measurements for both the cervical spine and the bilateral shoulder. The document does not show whether the recorded measurements were initial measurements, observed repetitive use measurements, or repeated use over time measurements. The document indicates that the measurements were collected by a physical therapist with a goniometer and inclinometer. Measurements for the right shoulder were recorded as the following: flexion to 75 degrees, abduction to 75 degrees, external rotation to 34 degrees, and internal rotation to 25 degrees. Measurements for the left shoulder were recorded as the following: flexion to 82 degrees, abduction to 67 degrees, external rotation to 40 degrees, and internal rotation to 25 degrees. Muscle strength on bilateral shoulder flexion and abduction was recorded as three out of five. The Veteran is right-hand dominant. The evidence shows that the Veteran's right and left shoulder disabilities are manifested with pain and limitation of motion. However, the evidence does not show that his right shoulder condition results in limitation of motion to midway between the side and shoulder level (e.g., flexion to 45 degrees), which is required to warrant a 30 percent rating for the major shoulder. The evidence also does not show that his left shoulder condition results in limitation of motion to 25 degrees from the side, which is required to warrant a 30 percent rating for the minor shoulder. Although a single, December 2020 private medical record, shows right shoulder flexion limited to 75 degrees and left shoulder flexion limited to 82 degrees, the remainder of the evidence of record shows that, at worst, the Veteran's bilateral shoulder flexion was limited to 110 degrees. Even considering the December 2020 private treatment record, the evidence still does not support a finding of limitation of motion to midway between the side and shoulder level of the right arm, or limitation of motion to 25 degrees between the side and the shoulder of the left arm, which are required to warrant a 30 percent rating respectively. The Board has considered the effects of the Veteran's symptoms, including pain and functional loss. However, the preponderance of the evidence is against a finding of limitation of motion to midway between the side and shoulder level of the right arm, or limitation of motion to 25 degrees between the side and the shoulder of the left arm, which are required to warrant a 30 percent rating respectively. As discussed above, a single December 2020 private medical record, shows right shoulder flexion to 75 degrees and left shoulder flexion to 82 degrees, with muscle strength of three out of five bilaterally. However, the VA examination results, throughout rest of the appeal period, show that the Veteran had normal muscle strength bilaterally, right shoulder flexion between 110 and 170 degrees, and left shoulder flexion between 110 and 180 degrees. Considering the evidence indicating the Veteran's regular complaints of pain and other findings of functional loss, the evidence does not reflect that such pain and functional limitations resulted in limitation of motion to midway between the side and shoulder level of the right arm, or limitation of motion to 25 degrees between the side and the shoulder of the left arm, which are required to warrant a 30 percent rating respectively. Higher ratings under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria are not approximated in the Veteran's disability picture, throughout the entire period on period. In summary, throughout the entire period on appeal, the evidence does not show that disability ratings greater than 20 percent for the right or left shoulder conditions are warranted. As the preponderance of the evidence is against the claims for higher ratings, the benefit of the doubt doctrine is not for application, and the Veteran's claims for increased ratings are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 3. An initial rating greater than 10 percent for a right ankle disability is denied. 4. An initial rating greater than 10 percent for a left ankle disability is denied. The Veteran contends that his service-connected right and left ankle disabilities are worse than that which is contemplated by his current 10 percent ratings under DC 5271. The preponderance of the evidence is against the claims and the appeal will be denied. Under DC 5271 (ankle, limited motion), marked limitation of motion in the ankle warrants a 20 percent disability rating, and moderate limitation of motion in the ankle warrants a 10 percent disability rating. See 38 C.F.R. § 4.71a, DC 5271. For purposes of VA compensation, normal dorsiflexion of the ankle is zero to 20 degrees and normal ankle plantar flexion is zero to 45 degrees. See 38 C.F.R. § 4.71a, Plate II (2018). The words "moderate" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2018). The Veteran was afforded a VA examination in April 2012. The Veteran reported flare-ups, which cause pain. Initial ROM measurements for the right ankle were recorded as plantar flexion to 30 degrees without evidence of painful motion