Citation Nr: 21026052
Decision Date: 04/29/21	Archive Date: 04/29/21

DOCKET NO. 15-16 935
DATE: April 29, 2021

ORDER

Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied.

Entitlement to a disability rating in excess of 10 percent for degenerative arthritis, right ankle, is denied.

Entitlement to a disability rating in excess of 10 percent for degenerative arthritis, left ankle, is denied.

Entitlement to a disability rating in excess of 10 percent for degenerative arthritis, right knee, is denied.

Entitlement to a disability rating in excess of 10 percent for degenerative arthritis, left knee, is denied.

Entitlement to a disability rating in excess of 10 percent for calcaneal spurs, left foot, is denied.

Entitlement to a disability rating in excess of 10 percent for calcaneal spurs, right foot, is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

FINDINGS OF FACT

1. At worst, the Veteran’s forward flexion of the spine was limited to 45 degrees, and he was consistently found not to have any form of ankylosis; there was also no evidence of symptom combinations productive of definite impairment of health objectively supported by examination findings; incapacitating exacerbations occurring three or more times a year or more; weight loss and anemia productive of severe impairment of health; or constitutional manifestations associated with active joint involvement that are totally incapacitating.

2. The Veteran’s plantar flexion and dorsiflexion of the right and left ankles were each limited to 10 degrees, at worst, and there was no evidence of ankylosis, ankle instability/dislocation, or muscle atrophy. 

3. The Veteran’s right knee flexion was limited to 60 degrees, at worst, with objective evidence of painful motion beginning at 35 degrees, and there was no evidence of muscle atrophy, ankylosis or instability.

4. The Veteran’s left knee flexion was limited to 90 degrees, at worst, with no evidence of muscle atrophy, ankylosis or instability.

5. There was no evidence of marked deformity of either the right or the left foot, to include pronation and abduction, or swelling on use, and additionally, there was no evidence of fatigue, incoordination or decrease in function with his gait related to either foot condition.

6. The Veteran has been gainfully employed throughout the appeal period.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5002-5242.

2. The criteria for entitlement to a disability rating in excess of 10 percent for degenerative arthritis, right ankle, have not been met. 38 U.S.C. §§ 1155, 5121A (2012); 38 C.F.R. §§ 3.1010, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.

3. The criteria for entitlement to a disability rating in excess of 10 percent for degenerative arthritis, left ankle, have not been met. 38 U.S.C. §§ 1155, 5121A (2012); 38 C.F.R. §§ 3.1010, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.

4. The criteria for entitlement to a disability rating in excess of 10 percent for degenerative arthritis, right knee, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5260.

5. The criteria for entitlement to a disability rating in excess of 10 percent for degenerative arthritis, left knee, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5260.

6. The criteria for entitlement to a disability rating in excess of 10 percent for calcaneal spurs, left foot, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276.

7. The criteria for entitlement to a disability rating in excess of 10 percent for calcaneal spurs, right foot, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276.

8. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1975 to October 1978.

The matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran appeared before the undersigned Veterans Law Judge during a July 2015 Board hearing and a transcript of that proceeding is of record. 

Having reviewed the record, the Board finds that there has been substantial compliance with the previous Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the Board remand, VA treatment records and adequate VA examinations/medical addendum opinions have been obtained. As a result of the prior remand, the Veteran now has multiple separate ratings which will be further discussed in detail below.

While a claim for entitlement to service connection for hypertension was also remanded, this claim is no longer in appellate status, as it was actually granted in an October 2020 rating decision, effective March 29, 2015, with a compensable disability rating. Because this decision represents a full grant of the benefit sought on appeal, this issue is no longer before the Board. See Grantham v Brown, 114 F. 3d 1156 (Fed Cir 1997).

Additional treatment records and examinations have been associated with the Veteran’s claims file since the issuance of the October 2020 Supplemental Statement of the Case. However, the Veteran submitted a written waiver of the RO’s initial consideration of that evidence in March 2021 (see March 2021 correspondence letter, “this waiver extends to any documents added to the file subsequent to the date on this waiver, in order to avoid any delays in obtaining review by the Board”), and the VA examinations are not pertinent to the issues on appeal. Thus, the Board may proceed to adjudicate issues on appeal at this time. 

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board’s analysis will focus on what the evidence shows, or fails to show, as to each claim.

Increased Rating

Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Where entitlement to compensation already has 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). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

1. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine

A discussion of the procedural history is necessary to clarify the issue addressed herein for the lumbar spine disability. Prior to the April 2020 Board remand, the Veteran was service connected for arthralgia, multiple joints, including lumbar spine, feet, ankles, and knees (rated under DC 5002 as 20 percent, effective June 18, 1992). Post-Board remand, the RO granted him, pursuant to an October 2020 rating decision, a separate 20 percent rating under DC 5002-5242, for lumbar spine degenerative disc disease (DDD), effective March 29, 2012. In a November 2020 rating decision, the RO found that the October 2020 rating decision was clearly and unmistakably erroneous in having granted a separate evaluation for lumbar spine DDD, and combined the two ratings for lumbar spine DDD and arthralgias, multiple joints, including lumbar spine, feet, ankles, and knees, reinstating a single rating for lumbar spine DDD, as the initial 20 percent rating under DC 5002 was a protected rating since it has been in effect since June 18, 1992. This was done because the Veteran cannot receive two separate ratings for the lumbar spine disability.  The RO has not severed service connection for arthralgia, multiple joints, including lumbar spine, feet, ankles, and knees, but, rather, has now assigned separate ratings for each joint.

Turning to the issue of increased rating for the lumbar spine disability, the Board reiterates that the Veteran is currently rated under DC 5002-5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. The Board is allowed to consider these changes, although the RO has not yet done so. 38 C.F.R. § 20.904(d)(2) (remand to the AOJ is not necessary for consideration of law not already considered by the AOJ, including regulations).  

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 

Prior to the recent amendment, DC 5242 provided criteria for degenerative arthritis of the spine, referencing DC 5003. As of February 7, 2021, the amended version of DC 5242 provides criteria for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, and references DC 5003 and 5010. Regardless, both versions of the regulations for spine disorders provide that DCs 5235 to 5243 are evaluated under the General Rating Formula for Diseases and Injuries of the Spine unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the amended criteria, DC 5003 provides criteria for degenerative arthritis, other than post-traumatic (but the rating criteria itself remain the same as the pre-amendment version) and DC 5010 now provides criteria for post-traumatic arthritis, and directs ratings be based on “limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25.” 

Under the pre-amended version of DC 5002, rheumatoid arthritis is rated as an active process or based on chronic residuals such as limitation of motion or ankylosis. The ratings for the active process may not be combined with the residual ratings for limitation of motion or ankylosis. The higher evaluation will be assigned. As an active process, rheumatoid arthritis is assigned a 20 percent rating for one or two exacerbations a year in a well-established diagnosis. A 40 percent rating is assigned for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A 60 percent rating is assigned when the severity is less than the 100 percent criteria, but there is weight loss and anemia productive of severe impairment of health, or severely incapacitating exacerbations occurring four or more times a year or a less number over prolonged periods. A 100 percent rating is assigned when there are constitutional manifestations associated with active joint involvement that are totally incapacitating. Id. Chronic residuals of rheumatoid arthritis such as limitation of motion or ankylosis are rated under the appropriate DCs for the specific joints. Where the limitation of motion of the specified joint or joints involved is noncompensable under the specific DCs, a rating of 10 percent is assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id.

