Citation Nr: 21032437 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 10-42 132 DATE: May 27, 2021 ORDER Entitlement to a 10 percent rating for degenerative arthritis of the right ankle is granted. Entitlement to a compensable rating for a right foot bone spur is denied. Entitlement to a 20 percent rating for degenerative arthritis of the left shoulder is granted. Entitlement to a 20 percent rating for degenerative arthritis of the thoracolumbar spine for the appeal period prior to August 19, 2020, but no higher is granted. Entitlement to a rating in excess of 40 percent for degenerative arthritis of the thoracolumbar spine effective August 19, 2020 is denied. Entitlement to service connection for pes planus is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's right ankle degenerative arthritis manifested in moderate limitation of range of motion even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without marked limitation of motion, ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy. 2. The Veteran's right foot bone spur manifested as foot pain without limitation of motion. 3. Throughout the period on appeal, the Veteran's degenerative arthritis of the left (minor, non-dominant) shoulder manifested as limitation of arm motion to shoulder level without limitation of motion midway between the side and shoulder level or arm to 25 degrees from the side even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, dislocations, fibrous union of the humerus, nonunion of the humerus, loss of head of the humerus or ankylosis. 4. For the appeal period prior to August 19, 2020, the Veteran's degenerative arthritis of the thoracolumbar spine manifested abnormal spinal contour without forward flexion of the thoracolumbar spine limited to 30 degrees or less, even in contemplation of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement, repetitive motion, or flare-ups, ankylosis, intervertebral disc syndrome with incapacitating episodes, nerve impairment or bowel or bladder impairment. 5. For the appeal period beginning on August 19, 2020, the Veteran's degenerative arthritis of the thoracolumbar spine manifested as forward flexion of the thoracolumbar spine less than 30 degrees without ankylosis, intervertebral disc syndrome with incapacitating episodes, nerve impairment or bowel or bladder impairment. 6. The Veteran's pre-existing pes planus of the right foot was not aggravated beyond its natural progression by active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent rating for degenerative arthritis of the right ankle have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5271. 2. The criteria for entitlement to a compensable rating for a right foot bone spur have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5015. 3. The criteria for entitlement to a 20 percent rating for degenerative arthritis of the left shoulder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5201. 4. The criteria for entitlement to a 20 percent rating for degenerative arthritis of the thoracolumbar spine for the appeal period prior August 19, 2020, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5242. 5. The criteria for entitlement to a rating in excess of 40 percent for degenerative arthritis of the thoracolumbar spine effective August 19, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5242. 6. The criteria for entitlement to service connection for pes planus have not been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1986 to September 1986, and then again from March 1989 to July 31, 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board further notes in passing that whereas the RO appears to have previously granted staged rating increases effective upon receipt of a reopened claim received February 16, 2012, the October 2009 rating decision was never rendered final. See NOD (rec'd Dec. 7, 2009). The Veteran's claims were previously before the Board on two occasions. See (First) BVA Remand (May 10, 2016); (Second) BVA Remand (Oct. 4, 2017). In short, the claims were remanded the first time to ensure that the Veteran could be scheduled for a requested hearing. A hearing was scheduled and the Veteran did not attend the hearing, but it was not clear as to whether the Veteran received sufficient notice of the scheduled hearing date. The Veteran was then informed by correspondence dated April 25, 2017 that his hearing was scheduled for May 9, 2017. See Correspondence ( Apr. 25, 2017 ). The Veteran once again failed to appear for the hearing; meanwhile, the Veteran never communicated any reason as to why his absence should be excused, did not request that the hearing be rescheduled and no notices were returned as undeliverable. For these reasons, the Board reasserted jurisdiction in October 2017. Nevertheless, the claims were remanded for a second time so that updated VA examinations could be taken and so that the Board could fairly adjudicate the severity of