Citation Nr: 21025675 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-23 339 DATE: April 28, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for spondylosis of the lumbar spine (hereinafter “lumbar spine disability”) is denied. Entitlement to a separate 20 percent disability rating, but no higher, for radiculopathy of the right lower extremity (femoral nerve), under Diagnostic Code 8526, effective August 15, 2020, is granted. An initial 20 percent disability rating for degenerative joint disease (DJD) of the right metatarsophalangeal of the right foot with hallux valgus deformity and plantar calcaneal spur is granted. An initial 20 percent disability rating for degenerative joint disease of the left metatarsophalangeal of the foot with hallux valgus deformity is granted. A total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability has been manifested by forward flexion greater than 60 degrees; a combined range of motion greater than 120 degrees; and without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. Effective August 15, 2020, the Veteran's lumbar spine disability was additionally manifested by radiculopathy of the right lower extremity (femoral nerve) that was no more than moderate in nature. 3. The Veteran's right foot disability more nearly approximates moderately-severe symptoms including limited to no movement of the 1st MTP joint, worsening pain, pain on movement, pain on weight-bearing, swelling, stiffness, fatigability, lack of endurance, and interference with standing/walking; the evidence does not however show a disability picture manifested by severe symptoms. 4. The Veteran's left foot disability more nearly approximates moderately-severe symptoms including limited to no movement of the 1st MTP joint, worsening pain, pain on movement, pain on weight-bearing, swelling, stiffness, fatigability, lack of endurance, and interference with standing/walking; the evidence does not however show a disability picture manifested by severe symptoms. 5. Prior to June 28, 2013, the Veteran was substantially gainfully employed. 6. From January 16, 2013, to March 1, 2014, the Veteran has been in receipt of special monthly compensation to U.S.C. § 1114(s) on account of a single service-connected disability rated as 100 percent and additional service-connected disability or disabilities independently ratable at 60 percent. 7. Since March 1, 2014, the Veteran has been in receipt of a 100 percent combined rating based on multiple service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for the lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.71a, Diagnostic Code 5242-5237 (2020). 2. The criteria for an initial 20 percent disability rating for right lower extremity radiculopathy (femoral nerve) associated with the lumbar spine disability are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a , Diagnostic Code 8526 (2020). 3. The criteria for an initial 20 percent disability for degenerative joint disease of the right metatarsophalangeal of the right foot with hallux valgus deformity and plantar calcaneal spur, are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3 , 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5283 (2020). 4. The criteria for an initial 20 percent disability for degenerative joint disease of the left metatarsophalangeal of the foot with hallux valgus deformity are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3 , 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5283 (2020). 5. The criteria for a TDIU have not been met for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1968. These matters come before the Board on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which granted service connection for the lumbar spine disability and assigned an initial 10 percent disability rating effective from January 11, 2011; granted service connection for the right foot disability and assigned an initial 10 percent disability rating effective from March 2, 2009; and granted service connection for the left foot disability and assigned an initial 10 percent disability rating effective from March 2, 2009. The Veteran testified before the undersigned Veterans Law Judge at a virtual hearing in March 2021; a transcript is of record. The Board notes that the record includes August 2020 VA foot and spine examinations. In November 2020, the Veteran waived consideration of all evidence added to the record since the last Statement of the Case. Increased Ratings, Generally Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Entitlement to an initial rating in excess of 10 percent for the lumbar spine disability is denied. The Veteran's lumbar spondylosis with degenerative arthritis is evaluated as 10 percent disabling throughout the initial appeal period under Diagnostic Code 5242-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that the service-connected disability of degenerative arthritis of the spine (Diagnostic Code 5242) is rated based on a lumbosacral strain (Diagnostic Code 5237). VA regulations provide that spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based (IVDS) on Incapacitating Episodes, under Diagnostic Code 5243, whichever would result in a higher rating.38C.F.R. §4.71a. Diagnostic Code 5243 provides evaluations for intervertebral disc syndrome (IVDS) based on the