Under the amendment, Diagnostic Code 5002 also was renamed from rheumatoid arthritis to multi-joint arthritis to take into account all systemic arthritis (except post-traumatic and gout). It also deleted the section regarding the chronic residuals, but added the following new Notes: Note (1): Examples of conditions rated using this diagnostic code include, but are not limited to, rheumatoid arthritis, psoriatic arthritis, and spondyloarthropathies; Note (2): For chronic residuals, rate under diagnostic code 5003; Note (3): The ratings for the active process will not be combined with the residual ratings for limitation of motion or, ankylosis, or diagnostic code 5003. 

The Veteran first underwent a VA examination during the appeal period in May 2012, during which time he was diagnosed with rheumatoid arthritis (atrophic).  He reported that his lower back “kill[s] him.” While his condition was noted to require continuous use of medication, there was no evidence of lost weight or anemia due to this arthritis condition. His thoracolumbar spine pain was noted to be due to this arthritis condition, and his lumbar spine muscles were noted to be tender, but the examiner indicated that there were no neurological deficits or limitations to the ROM (range of motion) of the lumbar spine. There was also no evidence of exacerbations that were incapacitating or any constitutional manifestations that were totally incapacitating.  

In March 2014, the Veteran was diagnosed with degenerative arthritis of the spine. He reported severe constant back pain that has been worsening, as well as flare-ups (2-3 times a week, with each lasting one day) disabling him to walk/stand/function easily. With worsening pain, he stated being unable to stand or walk; he added that he has had episodes where he needed bed rest but could not due to work, and stated that he has not been prescribed bed rest by his physician. He also reported pain down both legs (worse on the right side), accompanied by numbness and tingling. His initial range of motion was limited to 60 degrees, with objective evidence of painful motion at 60 degrees. He was able to perform repetitive-use testing with three repetitions, with post-test forward flexion ending at 45 degrees. Less movement than normal, pain on movement, and disturbance of locomotion were identified as factors attributing to his functional loss/impairment. His muscle strength was either 4/5 or 5/5 with normal reflex exam, and there was no evidence of muscle atrophy. As for the sensory exam, he manifested “normal” left upper anterior thigh/thigh/knee/lower leg/ankle and foot/toes, and “decreased” right upper anterior thigh/thigh/knee/lower leg/ankle and foot/toes.  He was found to have mild radiculopathy in the right and left lower extremities that was of mild severity. There was no evidence of ankylosis, or other neurologic abnormalities. While the Veteran was found to have IVDS, there was no evidence of incapacitating episodes over the past 12 months due to IVDS. As for functional impact, he was noted to be unable to stand/walk for long time/lift, bend, or squat. His condition was also noted to require constant use of cane.    

During a January 2015 VA examination, although the examiner indicated that the Veteran’s diagnosis of chronic low back pain is without obvious etiology, considering that the Veteran has been service-connected for his lumbar spine disability, the Board will discount that opinion but the actual findings of this examination are still probative and relevant evidence.  During this examination, the Veteran did not report any flare-ups impacting the function of his back, or any functional loss/impairment. His initial ROM of forward flexion was limited to 70 degrees, and after observed repetitive use, he was able to perform without any additional loss of function or ROM. His muscle strength was 4/5, with “normal” reflex and sensory exam, and there was also no evidence of radiculopathy, any other neurologic abnormalities, IVDS, or muscle atrophy. His functional impact was noted to be inability to sit for too long without pain. 

An August 2019 VA examination provides a diagnosis of rheumatoid arthritis, requiring continuous use of medication, but there was no evidence of lost weight or anemia due to this arthritis condition. The examiner indicated that there is no pain, limitation of joint movement, joint deformities, systemic involvement or incapacitating and non-capacitating exacerbations attributable to the arthritis condition. 

In July 2020, the Veteran was diagnosed with degenerative disc disease of the back. The Veteran reported worsening pain over the years, as well as daily pain, and his condition required use of opioid medication multiple times a day “just to function.” He also reported daily moderate flare-ups of the back, precipitated by walking, where each episode lasts for hours and gets alleviated by sitting. His forward flexion was limited to 90 degrees, extension to 30 degrees, and no pain was noted on exam. After observed repetitive use, there was no additional loss of function or range of motion (ROM). Although the Veteran was not able to be examined immediately after repetitive use over time/during a flare-up, the examiner indicated that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Specifically, the examiner indicated that pain causes functional loss, and the examiner described it in terms of the following ROM: forward flexion to 45 degrees, extension to 30 degrees. There was no evidence of muscle spasm, but disturbance of locomotion and interference with sitting and standing were identified as additional factors contributing to his disability. His muscle strength, reflex exam, and sensory exam results were all normal, with no evidence of muscle atrophy. There was also no evidence of radiculopathy, ankylosis, IVDS or other neurologic abnormalities.  There was objective evidence of pain on passive/non-weight bearing testing of the back. He was found to constantly use a brace, and occasionally use crutches and a cane for his back pain. In addition, having to avoid walking/standing for more than 5 minutes at a time was identified as his functional impairment. 

His VA treatment records document some information pertaining to the limitation of ROM–i.e. forward flexion limited to 80 degrees (March 2018 VA treatment records), forward flexion limited to 60 degrees (June 2016 VA treatment records), and full ROM without diffuse, subscapular pain, and tender points (February 2013 VA treatment records). 

After reviewing all records, the Board finds that the Veteran’s lumbar spine disability does not warrant a higher rating under either version of DC 5242 throughout the appeal period. 

In this case, the Veteran’s forward flexion was, at worst, limited to 45 degrees, and there is no evidence of any form of ankylosis throughout the appeal period. Additionally, his muscle strength/reflex exam/sensory exam were all consistently normal, with no evidence of muscle atrophy. Furthermore, even though there is evidence of IVDS, a higher rating could not be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes as there is no evidence of incapacitating episodes, which VA defines as bedrest prescribed by a physician. The fact that the Veteran may voluntarily restrict his activities or rest in bed when he has flare-ups does not meet VA’s definition of an incapacitating episode. Thus, this claim is denied. 

The Board also considered the possibility of awarding a higher rating with consideration of 38 C.F.R. §§ 4.40 and 4.45. The U.S. Court of Appeals for Veterans Claims (CAVC) recently held in Chavis v. McDonough, No. 18-2928 (U.S. Vet. App., April 16, 2021) that application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula for Diseases and Injuries of the Spine of an evaluation based on ankylosis if a claimant’s functional loss is consistent with that contemplated by ankylosis—in other words, if the demonstrated functional loss is the functional equivalent of ankylosis. In Chavis, the CAVC noted that the rating criteria define ankylosis in terms of limitation of motion. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). Essentially, ankylosis contemplates “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that “a joint is fixed, or 'frozen' in one position.”).  