the disorders with recent evidence. See, e.g.: Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board has reviewed the updated VA examinations, and determines that they are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran was most recently issued a Supplemental Statement of the Case (SSOC) on February 9, 2021. The Board accordingly concludes that the Veteran has been afforded substantial compliance with previous remand directives, see Stegall v. West, 11 Vet. App. 268, 271 (1998), and jurisdiction is once again proper before the Board. As of the previous Board remand, the Veteran's disorders that are currently in appellate status were rated thusly: bone spur of the right foot, noncompensable since August 1, 2009; arthritides of the right ankle, left shoulder, and thoracolumbar spine, each noncompensable from August 1, 2009 until prior to February 16, 2012, and each 10 percent disabling thereafter. The Veteran was subsequently awarded the following staged rating increases: for the left shoulder, 20 percent effective May 23, 2016; for the back, 40 percent effective August 19, 2020. As higher ratings exist throughout the period on appeal, the claims, as recharacterized on the title page, remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative allege that he is unable to secure and maintain substantially gainful employment. Indeed, the record shows he has been employed at VA during the appeal period. The issue of a TDIU does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (finding that where there was no evidence indicating unemployability, and with the record suggesting the opposite, i.e. that the Veteran was employed, a TDIU claim was not raised.) As such, a Rice claim is not raised. The issue of entitlements to higher ratings for the right ankle, right foot bone spur, left shoulder, and lumbar spine, while the Veteran otherwise has a TDIU for PTSD, can sometimes raise the issue of derivative entitlement to SMC under 38 U.S.C. § 1114(s). VA has a duty to maximize benefits and policy to consider entitlement to SMC where applicable. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); AB, 6 Vet. App. 35 at 38; Bradley v. Peake, 22 Vet. App. 280 (2008). See also 38 C.F.R. § 3.103(a) (noting VA's obligation to "render a decision which grants every benefit that can be supported in law"). The Veteran already receives SMC effective August 19, 2020, which is when the Veteran's total rating for PTSD as well as his other service-connected disorders combined for a 60 percent rating, but not prior. As to be discussed below, the Board has granted some rating increases, but these grants do not evince entitlement to SMC any earlier than what is already awarded. As a result, Bradley is not for application here. See also Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their 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. While a veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court of Appeals for Veterans Claims (Court) has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. VA amended the criteria for rating musculoskeletal disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the Agency of Original Jurisdiction (AOJ) on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. These February 7, 2021 amendments do not appear to present any changes to the rating criteria for Diagnostic Codes 5015 or 5242. Changes for Diagnostic Code 5201 include definitions of "at shoulder level" and "midway between side and shoulder level" in terms of degrees, while the changes for Diagnostic Code 5271 (the ankle) include definitions of "moderate" and "marked" limitations of range of motion in terms of degrees. Compare 38 C.F.R. § 4.71a (December 29, 2020) with 38 C.F.R. § 4.71a (Feb. 7, 2021). Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to a 10 percent rating for degenerative arthritis of the right ankle effective August 1, 2009, but no higher and no earlier, is granted. By way of background, the Veteran's right ankle arthritis has been rated as noncompensable effective prior to February 16, 2012, but 10 percent disabling thereafter, under Diagnostic Code 5015, 38 C.F.R. § 4.71a. As indicated above, even though the Veteran's staged rating increase appears to coincide with a "reopening" of the claim, the Board notes that the October 2009 rating decision has never been rendered final because the Veteran has continuously prosecuted his claim. The Veteran generally contends that a higher rating is warranted for his right ankle disorder. Specific argument in support of this appeal has not been presented. A 10 percent rating is awarded for "moderate" limitation of motion; a 20 percent for "marked." 38 C.F.R. § 4.71a, Diagnostic Code 5271 (1997). The normal range of motion in the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. See 38 C.F.R. § 4.71, Plate II. Notably, the terms "moderate" and "marked" were previously not defined under VA regulations. Those terms also did not appear to have a generally accepted medical definition. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under the revised diagnostic code, marked limitation of ankle motion constitutes less than five degrees of dorsiflexion or less than 10 degrees of plantar flexion while moderate limitation of ankle motion constitutes less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (effective Feb. 7, 2021). Also included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate ankle disabilities based on other manifestations, including Diagnostic Code 5270 (ankylosis of the ankle), Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint), Diagnostic Code 5273 (malunion of the os calcis or astragalus), and Diagnostic Code 5274 (astragalectomy). None of the above apply to the Veteran. Diagnostic Code 5003 directed a rating as traumatic arthritis. In Diagnostic Code 5003, a 10 percent rating was awarded with X-ray evidence of involvement of two or more major joints or two or more minor joint groups; a 20 percent rating was awarded when the disorder manifests in occasional incapacitating episodes. Under the amended diagnostic code, post-traumatic arthritis is to be rated as limitation of motion, dislocation or other specified instability under the affected jointnamely, in this case, Diagnostic Code 5271 as discussed above. See also 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2020). The Veteran's claim for an increased rating for his right ankle disorder was remanded in May 2016 (to ensure that proper notice of a hearing was afforded to him) and October 2017 (confirming that the hearing request was withdrawn, but still requiring updated VA examinations). The Veteran then submitted to updated VA examinations on August 19, 2020. See VA Exams ( Aug. 19, 2020 ) (rec'd Nov. 12, 2020). The Board concludes that the examination is compliant with Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016); therefore, the Veteran has been afforded substantial compliance with previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2020 VA examination confirmed that the Veteran's left ankle (i.e.: the opposite joint) is undamaged, and that there was no evidence of pain on passive range of motion testing, or else in non-weight bearing. See VA Exam (Aug. 19, 2020), at Page 18, Question No. 14. See also Correia, supra. Furthermore, the Veteran specifically denied that his right ankle is subject to flare-ups. See VA Exam (Aug. 19, 2020), at Question No. 2b. This affirmative negative finding is compliant with the holding in Sharp v. Shulkin, supra. Ultimately, this most recent, post-remand August 2020 examination confirms that the Veteran's dorsiflexion is limited to 20 degrees at worst; his plantar flexion is limited to 40 degrees at worst. See VA Exam (Aug. 19, 2020), at Question No. 3 et seq. These results fully contemplate additional loss of range of motion based on repetitive use (in this case, none was observed); meanwhile, the Veteran stated that his ankle is not subject to flare-ups. The Board concludes that as this examination suggests some additional loss of range of motion throughout the period on appeal, cf., e.g.: VA Examination ( Feb. 16, 2012 ), at Question No. 4a-b (dorsiflexion 15 degrees, but plantar flexion not less than 45 degrees), the Veteran is still not entitled to a 20 percent rating at any time on appeal. A higher rating than 10 percent at any time is not warranted as the record does not establish marked limitation of motion in the right ankle. As noted above, right ankle manifested as dorsiflexion has never been observed as limited to less than 15 degrees, while plantar flexion has never been observed as limited to less than 40 degrees. Accordingly, the Board finds that the Veteran's minimal degenerative joint disease of the right ankle manifested, at most, in a moderate limitation of range of motion even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. The new diagnostic code is not more advantageous than the old diagnostic code, but as the 10 percent staged rating appears to be associated with a "reopening" of a claim that was never final, the Board concludes that a 10 percent rating is warranted effective August 1, 2009, but no higher and no earlier. The Board has also considered whether an increased or separate rating may be assigned under alternative diagnostic codes pertaining to disability of the ankle. The Veteran has not alleged, and the record has not shown, ankylosis of the ankle and Diagnostic Code 5270 is therefore not applicable. Diagnostic Code 5273 pertains to malunion of os calcis or astragalus, which has not been shown at any time during the appeal or alleged by the Veteran. Finally, as there is no evidence that the Veteran's talus bone has been removed, Diagnostic Code 5274 for astragalectomy is not applicable. Thus, the Veteran is not entitled to an increased or additional rating under Diagnostic Code 5270, 5272, 5273, or 5274. While