frequency of incapacitating episodes. A 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is available for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is available with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is available with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. Since February 7, 2021, Diagnostic Code 5243 only applies when there is disc herniation with compression and/or irritation of the adjacent nerve root. The General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides the following: A 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is evidence of muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The current spine rating criteria instructs the Board to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See 38C.F.R. §4.71a, Note (1). For the thoracolumbar spine, normal range of motion on forward flexion is zero to 90 degrees; backwards extension, zero to 30 degrees; left and right lateral flexion, zero to 30 degrees; and, left and right lateral rotation, zero to 30 degrees. See 38C.F.R. §4.71a, Note (2)(see also Plate V). Factual Background Private treatment records dated in September 2010 reflect complaints of low back pain, on and off for year, that was aggravated by stooping and bending. His gait was normal. He was able to bend to touch halfway between ankles and knees. Pain worsened with extension, side bending, and rotation. Motor examination was 5/5 throughout. Deep tendon reflexes (DTRs) were +2 throughout, except patella right which was +1. Sensory examination was normal. The assessment was episodic lower back pain, coinciding with treatment and left hip replacement. Private treatment records dates in November 2010 reflect that the lumbar spine pain had remained the same. He was able to bend to ankle level, and pain was not worsened with forward flexion, extension, side bending, or rotation. Motor examination was 5/5 throughout. DTRs were +1. Sensory examination was normal. The Veteran underwent a VA spine examination in June 2011. He reported back pain with lifting, bending, and carrying. Treatment included Meloxicam and Flexeril. There was a history of fatigue, decreased motion, stiffness, weakness, spasm, and mild, daily spine pain. There was no radiation of pain. Range of motion was as follows: forward flexion was from 0 to 80 degrees; extension was from 0 to 20 degrees; left lateral flexion was from 0 to 25 degrees; left lateral rotation was from 0 to 30 degrees; right lateral flexion was from 0 to 25 degrees; and right lateral rotation was from 0 to 30 degrees. There was no objective evidence of painful motion and no additional objective evidence of pain or limitation of motion following repetition. DTRs ranged from +1 to +2. Sensory examination was normal. Motor examination was 5/5 throughout. There were no episodes of incapacitating spine disease. Posture was normal and there were no abnormal spinal curvatures. There was no ankylosis. There was objective evidence of spasm. Spasms, localized tenderness, or guarding were not severe enough to be responsible for abnormal gait or abnormal spinal contour. X-rays of the lumbar spine revealed mild to moderate degenerative changes. The Veteran was currently employed fulltime as a warehouse manager. Private treatment records dated in July and August 2013 reflect that the Veteran’s back pain had improved and was described as very mild. He stated that he was unable to walk more than 1 mile or sit in chair for more than one hour. There was mild pain in his back buttock or leg, but no numbness or tingling in legs or feet. He was able to bend to touch halfway between ankles and knees. Motor strength was 5/5; sensation normal; and DTRs were 2+ throughout. Lumbar pain worsened with forward flexion and extension. The assessment was low back pain for several years, non-radiation. Pain limited his ability to walk or stand for significant periods and also limited his golf. His pain at rest was 2/10. The Veteran underwent a VA examination in April 2015. He reported flare-ups/functional loss with overuse of the back, such as excess lifting or bending. Active range of motion of the lumbar spine was as follows: flexion was from 0 to 65 degrees; extension was from 0 to 20 degrees; left lateral flexion was from 0 to 15 degrees; left lateral rotation was from 0 to 15 degrees; right lateral flexion was from 0 to 20 degrees; and right lateral rotation was from 0 to 20 degrees. No pain was noted on examination. There was no evidence of pain with weight-bearing. He was able to perform repetitive use testing without additional loss of function or range of motion after three repetitions. There was no muscle spasm or guarding. Muscle strength testing was 5/5 throughout. DTRs in the knees were absent and 1+ in the ankles. Sensory examination was normal. There was no radiculopathy or any other neurologic abnormalities. There was no IVDS. The Veteran did not use an assistive device. The examiner noted that the Veteran could not perform a job requiring excess bending or lifting. The Veteran underwent a VA examination in August 2020. He reported constant back pain with radiation into the right leg. Treatment included back injections, Gabapentin, Meloxicam, and Flexeril. He reported flare-ups after sitting for prolonged periods of time (after 15 to 20 