In this case, although the Board acknowledges the Veteran’s lay reports of symptoms of inability to stand/walk for more than 5 minutes, difficulty bending/lifting/squatting—all indicative of some functional loss— the Board concludes that such alleged functional loss is not consistent with that contemplated by ankylosis. Notably, there is no suggestion of any limited motion of the spine comparable to any type of immobility; he was still able to perform forward flexion and his forward flexion was limited to 45 degrees at worst. Also, to the extent that the Veteran has experienced functional loss due to disturbance of locomotion, less movement than normal, pain on movement, and interference with sitting and standing, he has not alleged functional impairment comparable to that experienced by an individual with immobility of part of the spine.  His symptoms are fully contemplated by the assigned schedular rating. The DeLuca concepts of functional loss, painful motion, etc. are still used to apply the rating criteria found in the diagnostic codes.  Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016) and Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011).  The Thompson court explained: “Section 4.40 also makes clear that functional loss may be due to pain and that pain may render a part seriously disabled. When evaluating a disability, § 4.40 provides a broad canvas. However, whatever the background, an applicant for disability benefits is rated based on the criteria set forth in § 4.71a.”  Thompson, 815 F.3d at 786.  So, in other words, pain alone without it resulting in any functional loss is not enough to warrant an increased rating.  The Veteran was also able to perform after repetitive use testing, even with objective evidence of pain, without any additional limitation of range of motion.  As such, the current rating adequately compensates him for his pain with limited motion, and a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995), nor is his disability the equivalent of ankylosis.

With regards to the applicability of DC 5002 (either the pre-amended or the post-amended version) warranting a higher disability rating, the Board notes that there is no argument or suggestion of symptom combinations productive of definite impairment of health objectively supported by examination findings; incapacitating exacerbations occurring three or more times a year or more; weight loss and anemia productive of severe impairment of health; or constitutional manifestations associated with active joint involvement that are totally incapacitating. He was consistently not found to have systemic involvement, constitutional manifestation, or incapacitating and non-capacitating exacerbations attributable to the arthritis condition. Thus, the Veteran does not warrant a higher rating under DC 5002 as well, and his condition is better evaluated under rating lumbar spine conditions. 

The Board has also considered whether an increased rating greater than 10 percent is warranted under other diagnostic codes pertaining to the back disability (i.e. DCs 5235-5241, 5243). Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds such not applicable, as the Veteran does not have vertebral fracture or dislocation, sacroiliac injury and weakness, spinal stenosis, ankylosing spondylitis, or spinal fusion. 

The Board also considered the Veteran’s lay assertion that he has been receiving shots for his lower back due to occasional paralysis from the waist down. The Board finds these statements to be credible and competent to the extent that the relay the professing witness’s own experiences and personal observations. Layno v. Brown, 6 Vet. App. 465 (1994). However, since the degree of the Veteran’s impairment depends on the clinically significant symptoms and objectively measurable criteria under the rating schedule, the Board affords greater evidentiary weight to the contemporaneous medical records and objective examinations by medical professionals over the subjective lay statements offered by the Veteran.

With regards to any associated neurological abnormalities, the Veteran was noted to have radiculopathy in the right and left lower extremities that is of mild severity (see March 2014 VA examination). In an October 2020 rating decision, RO granted two separate 10 percent ratings for radiculopathy of the left and right lower extremity associated with the service-connected lumbar spine DDD, effective March 18, 2014. However, RO did not include these issues in the subsequent SSOC, so the Veteran was not led to believe these issues would be considered by the Board.  The Veteran has not contested those ratings, although he is within the time period to do so. Therefore, the Board finds that the question of a higher rating for the right and left lower extremity radiculopathy is not before the Board at this time.

The Board is also cognizant of the extraschedular consideration raised by the Veteran’s representative (that it is a component of an increased rating claim and that the Board is obligated to consider its applicability). See February 2021 Appellate Brief. Although no specific contentions in support of this request have been provided, the Board will still address whether referral for extraschedular consideration is warranted. 

An extraschedular disability rating is warranted when the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). Both elements must be satisfied to warrant extraschedular referral. Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016).

Recently, the United States Court of Appeals for Veterans Claims (CAVC) issued an en banc decision in Long v. Wilkie, No. 16-1537 (U.S. Vet. App., December 30, 2020), which provided, in part, six non-exhaustive or mandatory guiding principles to facilitate proper analysis of Thun’s first step. First, the sole focus of Thun’s first step is on the ability of the rating schedule to evaluate the veteran’s symptomatology; extraschedular consideration is not applicable to claims that may be properly evaluated with conventional schedular rating tools. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). Second, Thun’s first step deals exclusively with whether the veteran’s symptoms (interchangeably referred to by the CAVC as “functional impairments”) are exceptional, whereas Thun’s second step considers the functional effects of those symptoms. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Third, where a symptom or impairment is not compensable under the rating schedule, such as is the case for psychiatric conditions without a valid DSM-5 diagnosis, see Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020), it also does not warrant extraschedular consideration as this would amount to a backdoor means to obtaining compensation for a condition the rating schedule intends to exclude. Fourth, extraschedular consideration is not warranted for symptoms or effects that lack a nexus to service or to a service-connected disability. Fifth, the Board is only required to discuss the theories of entitlement raised by the Veteran or reasonably raised by the record. Sixth, in reviewing the Board’s analysis of referral for extraschedular consideration, the CAVC will be mindful of the rule against prejudicial error. Thus, a failure of the Board to discuss whether extraschedular consideration is warranted for a particular symptom does not require an automatic remand.

The Board acknowledges the evidence potentially suggestive of marked interference with employment (i.e. inability to walk or stand more than 5 minutes, severe pain and flare-ups when walking). However, as the rating schedule for the musculoskeletal system as a whole is capable of assessing the Veteran’s alleged symptomatology (i.e. limitation of motion, functional loss and painful motion), referral for extraschedular consideration is not warranted.  Thus, even acknowledging the evidence suggestive of functional effects of that impairment (i.e. Thun’s second step), to the extent that the Thun’s first step has not been met, the Board finds that extraschedular consideration is not warranted for the Veteran’s service-connected back disability. Consequently, the benefit-of-the-doubt rule does not apply, and extraschedular referral is denied.

As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

2. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis, right ankle

3. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis, left ankle

As a result of the prior remand, the Veteran now has the following separate ratings: degenerative arthritis of the right and the left ankle, each rated as 10 percent, under DC 5271.  To the extent that the same facts and findings apply to these conditions, the Board will provide an analysis under this one section.  

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). As noted above, if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). 

Prior to the regulatory change, under DC 5271, a 20 percent rating was warranted for marked limited motion of ankle, and a 10 percent rating for moderate limited motion of ankle. 

Under the amended criteria, specific definitions for “marked” and “moderate” have been provided, but no other changes have been made—“marked” is now defined as  “less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion,” and “moderate” as “less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.”

A May 2012 VA examination includes only a few pertinent findings—the Veteran’s complaint of ankle pain (along with other orthopedic pain), a diagnosis of rheumatoid arthritis, and a finding that he has ankle pain due to this arthritis condition.  