and dorsiflexion to 10 degrees without evidence of painful motion. Measurements for the left ankle were recorded as plantar flexion to 30 degrees with evidence of painful motion at 30 degrees and dorsiflexion to 10 degrees with evidence of painful motion at 10 degrees. ROM measurements after repetitive use testing for both ankles were recorded as plantar flexion to 30 degrees and dorsiflexion to 10 degrees. The examiner noted that the Veteran does not have additional limitation in ROM of either ankle following repetitive-use testing and the Veteran does not have any functional loss and/or functional impairment of either ankle. Localized tenderness or pain on palpation of the joints or soft tissues of either ankle was denied. Muscle strength testing revealed normal strength bilaterally, five out of five. Joint stability testing revealed no joint instability of either ankle. Ankylosis was denied bilaterally. No additional conditions were noted bilaterally. No joint replacement or other surgical procedures were noted bilaterally. No other pertinent findings were indicated. The use of assistive devices was denied bilaterally. In terms of functional impact, the examiner noted that the right and left ankle conditions do not impact the Veteran’s ability to work. The Veteran was afforded a VA examination in June 2013. The Veteran denied having flare-ups that impact the function of either ankle. Initial ROM measurements for both ankles were recorded as plantar flexion to 40 degrees without evidence of painful motion and dorsiflexion to 20 degrees, or greater, without evidence of painful motion. ROM measurements after repetitive use testing for both ankles were recorded as plantar flexion to 40 degrees and dorsiflexion to 20 degrees, or greater. The examiner noted that the Veteran does not have additional limitation in ROM of either ankle following repetitive-use testing and the Veteran does not have any functional loss and/or functional impairment of either ankle. Localized tenderness or pain on palpation of the joints or soft tissues of either ankle was denied. Muscle strength testing revealed normal strength bilaterally, five out of five. Joint stability testing was negative, but for the right ankle which showed laxity compared with the left ankle. Ankylosis was denied bilaterally. No additional conditions were noted bilaterally. No joint replacement or other surgical procedures were noted bilaterally. No other pertinent findings were indicated. The use of assistive devices was denied bilaterally. In terms of functional impact, the examiner noted that the ankle conditions do not impact the Veteran’s ability to work. The Veteran was afforded a VA examination in January 2017. The examiner noted a diagnosis of bilateral ankle strain. The Veteran denied having flare-ups that impact the function of his ankles and denied having any functional loss or functional impairment of his ankles. Initial ROM measurements for both ankles were recorded as plantar flexion to 45 degrees and dorsiflexion to 20 degrees. Pain was noted bilaterally on plantar flexion, but was noted not to result in a functional loss bilaterally. However, evidence of pain with weight bearing was noted bilaterally. Objective evidence of localized tenderness or pain on palpation was denied bilaterally. Observed repetitive use testing was performed. However, no additional loss of function or ROM was noted bilaterally. Repeated use over time testing was not performed. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time bilaterally. The examination was not conducted during a flare-up. Additional factors contributing to the Veteran’s condition were described as disturbance of locomotion and interference standing bilaterally. Muscle strength testing revealed normal strength on all movements tested bilaterally, five out of five. Muscle atrophy was denied bilaterally. Ankylosis was denied bilaterally. The examiner noted that joint instability or dislocation was not suspected bilaterally. No other conditions were noted, and no surgical procedures were noted. No other pertinent findings were noted. The use of assistive devices was denied bilaterally. In terms of functional impact, the examiner noted that the bilateral ankle condition does not impact the Veteran’s ability to work. The Veteran was afforded a VA examination in June 2019. The examiner noted diagnoses of bilateral ankle lateral collateral ligament sprain and osteoarthritis. The Veteran reported that flare-ups occur once per month. However, he denied having any functional loss or functional impairment of his ankles. Initial ROM measurements for both ankles were recorded as plantar flexion to 45 degrees and dorsiflexion to 10 degrees. ROM itself was noted not to contribute to a functional loss bilaterally. Pain was noted bilaterally on dorsiflexion, but was noted not to result in a functional loss bilaterally. No evidence of pain with weight bearing was noted bilaterally. Objective evidence of localized tenderness or pain on palpation was denied bilaterally. Objective evidence of crepitus was denied bilaterally. Observed repetitive