the Board recognizes that the Veteran is competent to describe his symptomatology and resulting functional difficulties, he is not competent to provide an opinion regarding the severity or etiology of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such in light of the rating criteria to be more persuasive than his own reports regarding the severity and etiology of his disability. The Board has also considered whether a staged rating under Fenderson, supra, is appropriate for the Veteran's minimal degenerative joint disease of the right ankle; however, the Board concludes that none such are appropriate. Further, neither the Veteran nor his attorney have raised any other issues nor have any other issues been reasonably raised by the record, in regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Based on the foregoing, the Board finds that reasonable doubt should be resolved in the Veteran's favor to establish a rating of 10 percent for the Veteran's minimal degenerative joint disease of the right ankle effective August 1, 2009, but no higher and no earlier. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. To this extent only, the claim is granted; however, to the extent that any further claim herein remains, it is denied. 2. Entitlement to a compensable rating for a right foot bone spur is denied. The Veteran has been service-connected for a bone spur in the right foot since August 1, 2009 (the day after discharge) and it has been rated as noncompensable throughout the period on appeal. The bone spur is rated as a benign neoplasm of a bone, 38 C.F.R. § 4.71a (2020; 2021), and the Diagnostic Codes (both prior to and effective the February 7, 2021 amendments) both instruct that this disorder should be rated as degenerative arthritis based on limitation of motion of affected parts. As noted above, the Veteran's right foot was afforded an updated examination in August 2020. See VA Exam (pes planus) (Aug. 19, 2020), supra. The Veteran's bone spur in his right foot does not appear to yield any symptomatology that is not already contemplated by a 10 percent rating throughout the period on appeal. To the extent that the bone spur may cause pain with ambulation and standing, see VA Exam (Aug. 19, 2020), at Question No. 18, a 10 percent rating is the minimum rating for arthritis, see 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5015; see also Saunders v. Wilkie, 886 F.3d 1356 (2018). The examiner also concluded that even though the Veteran's bone spur has been service-connected since August 1, 2009, it does not aggravate his pes planus, which is not service connected see supra. Furthermore, the bone spur does not appear to yield symptomatology not already contemplated by limitations of range of motionwhich, as delineated above, is moderate at most severe. See supra. Finally, to the extent that the Veteran also suffers from service-connected osteoarthritis of the bilateral metatarsophalangeal joints, this claim is not on appeal. See supra. For all of these reasons, the Board concludes that there is simply no evidence of record that identifies any other separate symptomatology that can be attributed to the bone spur, separate and apart from symptomatology of right ankle arthritis with that associated pain and that any additional compensation based upon the bone spur would constitute impermissible pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has also considered the application of Diagnostic Code 5284 for "other" foot injuries. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). However, as the Veteran is currently in receipt of a rating based on right foot and ankle symptomatology affecting his right foot, it would be tantamount to pyramiding to award a separate rating under Diagnostic Code 5284 for the same symptomatology. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Moreover, the August 2020 VA examiner determined that the Veteran had a foot injury that was not already described, which was identified as MTP arthritis. The Board notes that the Veteran is already service connected for osteoarthritis of the right first MTP joint. The Board has also considered whether higher or separate ratings are warranted under any other potentially applicable Diagnostic Code. The record does not establish, and the Veteran has not alleged, that he suffers from weak foot, acquired pes cavus (clawfoot), Morton's neuroma, hallux valgus, hammer toes or malunion or nonunion of tarsal or metatarsal bones, Therefore, higher or separate ratings under Diagnostic Codes 5277, 5278, 5279, 5280, 5282, or 5283 respectively, are not warranted. The Board notes that while the Veteran has been diagnosed with pes planus, service connection for such disability is being denied herein. As previous noted, the Veteran is already in receipt of a separate rating under Diagnostic Code 5281 for osteoarthritis of the right first MTP joint. While the Board recognizes that the Veteran is competent to describe his symptomatology and resulting functional difficulties, he is not competent to provide an opinion regarding the severity or etiology of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, supra. Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such in light of the rating criteria to be more persuasive than his own reports regarding the severity and etiology of his disability. The Board has also considered whether a staged rating under Fenderson, supra, is appropriate for the Veteran's right foot calcaneal spur; however, the Board concludes that none such are appropriate. Further, neither the Veteran nor his attorney have raised any other issues nor have any other issues been reasonably raised by the record, in regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, supra. Based on the foregoing, the Board finds that a compensable rating for a right foot calcaneal spur is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. The appeal is denied. Entitlement to a 20 percent rating for degenerative arthritis of the left shoulder effective August 1, 2009, but no higher and no earlier, is granted. The Veteran's left shoulder that is on appeal is his minor (non-dominant) arm. The service-connected non-dominant shoulder disorder has been service-connected as non-compensable to February 16, 2012, then 10 percent disabling thereafter until May 23, 2016, and then 20 percent disabling thereafter. The claim for increased ratings has been continuously prosecuted since the initial rating decision; as higher ratings exist throughout the period on appeal, the claims, as recharacterized on the title page, remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Disabilities and injuries of the shoulder are evaluated under Diagnostic Codes 5200, 5201, 5202 and 5203. See 38 C.F.R. § 4.71(a). The Veteran was duly examined after remand in August 2020, see VA Exam ( Aug. 19, 2020 ), and the evidence therein confirms that the Veteran's left shoulder disorder does not manifest in ankylosis, nor impairments of the clavicle, scapula, or humerus. See id. at Questions Nos. 5, 8, and 9. Respectively, as such, Diagnostic Codes 5200, 5203, and 5202 are inapplicable, leaving only Diagnostic Code 5201, under which the Veteran's shoulder has been rated since discharge, as detailed above. Under Diagnostic Code 5201, for the minor side, a 20 percent rating is warranted for limitation of arm motion to shoulder level; a 20 percent rating is also warranted for limitation of arm motion to midway between the side and shoulder level; and a maximum 30 percent rating is warranted for limitation of arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2020). Effective February 7, 2021, 20 percent rating is warranted for limitation of flexion or abduction to 90 degrees; a 20 percent rating is also warranted for limitation of flexion or abduction 45 degrees; and a maximum 30 percent ratingas consistent with the old rating criteriais still warranted for limitation of arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2020). Normal forward flexion of the shoulder is zero to 180 degrees; abduction is zero to 180 degrees; and internal and external rotation are from zero to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Forward flexion and abduction to 90 degrees amounts to shoulder level. The Veteran's shoulder was most recently examined in August 2020. These examination results confirm that abduction of the left shoulder is limited to 90 degrees at worst, after accounting for further limitations of range of motion due to repetitive use. See VA Exam (Aug. 19, 2020), at Question No. 3 et seq. The Veteran also specifically denied that his left shoulder is subject to flare-ups. See id. at Question No. 2c; Sharp v. Shulkin, supra. The Board notes that the Veteran appears to have been given a 20 percent rating effective May 23, 2016 because even though "[a] review of outpatient treatment reports show from January 30, 2014, you had reduced range of motion in your left shoulder[,] [...] Evaluation of degenerative arthritis of the left shoulder, which is currently 10 percent disabling, is increased to 20 percent effective May 23, 2016, the date a Policy Decision was effective that allowed for a minimum evaluation based upon painful range of motion. (38 C.F.R. § 3.400, 38 C.F.R. § 4.59." See Rating Decision (Feb. 9, 2021), at Pages 5-6; SSOC (Feb. 9, 2021), at Pages 8-9. After a careful review of the record, the Board concludes that the first available evidence of loss of range of motion of the left shoulder actually appears in the Veteran's medical records as early as April 2012predating 2014 as previously identified. See VA Medical Records ( Apr. 6, 2012 ) (rec'd Aug. 26, 2014), at Page 86 ("rom good decreased in lt shoulder and rt ankle"). As a result, even though there is no indication as to what the Veteran's reduced range of motion was in his left shoulder at that time, the Board resolves