During the March 2014 VA examination, the Veteran was diagnosed with mild degenerative joint disease of bilateral ankles. He reported constant pain, with aggravation of pain 4-5 times/week and swelling (with right side being worse). He reported ROM worsening with flare-ups and painful motion with walking and his medications not seeming to work. His plantar flexion for right and left ankle was each limited to 10 degrees, with objective evidence of painful motion at 10 degrees, and dorsiflexion to 10 degrees, with objective evidence of painful motion at 10 degrees. After repetitive use testing, his plantar flexion was to 10 degrees, and dorsiflexion to 10 degrees, for each ankle. There was no additional limitation in ROM after repetitive-use testing, but there were functional impairments (less movement than normal and pain on movement) and pain. His muscle strength was 4/5 for plantar flexion and dorsiflexion of each ankle, and no laxity was found during the anterior drawer and talar tilt tests. Despite constant use of a cane, there was no evidence of ankylosis, or any additional conditions (to include astragalectomy, malunion of os calcis or astragalus).   

An August 2019 VA examination indicated radiographic findings showed mild degenerative joint disease of both ankles with calcaneal enthesophytes, but provides no other pertinent information. 

An August 2020 VA examination includes the Veteran’s report of worsening bilateral ankle pain and his taking opioid pain medications multiple times throughout the day for pain alleviation. The Veteran reported daily flare-ups of bilateral ankle pain, precipitated by walking, that is moderate in severity, with each episode lasting for hours, but alleviated by medications. Each ankle’s dorsiflexion was to 20 degrees, and plantar flexion to 45 degrees, with no objective evidence of crepitus, but evidence of pain with weight bearing. After the observed repetitive use, he was able to perform without any additional loss of ROM/function. While he was unable to be examined immediately post-repeated use over time/during a flare-up, the examiner was able to describe in terms of ROM (dorsiflexion to 20 degrees and plantar flexion to 20 degrees), and further indicated that the examination is medically consistent with the Veteran’s statement describing functional loss with repetitive use over time, identifying pain as a factor significantly limiting his functional ability.  Disturbance of locomotion and interference with standing were identified as additional factors contributing to his bilateral ankle disability. His muscle strength was normal for both plantar flexion/dorsiflexion, with no evidence of muscle strength reduction, atrophy, or ankylosis in either side. There was also no evidence of ankle instability/dislocation or any additional conditions, to include malunion of calcaneus, talus, astragalectomy, etc. As for use of any assistive devices, he was noted to occasionally use crutches and a cane and constantly use braces—but all for his back pain. There was objective evidence of pain on passive ROM testing and non-weight bearing testing on both ankles. His functional impact was noted to be having to avoid standing/walking for more than 5 minutes at a time. 

His treatment records show intact dorsiflexion and plantar flexion, as well as intact and equal achilles reflexes (April 2012 VA treatment records) and ankle dorsiflexion and plantar flexion, each assessed as 3/5 and 4/5 (June 2020 VA treatment records). 

After reviewing all evidence, the Board finds that the Veteran’s symptoms of the right and the left ankle each manifested as equivalent to a moderate disability, and concludes a rating in excess of 10 percent is not warranted.

First, applying the post-amended version of DC 5271, the Board finds that the Veteran manifested limitation of plantar flexion to 10 degrees, and of dorsiflexion to 10 degrees, at worst, for each ankle, which is commensurate with the current 10 percent rating.  Even applying the pre-amended version of DC 5271, the Board notes that the Veteran was consistently found to have normal muscle strength, with no evidence of atrophy/ankylosis or ankle instability/dislocation. Even taking into consideration evidence of pain on passive ROM testing/non-weight bearing testing, and the degree of limitation, he was still able to perform after the observed repetitive use without any additional loss of ROM/function. Thus, in light of the above, the Board finds that the Veteran’s right and left ankle each manifested to only a moderate disability.  

The Board also considered whether the Veteran would be entitled to a higher rating on the basis of 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016), Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011).  While the Veteran reported functional loss of difficulty standing/walking for more than 5 minutes at a time and severely painful motion/flare-ups, these symptoms have been fully contemplated by the Veteran’s assigned schedular rating (ie. less movement than normal, weakened movement, and pain/movement), he was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or ROM afterwards. As such, the current rating adequately compensates him for his pain with some limited motion, and a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).

The Board has considered whether the Veteran would be entitled to a higher disability rating under any other DCs applicable to the right and left ankles. However, the Board finds none of the DCs (5270, 5272 through 5274) applicable, as there is no evidence the Veteran had any symptoms of ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus or had undergone an astragalectomy.

Last, but not least, with regards to whether the Veteran’s condition warrants an extraschedular consideration referral, but finds it not applicable. Initially, the Board notes that neither the Veteran nor his representative has provided any specific contention in support of this finding. The Board is cognizant of the evidence showing certain functional impairments as due to his alleged symptoms, potentially suggestive of marked interference with employment (i.e. inability to walk or stand more than 5 minutes, pain when walking). However, the Board points out that the rating schedule for the musculoskeletal system as a whole is capable of assessing the Veteran’s alleged symptomatology (i.e. limitation of motion, functional loss and painful motion)—and thus, the Board finds referral for extraschedular consideration is not warranted. Consequently, the benefit-of-the-doubt rule does not apply, and extraschedular referral is denied.

In summary, entitlement to a disability rating in excess of 10 percent for the Veteran’s right and left ankles is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

4. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis, right knee

As a result of the prior remand, the Veteran was granted a separate 10 percent rating for degenerative arthritis of the right knee under DC 5260. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed.

He first underwent a VA examination for his knee condition in May 2012, during which time he was diagnosed with bilateral arthralgia. His initial ROM of right knee flexion was to 110 degrees, with objective evidence of painful motion at 100 degrees, and there was no evidence of any limitation of ROM for the right knee extension. After repetitive use testing, his flexion of the right knee was shown to have improved (flexion limited to 115 degrees), and there was no evidence of limitation of ROM of hyperextension. The following were identified as factors contributing to his functional loss post-repetitive-use testing: less movement than normal and pain on movement for both knees. There was pain on palpation for the right knee, but muscle strength and joint stability test results were “normal,” with no evidence of patellar subluxation/dislocation or any additional conditions (i.e. shin splints, stress fracture, chronic exertional compartment syndrome, leg length discrepancy, any other tibial/fibular impairment, meniscus (semilunar cartilage), meniscectomy, joint replacement, arthroscopy). As for any other pertinent symptoms, the examiner indicated “grinding of both knees with motion” but stated that there is no x-ray evidence of patellar subluxation. While occasional use of a cane was noted, no functional impact was found. 