use testing was performed. However, no additional loss of function or ROM was noted bilaterally. Repeated use over time testing was not performed. However, the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over time bilaterally. The examination was not conducted during a flare-up. However, the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with flare-ups bilaterally. No additional factors contributing to the Veteran’s condition were noted bilaterally. Muscle strength testing revealed normal strength on all movements tested bilaterally, five out of five. Muscle atrophy was denied bilaterally. Ankylosis was denied bilaterally. The examiner noted that joint instability or dislocation was suspected bilaterally. However, joint instability testing was negative bilaterally on all tests performed. No other conditions were noted, and no surgical procedures were noted. No other pertinent findings were noted. The use of assistive devices was denied bilaterally. In terms of functional impact, the examiner noted that the bilateral ankle condition does not impact the Veteran’s ability to work. The examiner remarked that there is no pain on passive ROM or during non-weight bearing. However, the examiner stated that during a flare-up, which was reported to occur with a frequency of once monthly, the Veteran has a 10 percent reduction in ROM. In a November 2020 VA addendum opinion, the examiner stated that the Veteran has no pain on passive ROM and no pain on non-weight bearing. The Veteran was afforded a VA examination in December 2020. The Veteran reported flare-ups, which were reported to cause severe pain, ten out of ten, with a frequency of once per week, and are provoked by prolonged standing. The Veteran reported that his flare-ups are alleviated by rest for 20 to 60 minutes and medication. The Veteran reported that he was not experiencing a flare-up at the examination. The Veteran also reported having functional loss or functional impairment of his ankles. Specifically, he reported limited tolerance for performing activities that involve prolonged standing and walking. Initial ROM measurements for both ankles were recorded as plantar flexion to 40 degrees and dorsiflexion to 10 degrees. ROM itself was noted not to contribute to a functional loss bilaterally. Pain was noted bilaterally on plantar flexion and dorsiflexion, but was noted not to result in a functional loss. No evidence of pain with weight bearing was noted bilaterally. Objective evidence of localized tenderness or pain on palpation was denied bilaterally. Objective evidence of crepitus was denied bilaterally. Observed repetitive use testing was performed. However, no additional loss of function or ROM was noted bilaterally. Repeated use over time testing was not performed. However, the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over time bilaterally. The examination was not conducted during a flare-up. However, the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with flare-ups. No additional factors contributing to the Veteran’s condition were noted bilaterally. Muscle strength testing revealed normal strength on all movements tested bilaterally, five out of five. Muscle atrophy was denied bilaterally. Ankylosis was denied bilaterally. The examiner noted that no joint instability or dislocation was suspected bilaterally. No other conditions were noted, and no surgical procedures were noted. No other pertinent findings were noted. The use of assistive devices was denied bilaterally. In terms of functional impact, the examiner noted that the bilateral ankle condition does not impact the Veteran’s ability to work. The examiner remarked that there were subjective reports of pain on passive and active ROM of the right ankle joint between 5 and 10 degrees of dorsiflexion and between 30 and 40 degrees of plantar flexion. There were subjective reports of milder pain of the left ankle, compared to the right ankle, which was noted on passive and active ROM of the contralateral joint between 5 and 10 degrees of dorsiflexion and between 35 and 40 degrees of plantar flexion. The examiner noted guarding, resistance, and reports of increased pain bilaterally during passive mobilization past 10 degrees of dorsiflexion and past 40 degrees of plantar flexion. The Veteran was able to perform repetitive use testing with at least three repetitions with no loss of ROM in either ankle joint. The examiner noted that there is no evidence of pain in either ankle joint during non-weight bearing. Based on the history taken from the Veteran, review of available records, and current physical examination, the examiner stated that there is no basis to report additional loss of function or motion on repetitive use or during a flare-up bilaterally. The Veteran has subjectively reported increased pain bilaterally over the past year. However, as noted above, in the other December 2020 VA examination, the Veteran refused evaluation with x-ray during the examination, stating his reluctance to have any x-rays done due to fear of potential negative consequences. The examiner stated that, other