minutes). Functional impairment was described as hard to sit for a long time, or walk far without difficulty. Flexion was from 0 to 68 degrees; extension was from 0 to 22 degrees; left lateral flexion was from 0 to 22 degrees; left lateral rotation was from 0 to 24 degrees; right lateral flexion was from 0 to 24 degrees; and right lateral rotation was from 0 to 22 degrees. Pain was noted on examination and resulted in a functional loss in all planes of motion. There was evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. There was evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. There was no guarding or muscle spasm of the thoracolumbar spine. The examiner stated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time. In terms of range of motion, it was described as follows: Flexion was from 0 to 65 degrees; extension was from 0 to 20 degrees; left lateral flexion was from 0 to 20 degrees; left lateral rotation was from 0 to 20 degrees; right lateral flexion was from 0 to 20 degrees; and right lateral rotation was from 0 to 20 degrees. The examiner stated that the examination was medically consistent with the Veteran's statements describing flare-ups. Pain, weakness, fatigability, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time. In terms of range of motion, it was described as follows: Flexion was from 0 to 65 degrees; extension was from 0 to 20 degrees; left lateral flexion was from 0 to 20 degrees; left lateral rotation was from 0 to 20 degrees; right lateral flexion was from 0 to 20 degrees; and right lateral rotation was from 0 to 20 degrees. Additional contributing factors included less movement than normal, weakened movement, interference with sitting, standing, and walking (described as “decreases ability to walk, stand and sit too long or for pro long periods of time”). Muscle strength testing ranged from 4/5 (right hip flexion and knee extension) to 5/5. Reflex examination ranged from +1 (right knee) to +2. Sensory examination was normal. Straight leg testing was positive on the right. There was moderate constant pain and numbness in the right lower extremity. There was involvement of the right femoral nerve which was described as moderate in nature. The left side was not affected. There was no ankylosis. There was no IVDS. The Veteran used a cane. The disability affected his ability to work to the extent that the impact of decreased range of motion would make it difficult to complete task such as walking, standing or even sitting at a desk for a prolong period of time. With respect to Correia, there was no objective evidence of pain with non weight-bearing. Passive range of motion was the same as active. Analysis Upon review of all the evidence of record, lay and medical, the Board finds that the criteria for a rating in excess of 10 percent has not been met for any portion of the initial rating period on appeal. Specifically, forward flexion of the thoracolumbar spine has been limited to, at worst, 65 degrees and the combined range of motion of the thoracolumbar spine has been greater than 120 degrees throughout the entire appeal period. See 2011, 2015, and 2020 VA spine examination reports. On private examination, specific ranges of motion were not provided; however, the physician stated that the Veteran was able to bend, or forward flex, to halfway between the ankles and knees, i.e., greater than 60 degrees of forward flexion. There is also no objective evidence of muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour or ankylosis. See VA 2011, 2015, and 2020 VA Examination Reports. The Board has considered whether the Veteran is entitled to a higher rating due to functional impairment under the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 206-07. However, even considering the lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 60 degrees or less. In this regard, on VA examination in 2011, 2015, and 2020, the Veteran was able to perform repetitive use testing with no objective of evidence of pain and/or additional limitation of motion; on VA examination in 2011 and 2015, there was no objective evidence of painful motion whatsoever. While the Veteran endorsed flare-ups and functional loss due to repeated use over time, the 2020 VA examiner expressly found that these factors would limit flexion to no more than 65 degrees with a combined range of motion of the thoracolumbar spine that well exceeded 120 degrees. It is also important to note that there is no evidence of atrophy, which would be indicative of disuse, and muscle strength remained largely normal (i.e., 5/5 and 4/5, at worst) throughout the appeal period. Based on the objective medical evidence of record, there is no basis for the assignment of a higher rating pursuant to 38 C.F.R. §§ 4.40 and 4.45. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, radiculopathy of the lower extremities is addressed below. With regard to any bowel and bladder impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Thus, there is no basis for assignment of separate ratings for bowel or bladder impairment. For these reasons, the Board finds that the preponderance of the evidence is against the assignment of an initial disability evaluation in excess of 10 percent for the lumbar spine disability. 