A March 2014 VA examination includes a diagnosis of osteoarthritis of the bilateral knees. The Veteran reported constant knee pain and swelling that tend to worsen during a flare-up. As for any functional impacts, the Veteran reported difficulty bending his knees, inability to drive long distances, and painful movement when switching from sitting to standing or lying to standing. His right knee flexion was limited to 60 degrees, with objective evidence of painful motion beginning at 35 degrees, and as for right knee extension, there was no limitation of ROM. After repetitive use testing, he was able to perform, with no additional limitation of flexion for the right knee, but the following factors were identified as contributing to his knee disability: less movement than normal, pain on movement, swelling, disturbance of locomotion, interference with sitting/standing/weight-bearing. There was evidence of pain in his right knee. Regarding functional limitations during a flare-up/after repeated use over a period of time, the examiner explained that there was no evidence of reduced ROM, fatigue, weakness, incoordination, or decrease in function with the Deluca measurements. His muscle strength for the right knee flexion and extension was each 4/5, and the joint instability for anterior/posterior/medial-lateral instability were all normal. There was no evidence of patellar subluxation/dislocation or any additional conditions (shin splints, stress fracture, chronic exertional compartment syndrome, leg length discrepancy, any other tibial/fibular impairment, meniscus (semilunar cartilage), joint replacement). While the examiner indicated that the Veteran had undergone arthroscopic knee surgery for the right knee—which appears to have been mistakenly noted, as various VA treatment records, to include a May 1999 arthroscopy surgery operative note, documents the left knee arthroscopy; see also January 2013 and December 2015 VA treatment records)—but regardless, the examiner indicated that there was no indication of any residual signs and/or symptoms. He was noted to constantly use a cane to get out of a chair and walk and described having to stay in bed until swelling subsides as his functional impact. The diagnostic finding referenced in the examination shows 2014 knee x-ray showing stable patellar and proximal right tibia enthesophytes with no other significant abnormalities and bilateral small anterior/superior/inferior patellar spurs and small lateral osteophyte from the proximal right tibia all unchanged since October 2012. 

Last, but not least, an August 2020 VA examination shows degenerative arthritis of bilateral knees. He reported worsening bilateral knee pain, difficulty walking and taking medications for 3 years. He also reported daily flare-ups that are of moderate severity, with each episode lasting for hours but alleviated by medications, as well as painful motion. His flexion was to 140 degrees, and extension to 0 degrees, and while there was evidence of pain noted on exam and on rest, there was no evidence of crepitus. He was able to perform repetitive-use testing with at least three repetitions, with no additional loss of function or ROM. Although he was not examined immediately after repetitive use over time/during flare-ups, the examiner indicated that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time, and identified pain affecting his functional loss. The examiner was able to describe in terms of ROM (flexion to 90 degrees). The examiner identified disturbance of locomotion, interference with standing, and inability to walk more than 5 minutes at a time as factors contributing to his disability. He manifested normal muscle strength, with no evidence of reduction in muscle strength/muscle atrophy/ankylosis. There was also no evidence of recurrent subluxation, lateral instability, or recurrent effusion. His joint stability was noted to be normal for anterior, posterior, medial, and lateral testing. He was also not found to have any recurrent patellar dislocation, shin splints, stress fracture, chronic exertional compartment syndrome, leg length discrepancy, any other tibial/fibular impairment, or meniscus (semilunar cartilage) condition. There was objective evidence of pain on passive ROM/non-weight bearing testing for right knee. 

His treatment records provide some additional information relating to limited ROM, muscle strength, and other symptoms, to include effusion. June 2014 VA treatment records show right knee range of motion limited to 100 degrees of flexion, with no evidence of effusion or instability, but evidence of walking with a cane with a slow gait. His June 2015 VA treatment records provide that his right knee flexion is to 110 degrees, and June 2018 VA treatment records show flexion limited to 120+ degrees. Although there is evidence of right knee effusion, it appears that this was only a rare occasion, and even then, there was no evidence of instability or dislocation of semilunar cartilage (see March 2014 VA treatment record, showing effusion, but intact patellar tendon; but see June 2016 VA treatment records, no effusion or atrophy; see also June 2018 VA treatment records, no effusion, stable to valgus stress and Lachman stable); see also September 2014 VA treatment records, showing +crepitus, but no laxity or effusion).

After reviewing all pertinent records, the Board finds that the Veteran is not warranted a rating in excess of 10 percent under DC 5260. At worst, his right knee flexion was limited to 60 degrees, with objective evidence of painful motion beginning at 35 degrees (which would be commensurate to his current 10 percent rating under DC 5260). Besides that one occasion, his right knee flexion was consistently limited to at least 90 degrees, or higher, throughout the appeal period. Moreover, throughout the appeal period, he showed normal muscle strength, with no evidence of muscle atrophy/ankylosis, and he was also able to perform post-repetitive use testing, with no additional limitation of flexion. Thus, the Board finds that the Veteran does not warrant a rating in excess of 10 percent under DC 5260.  To warrant the next highest rating, flexion would have to be limited to 30 degrees. 

In evaluating the Veteran’s increased rating claim, the Board must consider all applicable diagnostic codes, with an eye towards assigning the most favorable code.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  Disabilities of the knee joint, generally, are rated under Diagnostic Codes 5256 through 5263. 38 C.F.R. § 4.71a. Thus, the Board considered the aforementioned codes that could warrant a higher or an additional rating.  

With regards to DC 5257, it was amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). As discussed above, when a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). 

Prior to the regulatory change, slight recurrent knee subluxation or lateral instability is rated as 10 percent rating, moderate as 20 percent, and severe as 30 percent. 

As of February 7, 2021, under the amended version of DC 5257, criteria for recurrent subluxation or lateral instability has been changed as the following: Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation is rated as 30 percent. If one of the following is met, 20 percent is assigned: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent  instability, and a medical provider prescribes either an assistive device (e.g.,  cane(s), crutch(es), walker) or bracing for ambulation. Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation is rated as 10 percent. In addition, the amended version now includes new criteria for “patellar instability.” A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker is rated as 30 percent. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker is rated as 20 percent. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker is rated as 10 percent. Note (1) of this newly added “patellar instability” section provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

The Board finds neither the pre-amended nor amended version of DC 5257 applicable to rating the Veteran’s disability. First, the Board will proceed its analysis under the pre-amended version of DC 5257. The Board initially acknowledges that the Veteran is competent to report knee symptoms, including instability, as this is within the realm of his personal perception. See Layno, 6 Vet App. at 469; see also English v. Wilkie, No. 17-2083, 2018 U.S. App. Vet. Claims LEXIS 1464 (Nov. 1, 2018) (suggesting that lay evidence of knee instability is generally competent). Moreover, the Board is cognizant that objective medical evidence is not categorically more probative than lay evidence when it comes to determining the degree of right knee instability the Veteran has experienced during the appellate period. See English, at *2. However, in this case, at no time during the appeal period did the Veteran report any symptoms of the right knee subluxation or instability. Other than the evidence of painful motion and use of assistive devices, there is no objective evidence suggestive of any form of right knee subluxation or instability. In fact, he was consistently found not to have any recurrent subluxation and lateral instability of the right knee (see May 2012, March 2014, and August 2020 VA examinations; see also May 2012 VA examination, showing no x-ray evidence of patellar subluxation; see also September 2014 VA treatment records, showing no laxity). 

The Board also finds the amended version of DC 5257 not applicable. Initially, the Board considered the criteria under the “recurrent subluxation or lateral instability,” but there is neither objective nor subjective evidence of any form of ligament tear of the right knee (unrepaired/failed repair/complete or incomplete). In fact, his right knee was consistently found to be intact, with no evidence of any ligament tear. As for the evaluation under the criteria for “patellar instability,” the Board points out that the Veteran has not been diagnosed with any condition involving the patellofemoral complex consisting of quadriceps tendons/patella/patellar tendon. Moreover, as noted earlier, not only did the Veteran not undergo arthroscopy for his right knee, but also that DC 5257 specifically excludes arthroscopy from one of the qualifying surgical procedures for evaluating patellar instability under DC 5257. In light of these findings, the Board finds that neither version of DC 5257 applicable. 