than subjective reports of increased ankle pain, the Veteran's functional status related to his bilateral ankle disability is essentially unchanged compared to his bilateral ankle condition when examined in June 2019. Finally, the examiner stated that the Veteran has a bilateral ankle condition of mild severity. After a full review of the record, higher ratings under DC 5271 are not warranted. The preponderance of the evidence is against a finding of symptomatology and functional impairment warranting a 20 percent rating for "marked" limitation of right and left ankle motion. Throughout the entire appeal period, the Veteran has had normal muscle strength bilaterally. Although the Veteran has pain and weakness in his right and left ankle, ROM was, at worst, limited to 30 degrees on plantar flexion bilaterally and, at worst, limited to 10 degrees on dorsiflexion bilaterally, which does not qualify for a "marked" limitation of motion under DC 5271. Instead, the evidence shows that the limitation of each ankle is best characterized as moderate disability as opposed to marked. This represents 50 percent or greater motion in each plane, which while disabling is not markedly disabling. Ankylosis is not present bilaterally. Given the above, higher ratings are not warranted. There is no further evidence to the contrary. After considering the evidence of record, throughout the entire period on appeal, the Veteran's symptoms bilaterally more closely reflect the criteria for a 10 percent disability rating bilaterally when considering the objective evidence of pain and functional limitation with his dorsiflexion and plantar flexion ROM. Therefore, throughout the entire period on appeal, entitlement to disability ratings greater than 10 percent for his right and left ankle disabilities are not warranted. As the preponderance of the evidence is against the claims for higher ratings, throughout the entire period on appeal, the benefit of the doubt doctrine is not for application, and the Veteran's claims for increased ratings are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 5. An initial rating greater than 20 percent for a cervical spine disability is denied. The Veteran contends that his service-connected cervical spine disability is worse than that which is contemplated by his current 20 percent rating under DC 5243. The preponderance of the evidence is against the claim and the claim will be denied. Spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Degenerative arthritis of the spine is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating. Under the General Rating Formula, a 20 percent rating is warranted when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted when forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). A zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran was afforded a VA examination in December 2014. A diagnosis of degenerative disc disease of the cervical spine was noted. The Veteran denied having both flare-ups and functional loss or impairment of the cervical spine. Initial ROM measurements were recorded as follows: flexion to 20 degrees, extension to 25 degrees, bilateral flexion to 10 degrees, and bilateral rotation to 40 degrees. ROM itself was noted to contribute to a functional loss. Pain was noted on all movements on examination, but was noted not to cause a functional loss. Objective evidence of pain with weight bearing was denied. No objective evidence of localized tenderness or pain on palpation was noted. Observed repetitive use testing was performed. However, no additional loss of function or ROM was noted. Repeated use over time testing was performed. However, the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over time. The examination was not conducted during a flare-up. The examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with flare-ups. Additional factors contributing to the Veteran’s condition were described as difficulty in moving the neck in any direction. Muscle strength testing revealed normal strength on all movements tested, five out of five. Muscle atrophy was denied. A reflex examination revealed hyperactive reflexes without clonus on all areas tested. A sensory examination revealed normal results on all areas tested. Radicular pain or any other signs or symptoms due to radiculopathy were denied. Ankylosis was denied. No other neurologic abnormalities were noted. IVDS was denied. The use of assistive devices was denied. Available imaging studies were noted to show arthritis. In terms of functional impact, the examiner noted that the Veteran is unable to engage in heavy lifting. The Veteran was afforded a VA examination in January 2017. The Veteran denied having both flare-ups and functional loss or impairment of the cervical spine. Initial ROM measurements were recorded as follows: flexion to 35 degrees, extension to 35 degrees, bilateral flexion to 30 degrees, right lateral rotation to 50 degrees, and left lateral rotation to 80 degrees. ROM itself was noted to contribute to a functional loss due to pain and stiffness on bending. Pain and stiffness on bending was noted on all movements, and was noted to cause a functional loss. Objective evidence of localized tenderness or pain on palpation was denied. Observed repetitive use testing was performed. However, no additional loss of function or ROM was noted. Repeated use over time testing was not performed. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time. The examination was not conducted during a flare-up. The examiner noted that the Veteran does not have guarding or muscle spasm of the cervical spine. Additional factors contributing to the Veteran’s condition were described as interference with sitting and standing. Muscle strength testing revealed normal strength on all movements tested, five out of five. Muscle atrophy was denied. A reflex examination revealed hyperactive reflexes without clonus on all areas tested. A sensory examination revealed normal results on all areas tested. Radicular pain or any other signs or symptoms due to radiculopathy were denied. Ankylosis was denied. No other neurologic abnormalities were noted. IVDS was denied. No other pertinent findings were indicated. The use of assistive devices was denied. Available imaging studies were noted to show arthritis. In terms of functional impact, the examiner noted that the Veteran is unable to engage in physical work. The Veteran was afforded a VA examination in June 2019. A diagnosis of IVDS was noted. The Veteran reported that flare-ups occur once per month. Initial ROM measurements were recorded as follows: flexion to 30 degrees, extension to 10 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 50 degrees. Pain was noted on flexion, extension, and bilateral rotation, but was noted not to cause a functional loss. Objective evidence of pain on weight bearing was denied. Objective evidence of localized tenderness or pain on palpation was denied. Observed repetitive use testing was performed. However, no additional loss of function or ROM was noted. Repeated use over time testing was not performed. However, the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over time. The examination was not conducted during a flare-up. However, the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with flare-ups. The examiner noted that the Veteran has guarding, but that it does not result in abnormal gait or spinal contour. No additional factors contributing to the Veteran’s condition were noted. Muscle strength testing revealed normal strength on all movements tested, five out of five. Muscle atrophy was not indicated. A reflex examination revealed hyperactive reflexes without clonus on all areas tested. A sensory examination revealed normal results on all areas tested. Mild intermittent pain of the bilateral upper extremity was noted to involve the C-5/C-6 nerve roots. Ankylosis was denied. No other neurologic abnormalities were noted. IVDS was noted, but the examiner also noted that the Veteran has not had any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The use of assistive devices was denied. In terms of functional impact, the examiner noted that the Veteran’s condition does not impact his ability to work. The examiner remarked that there is no pain on passive ROM or during non-weight bearing. However, the examiner stated that during a flare-up, which was reported to occur with a frequency of once monthly, the Veteran has a 10 percent reduction in ROM. In January 2021, the Veteran submitted a private physical therapy screening record, and two private chiropractic letters, all dated October 2019. The October 2019 private physical therapy screening record contains ROM measurements, taken by physical therapist. Pain at rest was noted as zero out of ten, and nine out of ten during activity. The record indicates that a goniometer was used to measure the recorded ROM measurements. However, it is unclear whether the measurements were initial measurements, observed repetitive use measurements, or repeated use over a period measurement. Measurements were recorded as follows: flexion to 8 degrees, extension to 25 degrees, right lateral flexion to 10 degrees, left lateral flexion to 11 degrees, right lateral rotation to 28 degrees, and left lateral rotation to 27 degrees. Muscle strength was noted as four out of five on all movements tested. It was also noted that the Veteran has weakness in his bilateral upper extremities. The initial October 2019 private chiropractic letter indicates that the Veteran was evaluated on the same day that the letter was written. The letter indicates that the purpose of the office visit was the Veteran’s chief complaint of cervical spine pain and to obtain ROM findings. It was noted that an inclinometer and goniometer were used to measure the recorded ROM measurements, recorded by Dr. V.B., the chiropractor who signed the letter. Measurements were recorded as follows: flexion to 5 degrees, extension to 15 degrees, right lateral flexion to 5 degrees, left lateral flexion to 15 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. The letter contains no other information or analysis. The second October 2019 private chiropractic