2. Entitlement to a separate evaluation for right lower extremity radiculopathy(femoral) is granted. The General Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Note (1), provides that objective neurologic abnormalities associated with a back disability are to be rated separately from the back disability. Under 38 C.F.R. § 4.124a, Diagnostic Code 8526 (femoral nerve impairment), mild incomplete paralysis warrants a 10 percent rating. Moderate incomplete paralysis warrants a 20 percent rating. Severe incomplete paralysis warrants a 30 percent rating. Complete femoral nerve paralysis warrants the assignment of a 40 percent rating and contemplates paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a, Diagnostic Code 8526. The Board finds that a separate 20 percent rating is warranted for moderate incomplete paralysis of the right femoral nerve, effective August 15, 2020, based on the earliest documentation of right lower extremity radiculopathy affecting such nerve. Indeed, the VA spine examination of the same date reflected that there was moderate constant pain and numbness in the right lower extremity and involvement of the right femoral nerve which was described as moderate radiculopathy. A rating in excess of 20 percent is not warranted because the evidence does not show severe incomplete paralysis. There is no evidence of muscle atrophy or trophic changes, and, at worst, the Veteran's knee strength was 4/5 and knee reflexes were hypoactive. Again, the most recent VA examination has documented the femoral nerve paralysis as moderate and incomplete. Accordingly, a rating in excess of 20 percent is not warranted for radiculopathy involving the femoral nerve. There are no other associated neurologic abnormalities shown by the medical record. 3. An initial 20 percent disability rating for degenerative joint disease of the right metatarsophalangeal of the right foot with hallux valgus deformity and plantar calcaneal spur is granted. 4. An initial 20 percent disability rating for degenerative joint disease of the left metatarsophalangeal of the foot with hallux valgus deformity is granted. The pertinent medical evidence of record consists of private treatment records, VA examination reports, and hearing testimony. A private January 2009 treatment record reflects complains of pain in the bilateral great toes. A previous diagnosis of hallux rigidus was noted. Any activity exacerbated his symptoms. He had difficulty ambulating without shoes on. On examination, weightbearing showed a severe dorsal over the bilateral MTP joints. He had decreased motion of the bilateral hallux MTP joint. Dorsiflexion was 15 degrees on the right, compared to 30 degrees on the left. Plantar flexion was 5 degrees on the right, compared to 20 degrees on the left. He had no motor sensory defects. He ambulated with a slightly antalgic gait pattern. X-rays showed severe degenerative changes at the hallux MTP joint on the right (lesser on the left) and a very large dorsal osteophyte. He essentially had no joint space remaining. There was a mild hallux deformity on the left. The impression was symptomatic bilateral hallux rigidus, greater right than left. It was noted that the Veteran’s symptoms had progressed to the point where they were significantly affecting his activities of daily living. Surgical options were discussed. The Veteran underwent a VA foot examination in September 2009. He endorsed constant pain in both feet that increased with activity. There was pain, swelling, stiffness, fatigability, weakness, and lack of endurance of the 1st MTP joints, bilaterally. He endorsed flare-ups, 1 to 2 times per week, lasting less than a day, exacerbated with activity and improved with rest, heat, and medications. Functional impairment included inability to accomplish routine chores and activities, as well as avoidance of walking/stairs at work. He used orthotic inserts with poor efficacy. Physical examination of the left foot revealed painful motion and tenderness of the 1st MTP joint with dorsiflexion and plantar flexion. There was pain on dorsiflexion at 0 to 40 degrees and on plantar flexion at 0 to 20 degrees and no change with repetitive movement. Physical examination of the right foot revealed painful motion and tenderness of the 1st MTP joint with dorsiflexion and plantar flexion. There was pain on dorsiflexion at 0 to 30 degrees and on plantar flexion at 0 to 10 degrees and no change with repetitive movement. X-rays showed severe osteoarthritis of the right big toe metatarsophalangeal joint, with markedly hypertrophic spurs to the superior aspect, moderate right plantar calcaneal spur, and mild left 1st metatarsophalangeal arthritis. The assessment was: (1) DJD of the bilateral MTP of the foot; (2) bilateral hallux valgus deformities; and (3) right plantar calcaneal spur, asymptomatic. Private treatment records dated in January 2010 reflect x-ray findings of significant joint space narrowing on the right, with arthritic changes to the metatarsal head at the level of the 1st MTP joint and significant large dorsal osteophytes. On the left there was prominent medial eminence with smaller dorsal osteophytes and lesser joint space narrowing. In regard to the toes the Veteran stated that the right was still greater than the left and had progressively worsened and limited his activities, such as playing golf, and he was unable