In addition, the Court of Appeals for Veterans Claims (Court) held that evaluation of a knee disability under DC 5257 or 5261, as a matter of law, does not preclude separate evaluation of a meniscal disability of the same knee under DC 5258. See Lyles v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1704. Thus, the Board also considered whether the Veteran may be entitled to a separate compensable rating under Diagnostic Code 5258. In this case, although there is objective and subjective evidence of swelling of the right knee as well as crepitus, there is no evidence indicative of semilunar cartilage dislocation. In fact, even when he was found to have effusion, his patellar tendon was noted to be intact, and despite his use of assistive devices, he was consistently found to have either 4/5 or 5/5 muscle strength and normal joint stability, with negative findings for incomplete or partial dislocation of the right knee (see March 2014 VA treatment record, showing effusion, but intact patellar tendon; but see June 2016 VA treatment records, no effusion or atrophy; see also June 2018 VA treatment records, no effusion, stable to valgus stress and Lachman stable); see also September 2014 VA treatment records, showing +crepitus, but no laxity or effusion). Thus, in light of the absence of any evidence suggestive of semilunar cartilage dislocation, the Board finds this not applicable.  

DC 5259 is not applicable, as it contemplates meniscal disabilities after the semilunar cartilage is removed. The Veteran has not undergone such surgery.  The Board also concludes that DC 5256, 5261, and 5263 are not applicable, because there was no evidence of ankylosis, tibial or fibular impairments, limitation of extension compensable under 5261, or genu recurvatum. With regards to DC 5262 (tibia and fibula impairment), although effective February 7, 2021, its criteria for malunion has been deleted and has been replaced with an instruction that malunion be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, whichever results in the highest evaluation, along with an addition of a new criteria for a 30 percent rating (medial tibial stress syndrome or shin splints), the Board finds that neither the pre-amended nor the amended version of DC 5262 applicable, as there is no evidence of nonunion/malunion of tibia and fibula impairment, nor of medial tibial stress syndrome or shin splints.  

The Board also considered whether the Veteran would be entitled to a higher rating on the basis of 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016), Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011).  While the Veteran reported functional loss of difficulties with or inability to do any physical activities, such as prolonged walking, painful motion, and having to stay in bed until swelling subsides, these symptoms have been fully contemplated by the Veteran’s assigned schedular rating (ie. less movement than normal, weakened movement, and pain/movement). He was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or ROM afterwards. As such, the current rating adequately compensates him for his pain with some limited motion, and a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).

Last, but not least, the Board finds referral for extraschedular consideration for his knee disabilities is not warranted (and in doing so, the Board finds that this conclusion applies to both knees to the extent the almost identical symptoms apply to both knees, and also considering that the Veteran has not provided any contentions specific to either knee in support of this finding). Although the Veteran manifested symptoms of difficulty walking for extended periods of time, having to constantly use assistive devices and rest in bed until swelling subsides—i.e. potentially suggestive of marked interference with employment—as the rating schedule for the musculoskeletal system as a whole is capable of assessing the Veteran’s alleged symptomatology (i.e. limitation of motion, functional loss and painful motion)— the Board finds referral for extraschedular consideration is not warranted.  

In summary, entitlement to a disability rating in excess of 10 percent for the Veteran’s right knee disability is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

5. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis, left knee

As noted above, the Veteran was granted a separate 10 percent disability rating for degenerative arthritis of the left knee under DC 5260 as a result of the prior remand.

His May 2012 examination shows a diagnosis of bilateral arthralgia. His initial ROM of left knee flexion was limited to 115 degrees, with objective evidence of painful motion at 95 degrees, and no evidence of any limitation of ROM for left knee extension. Post-repetitive use testing, there was no additional limitation of ROM (flexion limited to 115 degrees), and there was also no evidence of limitation of ROM of hyperextension. The examiner identified the followings as factors attributing to functional loss following repetitive-use testing: less movement than normal and pain on movement for both knees. There was pain on palpation, but muscle strength and joint stability test results were “normal,” with no evidence of patellar subluxation/dislocation or any additional conditions (i.e. shin splints, stress fracture, chronic exertional compartment syndrome, leg length discrepancy, any other tibial/fibular impairment, meniscus (semilunar cartilage), meniscectomy, joint replacement, arthroscopy). As for any other pertinent symptoms, the examiner indicated “grinding of both knees with motion” but stated that there is no x-ray evidence of patellar subluxation. While occasional use of a cane was noted, no functional impact was found. 

During the March 2014 VA examination, he was diagnosed with osteoarthritis of the bilateral knees. He reported having undergone arthroscopy on the left knee around 1998, as well as constant knee pain and swelling, which tend to worsen during a flare-up. As for any functional impacts, the Veteran reported difficulty bending the knees, inability to drive long distances, and painful movement when switching from sitting to standing or lying to standing. His left knee flexion was to 90 degrees, with objective evidence of painful motion at 45 degrees, and there was no limitation of ROM for left knee extension. After repetitive use testing, he was able to perform, with no additional limitation of flexion, but the following factors were identified as contributing to his disability: less movement than normal, pain on movement, swelling, disturbance of locomotion, interference with sitting/standing/weight-bearing. There was evidence of pain. Regarding any functional limitations during a flare-up/after repeated use over a period of time, the examiner explained that there was no evidence of reduced ROM, fatigue, weakness, incoordination, or decrease in function with the Deluca measurements. His muscle strength for the left knee flexion and extension was each 5/5, and left knee anterior/posterior/medial-lateral instability were all normal. There was no evidence of patellar subluxation/dislocation, any additional conditions (shin splints, stress fracture, chronic exertional compartment syndrome, leg length discrepancy, any other tibial/fibular impairment, meniscus (semilunar cartilage), joint replacement). Also, as discussed briefly, although the examiner indicated that the Veteran had right knee arthroscopic surgery in 1998 or 1999, voluminous treatment records, to include arthroscopy surgical note from May 1999, indicate that he in fact underwent arthroscopic surgery for his left knee. He was noted to constantly use a cane to get out of a chair and walk and described having to stay in bed until swelling subsides as his functional impact. 

In August 2020, the Veteran was diagnosed with degenerative arthritis of the bilateral knees. He reported worsening bilateral knee pain, difficulty walking and having taken medications for 3 years. He also reported daily flare-ups that are of moderate severity, with each episode lasting for hours but alleviated by medications, as well as painful motion. His flexion was to 140 degrees, and extension to 0 degrees, with no evidence of crepitus. There was evidence of pain noted on exam and on rest. He was able to perform repetitive-use testing with at least three repetitions, with no additional loss of function or ROM. Although he was not examined immediately after repetitive use over time/during flare-ups, the examiner indicated that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and further identified pain as a factor affecting his functional loss. The examiner was able to describe in terms of ROM (flexion and extension to 90 degrees each). The examiner identified disturbance of locomotion, interference with standing, and inability to walk more than 5 minutes at a time as factors contributing to his disability. He manifested normal muscle strength, with no evidence of reduction in muscle strength/muscle atrophy/ankylosis. There was also no evidence of recurrent subluxation, lateral instability, or recurrent effusion for the knees. His joint stability was noted to be normal for anterior, posterior, medial, and lateral for the left knee. He was also not found to have any recurrent patellar dislocation, shin splints, stress fracture, chronic exertional compartment syndrome, leg length discrepancy, any other tibial/fibular impairment, or meniscus (semilunar cartilage) condition for either knee. There was objective evidence of pain on passive ROM/non-weight bearing testing for left knee. 