letter, written approximately three weeks following the first, indicates that the Veteran was evaluated on the same day that the letter was written. The letter indicates that the purpose of the office visit was the Veteran’s chief complaint of cervical spine pain and to obtain ROM findings. It was noted that an inclinometer and goniometer were used to measure the recorded ROM measurements, recorded by Dr. M.H., the chiropractor who signed the letter. Measurements were recorded as follows: flexion to 15 degrees, extension to 20 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees. The letter contains no other information or analysis. In a November 2020 VA addendum opinion, the examiner stated that the Veteran has no pain on passive ROM and no pain on non-weight bearing. The Veteran was afforded a VA examination in December 2020. The Veteran reported flare-ups that cause severe pain, ten out of ten, and which occur on a weekly basis. The Veteran also reported having functional loss or impairment in the form of limited tolerance for performing activities that involve abrupt turning movements of the head and neck and lifting loads weighing greater than 10 pounds. Initial ROM measurements were recorded as follows: flexion to 25 degrees, extension to 20 degrees, bilateral flexion to 20 degrees, right lateral rotation to 45 degrees, and left lateral rotation to 40 degrees. ROM itself was noted not to contribute to a functional loss. Pain was noted on all movements, but was noted not to cause a functional loss. Objective evidence of pain on weight bearing was denied. Objective evidence of localized tenderness or pain on palpation was denied. Observed repetitive use testing was performed. However, no additional loss of function or ROM was noted. Repeated use over time testing was not performed. However, the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over time. The examination was not conducted during a flare-up. However, the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with flare-ups. The examiner noted that the Veteran has guarding, but that it does not result in abnormal gait or spinal contour. No additional factors contributing to the Veteran’s condition were noted. Muscle strength testing revealed normal strength on all movements tested, five out of five. Muscle atrophy was not indicated. A reflex examination revealed hyperactive reflexes without clonus on all areas tested. A sensory examination revealed normal results on all areas tested. No radicular pain or any other signs or symptoms due to radiculopathy were noted. Ankylosis was denied. No other neurologic abnormalities were noted. IVDS was denied. The occasional use of a cervical collar while sleeping, used to alleviate pain, was noted. No other pertinent findings were indicated. The examiner noted that the Veteran’s condition impacts his ability to work in that the Veteran could have problems in an occupational setting performing duties that involve strenuous physical work, such as lifting, pushing, or pulling heaving loads, or performing overhead work. However, the examiner stated that the Veteran can tolerate sedentary to light duty. The examiner noted the Veteran reported pain on passive and active ROM between 15 and 25 degrees of forward flexion, between 15 and 20 degrees of extension, between 10 and 20 degrees of bilateral bending, between 30 and 40 degrees of left rotation, and between 30 and 45 degrees of right rotation. The examiner noted guarding, resistance, and reports of pain during passive mobilization past 25 degrees of forward flexion, past 20 degrees of extension, past 20 degrees of bilateral bending, past 40 degrees of left rotation, and past 45 degrees of right rotation. The Veteran was able to perform repetitive use testing with at least three repetitions with no loss of ROM. No evidence of pain on non-weight bearing was noted. Based on the history taken from the Veteran, review of available records, and current physical examination, the examiner found no basis to offer additional loss of function or motion on repetitive use or during a flare-up. The Veteran has subjectively reported increased pain over the past year. However, as noted above in the other December 2020 VA examinations, the Veteran refused evaluation with x-ray during the examination, stating his reluctance to have any x-rays done due to fear of potential negative consequences. The examiner stated that, other than subjective reports of increased pain and slight reduction ROM, the Veteran's functional status related to his cervical spine disability is essentially unchanged compared to the June 2019 examination. As discussed above, the Veteran submitted a private physical therapy screening record in January 2021, dated one week following his December 2020 VA examination. The document indicates reported pain of two out of ten when at rest, and ten out of ten during activity. The document contains ROM measurements for the cervical spine. However, as noted above, the document does not show whether the recorded measurements, taken by a physical therapist, were initial measurements, observed