all doubt and concludes that the evidence is at least evenly balanced to suggest that the range of motion is "shoulder level" since August 1, 2009. This means that the Board grants a rating of 20 percent since August 1, 2009, but no higher and no earlier. To this extent only, the claim is granted; for the reasons below, all further portions of this claim are denied. In the Board's denial of a rating in excess of 20 percent at any time for the left shoulder, the Board concludes that there is no evidence that the Veteran's left shoulder has ever been as limited as 25 degrees from the side in either flexion or abduction. See, e.g.: VA Examination (Aug. 19, 2020), supra. Under the old criteria (prior to the February 7, 2021 amendments), the minor arm is afforded the same 20 percent rating for "at shoulder level" and "midway between side and shoulder level." In other words, a finding of 25 degrees or less is required for a rating in excess of 20 percent for the minor shoulder in both the old and new criteria. 38 C.F.R. § 4.71a, Diagnostic Code 5201. With regard to the DeLuca factors, the Board observes that the VA examining physicians and clinicians, have noted the Veteran's complaints such as pain, and the Board has taken those complaints into consideration in its above discussion. However, the Board finds that the evidence does not support a finding that the Veteran's functional loss causes additional disability that approximates a rating in excess of 20 percent for the left shoulder at any time on appeal. In reaching its conclusions, the Board acknowledges the Veteran's belief that his symptoms are more severe than the current disability rating reflects. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, supra. The Board finds the medical evidence in which professionals with medical expertise examined the Veteran's disability, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such condition. The Board has considered whether a staged rating under Hart, supra, is appropriate for the Veteran's service-connected left shoulder injury with limitation of movement however, the Board finds that the currently assigned rating for his left shoulder has been stable throughout the appeal. Therefore, assigning a staged rating is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, supra. Ultimately, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for residuals of a left shoulder injury with limitation of movement at any time since August 1, 2009. Therefore, while the claim for a 20 percent rating is granted effective August 1, 2009, but no higher and no earlier, the benefit of the doubt doctrine is only applicable to that extent. For a rating in excess of 20 percent, the benefit of the doubt doctrine is not applicable and the remainder of the Veteran's claim for an increased rating is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. Entitlement to a 20 percent rating for degenerative arthritis of the thoracolumbar spine from August 1, 2009 to August 19, 2020, but no higher, is granted. 4. Entitlement to a rating in excess of 40 percent for degenerative arthritis of the thoracolumbar spine effective August 19, 2020 is denied. The Veteran's thoracolumbar spine degenerative arthritis is currently rated as noncompensable prior to February 16, 2012, then 10 percent disabling thereafter to August 19, 2020, and finally 40 percent disabling thereafter. This disorder is rated under Diagnostic Code 5242. 38 C.F.R. § 4.71a. VA regulations provide that spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine orif applicablethe Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, under Diagnostic Code 5243, whichever would result in a higher rating. 38 C.F.R. § 4.71a. The Veteran appears to have never been diagnosed with IVDS during the appellate period, see, e.g.: VA Exam (Aug. 19, 2020), at Section XI; therefore, the Board shall not evaluate the Veteran's lumbar spine disorder under Diagnostic Codes 5243, and instead limit the analysis under Diagnostic Code 5242. As Diagnostic Code 5242 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). 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 for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, 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. 38 C.F.R. § 4.71a. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. 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. Id. 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 38 C.F.R. § 4.71a, Note (1). The current spine rating criteria provide specific values for range of motion of the cervical and thoracolumbar (thoracic and lumbar) spine. 