His treatment records also provide pertinent information relating to his left knee arthroscopy (see May 1999 VA operation/procedure report showing that the Veteran underwent left knee arthroscopy and was diagnosed with left knee synovitis; however, the physician at the time stated that his medical meniscus was stable with no tears when probed post-operation). Furthermore, his July 2016 radiograph of left knee shows no evidence of acute fracture or dislocation involving the left knee or obvious soft tissue swelling or defect (see also June 2018 VA treatment records, “no effusion for both knees. stable to valgus stress, Lachman stable. full extension, flexion to 120”). His May 2018 VA treatment records show worsening left knee pain, ambulation with a cane, mild posterior effusion, antalgic gait, and inability to actively flex his left knee.  

After reviewing all pertinent records, the Board finds that the Veteran does not warrant a rating in excess of 10 percent under DC 5260 for his left knee disability. Even when he was unable to be examined immediately after repetitive use over time/during flare-ups, his left knee flexion was described to be limited to 90 degrees (which was the worst limitation of motion of all ROM testing results or estimates for the left knee). He also consistently manifested normal muscle strength, with no evidence of muscle atrophy/ankylosis, and he was also able to perform post-repetitive use testing, with no additional limitation of flexion. Thus, the Board finds that the Veteran does not warrant a rating in excess of 10 percent under DC 5260.  

With regards to applicability of other DCs, the Board also concludes that DC 5256, 5259, 5261, 5262 (neither the pre-amended or the post-amended), and 5263 are not applicable, because there was no evidence of ankylosis, removal of semilunar cartilage, tibial or fibular impairments, medial tibial stress syndrome or shin splints, limitation of extension compensable under 5261, or genu recurvatum. 

With regards to the applicability of DC 5257, the Board finds neither the amended nor pre-amended version applicable. First, applying the criteria under the pre-amended version, the Board notes that there is neither objective nor subjective evidence of recurrent subluxation or lateral instability. Even though the Board acknowledges objective and subjective evidence of painful motion/some functional limitations involving motion, at no time during the appeal period did the Veteran report any symptoms indicative of such, and he was consistently found not to have recurrent subluxation and lateral instability (see May 2012, March 2014, and August 2020 VA examinations). The Board also emphasizes the fact that he was able to perform left knee flexion without any limitations post-repetitive use testing. 

The Board finds the amended version of DC 5257 also not applicable for the following reasons. First, there is no evidence of ligament tear (whether that be incomplete, unrepaired or failed repair, repaired complete) causing any instability. Throughout the VA examinations, he was also consistently found not to have any instability—not to mention persistent instability. Turning to the criteria enumerated for the “patellar instability” under DC 5257, the Board reiterates that arthroscopy is specifically excluded from the list of qualifying surgical repair for patellar instability. In this case, not only did the Veteran underwent an arthroscopy in the left knee (in May 1999), but the physician also indicated at the time that his medical meniscus post-operation was “stable with no tears” despite diagnosing him with left knee synovitis (i.e. knee pain involving inflammation) post-operation (see May 1999 VA operation/procedure report). Thus, in light of these findings, the Board finds either version of DC 5257 not applicable. 

Last, but not least, the Board also considered the applicability of DC 5258, but finds it not applicable. Notably, he was consistently not found to have any recurrent patellar dislocation throughout the appeal period. Although there is radiographic finding of left knee effusion (see July 2016 radiography of the left knee, showing small suprapatellar joint space effusion in the left knee; see also May 2018 VA treatment records documenting mild posterior effusion), as well as the Veteran’s report of swelling, that same radiographic finding showed no acute fracture or dislocation involving the left knee, nor of obvious soft tissue swelling or defect (see also June 2018 VA treatment records, “no effusion; stable to valgus stress; Lachman stable”). In addition, throughout the appeal period, he was consistently found to have normal muscle strength and normal joint stability, despite his use of assistive devices. Thus, to the extent that there is no evidence of any semilunar cartilage dislocation—despite objective and/or subjective findings of swelling/effusion and pain—the Board finds this not DC applicable. 

The Board also considered whether the Veteran would be entitled to a higher rating on the basis of DeLuca and its progeny but finds it not applicable. While the Veteran reported functional loss of difficulties with or inability to do any physical activities, such as prolonged walking, painful motion, and having to stay in bed until swelling subsides, these symptoms have been fully contemplated by the Veteran’s assigned schedular rating (ie. less movement than normal, weakened movement, and pain/movement). He was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or ROM afterwards. As such, the current rating adequately compensates him for his pain with some limited motion, and a higher rating is not warranted under DeLuca.

In summary, entitlement to a disability rating in excess of 10 percent for the Veteran’s left knee disability is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

6. Entitlement to a disability rating in excess of 10 percent for calcaneal spurs, left foot

7. Entitlement to a disability rating in excess of 10 percent for calcaneal spurs, right foot

As a result of the prior remand, the Veteran now has the following separate ratings: calcaneal spurs of the right and left foot, each rated as 10 percent, respectively, under DC 5276.  To the extent that the same facts and findings apply to these conditions, the Board will proceed its analysis under this one section for calcaneal spurs of the right and the left foot.  

Initially, the Board points out that the rating criteria was amended effective February 7, 2021, DC 5276 has not changed under the revised rating schedule. 

Under Diagnostic Code 5276, mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensable. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a.

Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104 (West 2014); 38 C.F.R. §§ 4.2, 4.6. 

During a March 2014 VA examination, the Veteran reported constant numbness/tingling/cold feet, and foot pain, as well as none of his medications alleviating his symptoms. The examiner indicated that there is no evidence of reduced ROM, fatigue, weakness, incoordination or decrease in function with his gait secondary to his bilateral degenerative changes in the feet. Imaging study showed bilateral degenerative/traumatic arthritis and mild bilateral hallux valgus of great toes. The Veteran was noted to have bilateral metatarsalgia, but no Morton’s neuroma, hammer toes, hallux valgus, hallux rigidus, claw foot, foot injuries, bilateral weak foot, or malunion or nonunion of tarsal or metatarsal bones. His functional impact was identified as inability to walk/stand for a prolonged period, and was found to regularly use cane due to his knees/ankles/back conditions. 