repetitive use measurements, or repeated use over time measurements. The document indicates that the measurements were collected with a goniometer and inclinometer. Measurements were recorded as follows: flexion to 8 degrees, extension to 20 degrees, right lateral flexion to 18 degrees, left lateral flexion to 20 degrees, right lateral rotation to 22 degrees, and left lateral rotation to 26 degrees. IVDS was endorsed in the June 2019 VA examination. However, the examiner noted that the Veteran has not had any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. IVDS is consistently denied elsewhere in the record. As the evidence does not show IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, requiring bed rest prescribed by a physician and treatment by a physician, a higher rating is not warranted under the criteria for IVDS at any time during the period on appeal. As discussed above, in January 2021, the Veteran submitted two private physical therapy screening records, dated October 2019 and December 2020, and two private chiropractic letters, both from October 2019. The October 2019 and December 2020 private physical therapy screening records show that the Veteran had flexion limited to 8 degrees. The October 2019 private chiropractic letters show that the Veteran had flexion limited to 5 degrees on the first, and 15 degrees on the second. The record shows that ROM measurements regarding the Veteran’s limitation of flexion on VA examinations and private evaluations are wildly divergent. The December 2014 VA examination shows flexion limited to 20 degrees. Approximately two years later, the January 2017 VA examination shows flexion limited to 35 degrees. Approximately two and a half years later, the June 2019 VA examination shows flexion limited to 30 degrees. Less than six months later, three October 2019 private medical records show flexion to 5, degrees, 8 degrees, and 15 degrees. A little more than a year later, in the December 2020 VA examination, flexion was recorded as limited to 25 degrees. The December 2020 VA examiner noted reported pain on passive and active ROM between 15 and 25 degrees of forward flexion, and the examiner noted guarding, resistance, and reports of pain during passive mobilization past 25 degrees of forward flexion. Finally, a private medical record, dated one week following the December 2020 VA examination, shows flexion limited to 8 degrees. Upon review of the record, it appears that the Veteran may have had short periods of time when his forward flexion was further reduced compared to his limitation of flexion as demonstrated elsewhere in the record. However, reviewed in totality, throughout the entire period on appeal, the evidence does not warrant a rating higher than 20 percent. Although, the record indicates that the Veteran may have had further reduction in forward flexion during short periods of time during the period on appeal, the preponderance of the record most consistently demonstrates that the Veteran had forward flexion limited to no more than 20 degrees with pain at no more than 15 degrees, without ankylosis, even considering pain and stiffness. Therefore, throughout the period on appeal, a higher 30 percent rating, is not warranted for the Veteran's cervical spine disorder. Throughout the entire period on appeal, the preponderance of the evidence most consistently demonstrates that an initial increased rating greater than 20 percent for the Veteran's cervical spine disorder is not warranted. As the preponderance of the evidence is against the claim for a higher rating, throughout the entire period on appeal, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 6. Entitlement to an effective date, prior to April 1, 2012, for the award of basic eligibility for DEA, is denied. The Veteran contends that he is entitled to an effective date, prior to April 1, 2012, for the award of basic eligibility for Dependents' Educational Assistance. Basic eligibility for certification of Dependents' Educational Assistance exists if the veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. The March 2017 rating decision granted basic eligibility for DEA benefits, effective September 1, 2012, based upon permanent and total disability. In a December 2020 rating decision, a clerical error was found in the March 2017 rating decision, which failed to contemplate the bilateral factor identifier regarding the grant of service connection for bilateral plantar fasciitis and resulted in an under-evaluation of the Veteran’s combined overall disability rating. Consequently, the December 2020 rating decision granted a new effective date of April 1, 2012. The new effective date of April 1, 2012 represents the earliest date from which the Veteran was assigned a combined evaluation of 100 percent. Therefore, the Veteran’s current effective date of April 1, 2012 is the earliest possible date that he is eligible for DEA benefits and an earlier effective date is not warranted for the award of entitlement to DEA benefits pursuant to Chapter 35. The claim must be denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.