to push off and wear any dress shoes secondary to the toe. Private treatment records dated in August 2010 reflect exceedingly large osteophytes over the dorsum of the right 1st MTP, and very little motion (maybe 10 degrees of dorsiflexion and 5 degrees of plantar flexion) with the extremes of motion reproducing his pain. He had less involvement on the left side with slightly better motion. The physician stated that he was a candidate for arthrodesis given his loss of motion, although this would permanently limit the motion within the joint, with the intent of improving pain. Private treatment records dated in September 2015 note continued right foot complaints, specifically, of the great right toe, which limited activities. He tried non-operative modalities, as well as shoe wear modification (i.e., he has to buy bigger shoes in order to accommodate his large dorsal osteophyte with regard to his 1st MTP joint). Examination of the right lower extremity demonstrated visible large osteophyte, 1st MTP, which was tender to palpation. He had 5 to 10 degrees of dorsiflexion at the MTP joint with virtually 0 degrees of plantar flexion. He appeared to be slightly dorsiflexed at the base line with some mild hallux valgus. There was no compensatory hammer toe of the second toe callosity. He was neurovascularly and sensorily intact. X-rays demonstrated end stage arthritis of the 1st MTP, with a sizeable osteophyte. The Veteran wished to proceed with 1st MTP joint arthrodesis. This procedure was performed in October 2015. Private treatment records dated in October 2015 and November 2015 demonstrated left and right hallux valgus, status post right 1st MTP arthrodesis in October 2015. A January 2016 treatment record indicated that the Veteran was doing well with no pain in the right foot and no complaints. The 1st MTP joint was in excellent alignment with fusion across the joint. The Veteran was told to progress his activities as tolerated. An April 2016 treatment note again indicated that the Veteran was doing well with a solid arthrodesis; his left foot symptoms, however, continued. A February 2017 private treatment note shows complaints of continued left foot symptoms and discomfort with a prominence over the dorsal aspect of the right foot. Other private treatment reports dated throughout 2017 and 2018 reflect that the Veteran underwent arthrodesis of the left 1st MTP with open relocation of dislocated 2nd MTP joint in October 2017 and continued diagnoses of left foot hallux rigidus; osteoarthritis of the first 1st left MTP joint; and dorsal dislocation of the left 2nd MTP joint. The Veteran underwent a VA foot examination in August 2020. He reported flares up with constant walking and standing on both feet, mostly heel areas. Functional loss was described as “on repetitive walking or frequent standing causes functional loss as has to sit and take breaks off feet.” He had pain on use of the feet, accentuated on use; pain on manipulation; extreme tenderness of plantar surfaces of feet, not improved by orthotics; and hallux valgus causing alteration of the weight-bearing line. There was inward bowing of the Achilles’ tendons. Hallux valgus symptoms were described as severe, bilaterally. There was a history of surgery for right metatarsophalangeal of the foot with hallux valgus deformity and right plantar calcaneal spur in 2015. Bilateral degenerative and right calcaneal spurs were noted as mild, bilaterally, and chronically compromised weight bearing requiring arch supports/orthotics. There was evidence of right and left foot pain on examination. Functional loss was described as less movement than normal, incoordination, pain on movement, pain on weight bearing, interference with standing, and additional factors such as pain caused less movement especially on weight bearing when walking and standing, bilaterally. Pain, weakness, fatigability, or incoordination that significantly limited functional ability during when the feet were used repeatedly over a period of time. The Veteran did not use any assistive devices. Functioning of the lower extremities was not so diminished that amputation with prosthesis would equally serve the Veteran. There was severe osteoarthritis with hypertrophic changes involving the right metatarsophalangeal joint of the big toe with hallux valgus; mild osteoarthritis was noted in the left big toe at the metatarsophalangeal joint with hallux valgus; moderate right plantar calcaneal spur; and plantar arches were maintained on examination. The impression was as follows: (1) Severe osteoarthritis right big toe metatarsophalangeal joint with marked hypertrophic spur specially to the superior aspect and moderate right plantar calcaneal spur; and (2) mild left first metatarsophalangeal osteoarthritis. Weight bearing on assessment caused discomfort; there were no signs or complaints of pain on non weight bearing; active motion on assessment to included flexion and dorsiflexion caused discomfort; passive motion on assessment to include flexion and dorsiflexion caused discomfort, bilaterally. The examiner stated that the Veteran’s plantar fasciitis was separate from diagnosed degeneration and hallux valgus. Analysis The Veteran contends that he is entitled to initial higher ratings for his service-connected bilateral foot disabilities. During