During the August 2020 VA examination, he was diagnosed with bilateral calcaneal spurs of the feet, and reported pain and medications not relieving his pain. He also reported moderate flare-ups occurring daily, with each episode lasting for couple hours, precipitated by walking. Bilateral pain on weight-bearing and the inability to walk for more than 5 minutes a time were identified as factors contributing to functional loss/limitation of motion. Although the examiner indicated that the Veteran makes constant use of a brace, occasional use of a cane and crutches, such were noted to be used for his back pain. There was objective evidence of pain on passive and active ROM testing/weight and non-weight bearing testing. His foot condition was found to require arch supports/custom orthotic inserts or shoe modifications and that his foot condition chronically compromises weight bearing. There was no evidence of any other feet conditions.  

His May 2014 radiographic finding of bilateral feet shows stable bilateral calcaneal enthesophytes, mild bilateral bunion formation and stable roughening around the base of both fifth metatarsals. 

After a review of all the evidence of record, the Board finds that the Veteran is not warranted a rating in excess of 10 percent for either foot condition under DC 5276. Although the Board acknowledges his condition requiring arch supports, accompanied by moderate flare-ups lasting couple hours per episode, as well as pain on weight bearing and limited ability to walk/stand at a time, there was no evidence of marked deformity, to include pronation and abduction, nor swelling on use, and there was also no evidence of fatigue, incoordination or decrease in function with his gait related to his either foot condition. Even taking into consideration his pain, functional impairment and flare-ups, the Board finds that the extent of pain on manipulation and limitation of motion have already been taken into consideration in the Veteran’s current 10 percent rating under DC 5276. Thus, the higher rating claims for the right and left foot disabilities are denied. 

The Board has also considered whether an increased rating greater than 10 percent is warranted under other diagnostic codes pertaining to the foot. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, as the evidence does not reflect diagnoses of weak foot, claw foot, hallux rigidus, hammer toe, malunion of the tarsal or metatarsal bones, or other foot injuries, an increased evaluation is not warranted under those diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5278, 5281, 5282, 5283, 5284. 

Calcaneal spurs do not have a specific diagnostic code, so the condition has been evaluated under DC 5276, as it results in impairment similar to flat feet, such as use of arch supports.  DC 5284 is a general DC under which a variety of foot injuries may be rated. The plain meaning of the word “injury” limits the application of DC 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by degenerative conditions.  See Yancy v. McDonald, 27 Vet. App. 484 (2016) (rejecting an argument that DC 5284 is a “catch-all provision” and holding that the Secretary’s interpretation of “injury” was entitled to deference). However, unlisted foot conditions still may be rated under DC 5284 by analogy. Id.  Here, even rating the Veteran’s calcaneal spurs under DC 5284 would not result in a higher rating.  To warrant a higher rating, he would have to have symptoms and functional impairment consistent with a moderately severe condition, which he does not have. As discussed in more detail above, the objective findings simply do not show such a level of impairment.

Additionally, although new DC (5269 for plantar fasciitis for unilateral/bilateral plantar fasciitis or for no relief from both non-surgical and surgical treatment) was added under the revised rating schedule, there is no evidence of plantar fasciitis. See March 2014 and August 2020 VA examinations. 

In terms of whether the Veteran warrants referral for extraschedular consideration, the Board finds such not applicable. Although there is evidence showing functional impairment of inability to stand/walk for more than 5 minutes, potentially suggestive of marked interference with employment. However, as the rating schedule for musculoskeletal system as a whole is capable of assessing the Veteran’s alleged symptomatology (i.e. limitation of motion, functional loss and painful motion), the Board finds such referral not applicable.   

In summary, entitlement to a disability rating in excess of 10 percent for the Veteran’s right and left foot condition is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

8. Entitlement to a TDIU

The Veteran submitted a statement in October 2014, stating that his service-connected conditions have gotten severely worse since 2005 to the point that he is no longer gainfully employed. He also alleged having missed a considerable amount of work in the past 9 years due to his service-connected disabilities. See October 2014 correspondence. Recently, the Veteran submitted another statement, claiming that work has been a daily struggle due to his pain associated with his service-connected disabilities, and further noted that he has received counseling for mistakes on several occasions and that he is at the point of feeling as though he will be terminated from work. 

Initially, the Board notes that the Veteran has multiple service-connected disabilities, with at least one disability rated 40 percent or more, with a combined rating of 70 percent or higher throughout the appeal period. He meets the schedular TDIU criteria under 38 C.F.R. § 4.16(a).  Therefore, a TDIU is warranted if the evidence shows that he has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, considering his specific educational and employment background, but without regard to age, non-service connected disabilities, or previous unemployability status. See 38 C.F.R. §§ 4.16(a), 4.19.

However, the Board finds TDIU is not warranted as it appears that the Veteran was working full-time throughout the appeal period despite his contention that his service-connected disabilities hindered him from substantially gainful work. His VA 21-8940 forms list that he was working full-time from September 28, 2013 to May 30, 2014 and from September 30, 2014 to the present (as a full-time “CSR”/intake specialist at the Time Warner Cable and the RxCross Roads). It also seems that the Veteran was employed for the period that he did not specify in the VA 21-8940 forms: prior to September 28, 2013 (see October 2012 VA treatment records, “working for Humana-pharmacy tech”; see April 2012 VA treatment records, the Veteran claiming that he never received the completed FMLA form and that this may cost him his job”), and in between May 31, 2014 and September 29, 2014 (June 2014 VA treatment records, “trying to get SSI and retire from work; he is back at work in customer service”; July 2014 VA treatment record, “have to take off work early,” September 2014 VA treatment records, “patient was under my care/clinic appointment on September 17, 2014. May return to work on September 18, 2014”; “follow-up visit for asthma, avoids trigger but unable to avoid everything at work”).  On his recent September 2020 VA Form 8940, he indicated he was still working because he did not want to be homeless.

Although the Board acknowledges the Veteran’s contention that he was not gainfully employed as he has lost significant amount of time due to his illness (approximately either 120 or 200 days lost due to illness from September 30, 2014 to the present, see June 2019 VA 21-8940 forms), the fact that he has been able to continue working full-time throughout the appeal period tends to weigh heavily against the Veteran’s contentions that his service-connected disabilities prevented him from securing or following any substantially gainful occupation.  His employer since 2014 has indicated that no concessions have been made to him based on any disabilities – although he did submit a list that looks like he has taken time off under FMLA.  Even if he has missed time from work because of his service-connected conditions, that is the whole point of the rating schedule – to compensate for impaired earnings capacity – and the fact he has had an 80-90 percent combined disability rating since 2014 is recognition of a significant impact on his ability to work.  However, he has submitted no evidence that this lost time has resulted in lost earnings such that his employment is not gainful.  In fact, on his most recent Form 8940, he reported earning over $25,000 in 2019 despite supposedly losing 200 hours from work.  On the Form 8940 he submitted in 2019, he reported earning over $25,000 in 2018, and an income of $25,000 in the Time Warner job in 2013-14.  Therefore, although it is certainly credible that he has missed work time, there is no showing this has reduced his income to a marginal level, and his high combined disability rating is meant to compensate him for any reduced earnings as a result of missing time from work. 

In light of above, the Board regrettably finds that the Veteran is not entitled to a TDIU.  Although he feels that, hypothetically, he may be terminated from his job, he continues to remain gainfully employed, and TDIU is a benefit for veterans who are unable to obtain or maintain gainful employment. 

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Lee

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.