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 38 C.F.R. § 4.71a, Note (2) (see also Plate V). The Board notes that upon initial examination, the Veteran was already diagnosed with "slight levoscoliosis." See VA Exam ( May 28, 2009 ), at Page 5 of 13. The Board shall resolve all reasonable doubt in the Veteran's favor, and conclude that this satisfies a 20 percent rating criterion at all times prior to August 19, 2020. While the Veteran was afforded a 40 percent rating effective August 19, 2020 based upon results of a VA examination, see VA Exam (Aug. 19, 2020), at Question No. 3a, there is simply no evidence of record that the Veteran's thoracolumbar spine arthritis has ever manifested in forward flexion of 30 degrees or less. See, e.g.: VA Medical Record ( Nov. 2, 2018 ) ("Mild degenerative changes are present in the thoracic spine"). Similarly, the August 2020 examinations that were ordered in the most recent remand, see Snuffer, supra, are the first VA examinations that evaluate the Veteran's spine disability after the initial exam. There is no evidence that the spine disorder has ever manifested in flare-ups, see VA Exam ( Aug. 19, 2020 ), at Question No. 2b, nor ankylosis nor IVDS, see id. at Question Nos. 9 and 11. Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. In this case, the VA examiners did not test the opposite joint; however, the spine does not have an opposite joint. See Correia v. McDonald, supra. Additionally, as noted previously, the Veteran is not prejudiced by any failure to consider effects of flare-ups under Sharp, because the Veteran denied that his spine disorder has manifested in flare-ups at any time. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); 38 C.F.R. §§ 4.40, 4.45, such considerations do not appear to apply in this case. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Ultimately, the Veteran's claim was previously remanded so that the AOJ could administer one more examination to more fairly adjudicate the Veteran's disorders, which had not been examined at any time after the initial examinations. See BVA Remand (Oct. 4, 2017). The Board concludes that this has taken place and that this examination is adequate. See VA Exam (Aug. 19, 2020). The Board ultimately concludes that there is no evidence of record to suggest forward flexion 30 degrees or less at any time prior to August 19, 2020, or ankylosis at any time. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required pursuant to Stegall). Furthermore, as the evidence fails to show that the Veteran has intervertebral disc syndrome with incapacitating episodes resulting in bed rest ordered by a physician at any point pertinent to the appeals period, a higher or separate rating is not warranted under the intervertebral disc syndrome Rating Formula. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The most recent VA examination of record concludes that there are no such neurologic abnormalities. See id. at Question No. 10. However, the Veteran has not alleged, and the evidence does not show, that he has bladder impairment, bowel impairment, left lower extremity nerve impairment or right lower extremity nerve impairment as a result of his service-connected degenerative arthritis of the thoracolumbar spine. Therefore, the Board finds that, at no time during the appeal period, has the Veteran's service-connected degenerative arthritis of the thoracolumbar spine resulted in neurological impairment of the lower extremities, bowel or bladder warranting an additional separate rating. Alternatively, the Board concludes that among the VA examinations of record as recounted above and the Veteran's voluminous medical history as available to the Board for appellate review, any perceived failure to afford the Veteran substantial compliance with all previous remand directives would not reasonably raise a likelihood of an entitlement to an increased rating. There is no evidence suggesting any possible entitlement to ratings higher than 20 percent prior to August 19, 2020 under Sharp, DeLuca, Mitchell, Correia, or otherwise as pertaining to range of motion. Otherwise, at all times on appeal, i.e.: since August 19, 2020, the Veteran has received a maximum schedular rating for the thoracolumbar spine as predicated upon limitation of range of motionin this case, 40 percent. Only a finding of ankylosis could yield ratings in excess of 40 percent. As a result, any perceived failure of substantial compliance would be predicated on a remand directive upon which there is no basis for remand. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.71a, Diagnostic Codes 5242. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). Under these circumstances, further development would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991); Stegall, supra. But cf. Snuffer, supra; Allday, supra. Given the above, with respect to the service-connected lumbar spine disability, further examination or opinion is unnecessary. See also Sabonis v. Brown, supra (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). In assessing the severity of the Veteran's residuals of his thoracolumbar spine disorder, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board has considered whether further staged rating under Hart, supra is appropriate; however, the Veteran is already in receipt of a staged rating to reflect adequate compensation throughout the period on appeal. Therefore, assigning any further staged ratings beyond as already assigned is not warranted. The Veteran and/or his agent has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, supra. For the foregoing reasons, the Board grants the Veteran's claim for a 20 percent rating for his thoracolumbar spine disorder at all times prior to August 19, 2020, but no higher, on the basis of an initial finding of levoscoliosis. To this extent only, the Veteran's claim is granted. As the preponderance of the evidence reflects that the Veteran's symptoms do not more nearly approximate the criteria for a rating higher than 20 percent at any time prior to August 19, 2020, or else higher than 40 percent at any time thereafter, the benefit of the doubt doctrine is not for application in this regard. The remainder of the Veteran's claim is therefore denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 5. Entitlement to service connection for pes planus is denied. A veteran is presumed sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To be "noted" within the meaning of the statute and regulation, the condition must be recorded in the entrance examination report. Id. When a preexisting injury or disease has been noted, the veteran cannot bring a claim for service connection for that disorder, but instead may file a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The application of the presumption of aggravation is not automatic, but first requires a showing by the veteran of a permanent worsening of a preexisting condition during the relevant period of service. See Hill v. McDonald, 28 Vet. App. 243, 253 (2016) (citing Wagner, 370 F.3d at 1096). Once aggravation has been demonstrated, the burden then shifts to VA to show by clear and unmistakable evidence that the aggravation was not causally related to service. The Veteran's enlistment examination dated February 16, 1989 notes a diagnosis of mild asymptomatic pes planus. See STR ( Feb. 16, 1989 ), at Question No. 36. Because this disability was noted upon examination at the time of entry into service, the presumption of soundness does not attach as to that disability. Thus, the inquiry in this case is whether (1) the Veteran's pre-existing pes planus increased in severity during service, and (2) if so, whether it is clear and unmistakable that the increase is due to the natural progression of the disease. 38 U.S.C. § 1153. See also VA Exam (Aug. 19, 2020) (rec'd Nov. 12, 2020 ), at Question No. 3b. After the most recent remand, the AOJ procured an etiological opinion as to whether it is clear and unmistakable that the Veteran's pes planus is no more severe than due to the natural progression of the disorder. The examiner of record concluded that it is, in fact, clear and unmistakable that the Veteran's pes planus is no more severe than due to the natural progression of the disorder. See VA Exam ( Feb. 3, 2021 ), at Question No. 5b. The examiner based their conclusion to this effect upon observations that after mild and asymptomatic pes planus was noted in service, the Veteran never complained of foot pain relative to his arch; meanwhile, at a separation examination that elucidated diagnoses of bilateral metatarsophalangeal degenerative joint disease and the right foot bone spur, there was no evidence of foot pain related to pes planus, while the examiner merely noted "loss of longitudinal arch with no significant symptoms or evidence of pronation." See id. The Board concludes that the February 2021 opinion is highly probative as it was prepared by a skilled, neutral medical professional after a review of the relevant medical records and are supported by complete rationales. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Nieves Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470,71 (1993). There is no contrary opinion of record. Ultimately, as recounted above, the Board has thoroughly reviewed the evidence of record and the Veteran's arguments, and while service connection is precluded for the preexisting pes planus disorder, there is also no evidence of an in-service event, injury, or disease to counter the examiner's theory that aggravation beyond the natural progression of the disability is clearly and unmistakably not present. See Wagner v. Principi, supra; 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) (applying Scott to a duty to assist argument). Ultimately, the Veteran's claim for service connection for pes planus was remanded for opinions on aggravation, and adequate opinions were duly obtained and associated with the claims file for Board review. Accordingly, the preponderance of evidence is against a finding that the Veteran's pre-existing pes planus was aggravated by service. For the reasons above, the benefit of the doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.