his hearing before the undersigned, the Veteran and his attorney argued that the loss of range of motion of the 1st MTP joints, alone, was sufficient to bump him up to the “moderately severe” level to allow for 20 percent ratings. See Hearing Transcript, p. 8. It was additionally asserted that the Veteran’s painful motion, limitations on daily activities, weekly flare-ups, restrictions on standing and walking, and occasional use of a cane warranted the next-higher rating under DC 5283. The Veteran’s right and left foot disabilities, variously diagnosed as DJD of the right metatarsophalangeal of the right foot with hallux valgus deformity and plantar calcaneal, and DJD metatarsophalangeal of the left foot with hallux valgus deformity, are each rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5283, for nonunion or malunion of tarsal or metatarsal bones. Notably, under the Diagnostic Codes pertaining to hallux valgus (DC 5280) and hallux rigidus (DC 5281), the maximum assignable ratings are 10 percent. As the Veteran is in receipt of 10 percent ratings under DC 5283, use of that DC is most favorable to the Veteran as ratings in excess of 10 percent are available. Under Diagnostic Code 5283, a 10 percent rating is warranted for moderate nonunion or malunion of tarsal or metatarsal bones. A 20 percent rating is warranted for moderately severe nonunion or malunion of tarsal or metatarsal bones. A 30 percent rating is warranted for nonunion or malunion of tarsal or metatarsal bones. A Note to Diagnostic Code 5283 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5283. The Board points out that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In other words, as a threshold matter, if the Veteran's foot disability is not one of the listed disabilities for the foot under Diagnostic Code 5276 through 5283, then consideration of Diagnostic Code 5284 is appropriate. However, a rating under Diagnostic Code 5284 is not required if the criteria for one of the other listed foot disabilities specifically contemplates the Veteran's symptomatology. Here, after considering the facts in this case, the Board finds that the Veteran's service-connected left and right foot disabilities, which largely involve impairment of the 1st metatarsophalangeal joints (MTP) associated with age-related arthritis (see 2009 VA examination noting that the bilateral MTP is age-related), are more appropriately rated under Diagnostic Code 5283 rather than "other foot injuries" under Diagnostic Code 5284. Having determined the above, the Board has carefully reviewed the Veteran’s competent and credible statements/hearing testimony in conjunction with voluminous medical record showing varying symptoms throughout the appeal period, and agrees that the left and right foot disability more nearly approximates characterization as moderately-severe functional impairment, in support of a 20 percent ratings under Diagnostic Code 5283. See 38 C.F.R. § 4.71a. Indeed, the bilateral foot disabilities have been primarily manifested by objective evidence of degenerative joint disease (status post arthrodesis) of the 1st MTP joints resulting in limited to no flexion/dorsiflexion; large osteophytes of the 1st MTP joints requiring shoe modifications; hallux valgus of the 1st MTP joints causing deformities and alterations of the weight-bearing line; and calcaneal spurs. The bilateral foot disabilities have been further characterized by objective and subjective reports of pain on movement, compromised weight-bearing, swelling, stiffness, fatigability, lack of endurance, flare-ups, discomfort with repeated use, and interference with standing/walking, all which have been shown to impact the Veteran's daily activities. See also 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra; see also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). In examining this evidence in a light most favorable to the Veteran, the Board finds it is at least in equipoise that the Veteran's right and left foot disabilities more nearly approximate the criteria for higher 20 percent ratings for each foot, based on moderately severe impairment. However, a preponderance of the evidence is against a finding that the Veteran's bilateral foot disabilities manifest with symptoms reflecting severe impairment. The Board has considered whether higher ratings are appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59 and concludes that such is not warranted. The limitations and functional impact the Veteran experiences due to pain, weakness, discomfort, and similar complaints are accounted for in the increased 20 percent ratings for moderately severe symptomatology. The Veteran’s DJD has been variously described as severe, and he undoubtedly has some limitations with prolonged standing and walking. However, the most recent 2020 VA examination report and private medical evidence (dated 2018) reflects that the Veteran had no pain with non-weightbearing, used no assistive devices, and continued to engage in activities such as golf on occasion. See also January 2011 Private Treatment Report (noting that the Veteran remained active and able to golf); February 2017 Private Treatment Report (noting that the Veteran was back to his regular activities, regular shoes, and playing golf; some symptoms on the left; full dorsiflexion and plantar flexion). The evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating at any time during the appeal period. The Board has considered whether the Veteran is entitled to a separate or higher rating under any other applicable DC of the rating schedule. 38 C.F.R. § 4.71a, DCs 5276-5284. Regarding pes planus (or flatfoot) under DC 5276, the August 2020 examiner expressly found that the Veteran’s symptoms of pes planus were unrelated to the currently service-connected bilateral foot disabilities. Therefore, higher or separate ratings under DC 5276 are not appropriate. The record also reflects that the Veteran has degenerative arthritis of both feet. The Board has considered whether the Veteran would be entitled to separate ratings based on arthritis, as DC 5003 does not provide for a rating in excess of 20 percent. However, the Board finds that separate ratings for arthritis are not warranted. The Veteran's 20 percent ratings under DC 5283 contemplate his symptoms of pain; therefore, assigning separate 10 percent ratings under DC 5003 would constitute pyramiding as he would be compensated twice for the same symptomatology. 38 C.F.R. § 4.14. Similarly, separate evaluations would not be warranted under DC 5003 based on X-ray findings, as arthritis is already being compensated based on symptoms the arthritis causes, including pain and other factors in 38 C.F.R. § 4.59, such as functional impairment from pain on weight and nonweight bearing, swelling, disturbance of locomotion, interference with standing, and lack of endurance. See Southall-Norman, 28 Vet. App. 346. Hence, evaluations of right and left foot arthritis based on X-ray findings would not be appropriate. See 38 C.F.R. § 4.71a, DC 5003, Note (1). The Board notes that the Veteran has been diagnosed with hallux valgus and hallux rigidus (remotely, in 2009). As noted, these disorders are contemplated under DCs 5280 and 5281, respectively, and provide maximum 10 percent ratings. Thus, higher ratings cannot be assigned under these DCs. Moreover, separate ratings under these DCs would not be warranted as this would amount to impermissible pyramiding because the symptoms considered in the evaluations being assigned under 5283 would also be considered in the evaluations under DCs 5280 or 5281. 38 C.F.R. § 4.14. The above evidence is also against assigning higher or separate ratings under Diagnostic Code 5277 (weak foot), Diagnostic Code 5278 (claw foot), Diagnostic Code 5279 (anterior metatarsalgia), Diagnostic Code 5282 (hammer toe), or Diagnostic Code 5284 (foot injuries, other). Additionally, the criteria used to evaluate the feet were recently revised, effective February 7, 2021, to provide evaluation of plantar fasciitis under new DC 5269. 85 Fed. Reg. 76453 (Nov. 30, 2020), rev'd 86 Fed. Reg. 8142 (Feb. 4, 2021). However, the evidence does not reflect that the Veteran has plantar fasciitis; therefore, a separate or higher rating under this new Diagnostic Code from the effective date of the revised regulation is not warranted. As noted, the Board has considered whether the Veteran's bilateral foot disabilities would be better or more appropriately rated under any of these other codes but finds that Diagnostic Code 5283 is most appropriate. See Butts, supra. With respect to surgical scars, on VA examination in 2020, the Veteran had a discernable surgical scar associated with the right foot disability that was neither painful nor unstable; it was not noted to limit the motion of the affected joint; and it did not cover an area exceeding 144 square inches; therefore, a separate compensable rating for the noted scar associated with the Veteran's right foot arthrodesis surgery is not warranted at this time. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. Lastly, the amputation rule set forth at 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. The combined rating for disabilities below the knee shall not exceed 40 percent, however, the 40 percent rating may be further combined with the rating for disabilities above the knee but not to exceed the above knee amputation elective level. Amputation of the thigh, disarticulation, with loss of extrinsic pelvic girdle muscles can be rated at 90 percent. 38 C.F.R. § 4.71a, 5160. The amputation rule prohibits a combined rating in excess of 90 percent for all disabilities above and below the level of the knee, as the rating schedule prescribes a maximum 90 percent rating for amputation above the knee. See 38 C.F.R. §§ 4.68, 4.71a, DC 5160 (amputation of the thigh). Here, the Board observes that the Veteran is currently in receipt of a 20 percent rating for right lower extremity radiculopathy (femoral nerve), a 30 percent rating for total right knee replacement, a 30 percent rating for DJD of the right hip, status post replacement, and now a 20 percent rating for the right foot disability, thereby yielding a combined rating of 70 percent. Since the schedular criteria provide for a maximum 90 percent rating for the amputation of a leg above the knee, including amputation of the thigh, a combined rating of 70 percent for the disabilities of the right lower extremity, to specifically include the grant of a 20 percent for the right foot disability, may be granted under the applicable regulatory provisions. As such, the Board finds that the Veteran's overall disability picture more nearly approximates the level of severity contemplated by a 20 percent rating, but no higher, for a moderately-severe left and right foot disabilities. In reaching the above conclusions, the Board has resolved the benefit of the doubt in the Veteran's favor. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. 5. Entitlement to a TDIU. The Veteran contends that he is unable to secure or follow substantially gainful employment as a result of his service-connected lumbar spine, bilateral foot, bilateral knee, and bilateral hip disabilities. His formal application for a TDIU, which was received in January 2020, reflects that he was last employed on a full-time basis as a warehouse manager on June 28, 2013. He completed 2 years of college and has training in management. In this matter, the service-connected disabilities included total right knee replacement (30 percent disabling from March 15, 2006); left knee replacement (30 percent disabling from March 15, 2006, excluding a 100 percent rating effective from March 10, 2009, to May 1, 2009); left hip replacement (10 percent disabling from November 9, 2009, and 30 percent disabling from March 1, 2011, excluding a 100 percent rating from January 20, 2010, to March 1, 2011); right hip replacement (10 percent disabling from September 17, 2010, to January 16, 2013; 100 percent from January 16, 2013, to March 1, 2014; and 30 percent disabling from March 1, 2014); right foot disability (20 percent disabling from March 2, 2009); left foot disability (20 percent disabling from March 2, 2009); radiculopathy of the right lower extremity (femoral nerve) (20 percent disabling from August 15, 2020); anxiety disorder (10 percent disabling from February 26, 2010); and lumbar spine (10 percent disabling from January 11, 2011); scar, right herniorrhaphy (0 percent disabling). As noted, the Veteran was gainfully employed until June 28, 2013. He is in receipt of special monthly compensation (SMC) pursuant to U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i) on account of right hip DJD, rated as 100 percent (a temporary total rating) from January 16, 2013, to March 1, 2014, and additional service-connected disabilities of the bilateral feet, bilateral knees, left hip, and lumbar spine, independently ratable at 60 percent or more. This is the maximum SMC provided by the rating schedule for this Veteran's disabilities. As such, any question of entitlement to a TDIU prior to March 1, 2014, has been rendered moot. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Since March 1, 2014, the Veteran has been rated as 100 percent disabled due to multiple service-connected disabilities. The Board has considered whether the Veteran has a single, separate service connected disability that, alone, could support the grant of a TDIU, resulting in entitlement to SMC at the statutory housebound rate from March 1, 2014. See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Pursuant to a January 2020 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran conveyed being unemployable due to multiple service-connected orthopedic disabilities, including his lumbar spine, bilateral foot, bilateral hip, and bilateral knee disabilities. The Veteran explained that he was unable to work for more than 30 minutes due to the collective impact on his back, hips, knees, and feet. He stated that he had been limited to lifting 10 to 20 pounds “because of my knees [and] hips” and that his “back became a big issue.” The August 2020 VA foot examiner noted that the foot disabilities would impact occupational activities involving standing or walking; the August 2020 VA spine examiner noted that the lumbar spine disability would impact occupational activities involving prolonged sitting, standing, or walking; the February 2020 VA knee and hip examiner found that the bilateral knee and hip disabilities would limit occupational activities involving prolonged standing, walking, squatting, or climbing steps/ladder; and the April 2015 VA spine examiner stated that the Veteran could not perform a job requiring excess bending or lifting. Review of the medical evidence of record supports that the Veteran is unemployable due to a combination of orthopedic symptoms, and not one single, separate service connected disability. Having reviewed all the evidence of record, both lay and medical, the Board finds that the weight of the lay and medical evidence demonstrates that, for the period beginning March 1, 2014, the criteria for a TDIU have not been met or more nearly approximated based on a single service-connected disability, to warrant the grant of SMC benefits at the statutory housebound rate. See Buie, 24 Vet. App. at 250-51; Bradley, 22 Vet. App. at 294. By the Veteran's own admission, unemployability is due to a combination of service-connected orthopedic symptoms. As the preponderance of the evidence is against entitlement to a TDIU for the period beginning March 1, 2014, based on a single service-connected disability for purposes of obtaining SMC at the statutory housebound rate, the benefit of the doubt doctrine is not for application, and a TDIU for the period from March 1, 2014, must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft 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.