Citation Nr: 21032776 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-26 717 DATE: May 27, 2021 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is granted. Entitlement to service connection for headaches, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for a right arm disability, to include as secondary to service-connected disabilities, is denied. Entitlement to an initial evaluation in excess of 20 percent for degenerative arthritis of the spine is denied. Entitlement to an evaluation in excess of 10 percent of right knee chondromalacia patella is denied. Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia patella status post arthroscopic surgery is denied. REMANDED Entitlement to service connection for fibromyalgia, to include as secondary to service-connected disability lumbar spine disability and bilateral knee disabilities, is remanded. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected lumbar spine and bilateral knee disabilities, is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, her currently diagnosed obstructive sleep apnea was caused by her service-connected depressive disorder and/or narcotic medications used to treat her service-connected lumbar spine disability and bilateral knee disabilities. 2. The preponderance of the evidence demonstrates that the Veteran's current headaches did not have their onset during active duty service, were not otherwise etiologically related to service, and are not proximately due to, the result of, or aggravated by, her service-connected disabilities. 3. The preponderance of the evidence demonstrates that the Veteran's current bilateral foot disability did not have its onset during active duty service, was not otherwise etiologically related to service, and is not proximately due to, the result of, or aggravated by, her service-connected disabilities. 4. The preponderance of the evidence demonstrates that the Veteran does not have a current diagnosis for a right arm disability. 5. Throughout the appeal period, the Veteran's degenerative arthritis of the spine does not more closely approximate flexion to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 6. Throughout the appeal period, the Veteran's right knee chondromalacia patella does not more closely approximate flexion limited to 30 degrees or extension limited to 15 degrees. 7. Throughout the appeal period, the Veteran's left knee chondromalacia patella status post arthroscopic surgery does not more closely approximate flexion limited to 30 degrees or extension limited to 15 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for entitlement to service connection for headaches, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. The criteria for entitlement to service connection for a right arm disability, to include as secondary to service-connected disabilities have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for entitlement to an initial evaluation in excess of 20 percent for degenerative arthritis of the spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 6. The criteria for entitlement to an evaluation in excess of 10 percent of right knee chondromalacia patella have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261. 7. The criteria for entitlement to an evaluation in excess of 10 percent for left knee chondromalacia patella status post arthroscopic surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1978 to July 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the April 2014 rating decision, the RO, in pertinent part, granted service connection for degenerative arthritis of the lumbar spine and assigned a 20 percent evaluation, effective October 30, 2013; denied a higher than 10 percent evaluation for right knee chondromalacia patella; granted a 10 percent evaluation for left knee chondromalacia patella, effective October 30, 2013; and denied service connection for a bilateral foot disability, fibromyalgia, a right arm disability, a right shoulder disability, a sleep disorder, and headaches. The Veteran appealed for higher evaluations and service connection. In February 2019, the Board, in pertinent part, remanded the issues on appeal for additional development. As discussed below, there has not been substantial compliance with the February 2019 remand instructions, in part, so the matters of entitlement to service connection for fibromyalgia and a right shoulder disability must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In an October 2020 rating decision, the Veteran was granted entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), effective October 30, 2013, an issue that had been on appeal. Because the Veteran's TDIU claim has been granted for the entire disability rating period on appeal, this issue is no longer on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). While the Veteran was previously represented by an attorney regarding her claims, in a November 2020 correspondence, the attorney informed VA that he had notified the Veteran that he was withdrawing his representation. In a December 2020 correspondence sent to the Veteran, VA acknowledged the withdrawal of the attorney's representation and offered the Veteran an opportunity to appoint a new representative. To date, the Veteran has not appointed a new representative; thus, she is now proceeding with her appeal unrepresented. The Board recognizes this change in representation. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. In compliance with the February 2019 Board remand, the RO scheduled the Veteran for VA examinations to determine the nature and etiology of any bilateral foot disability and right arm disability. However, at the September 2020 VA examination for her right arm disability, the Veteran informed the VA examiner that she "would prefer not to pursue that claim at this time." Similarly, at the September 2020 VA examination for her bilateral foot disability, the Veteran informed the VA examiner that she did not have any foot problems, and she "opted to not complete this claim at this time." Accordingly, the VA examiners were unable to perform the necessary evaluation of the Veteran's right arm disability and bilateral foot disability. Given the decision by the Veteran not to participate in any further development of her claims for a right arm disability and a bilateral foot disability, the Board recognizes that the duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that, as the Veteran has rejected VA's attempts to generate the necessary information to assist with substantiating her claims for a right arm disability and a bilateral foot disability, there is no duty to seek further development. The Veteran has not raised any issues with the duty to notify or duty to assist. 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) (applying Scott to a duty to assist argument). For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claims. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities The Veteran generally asserts that she warrants service connection for sleep apnea. The question before the Board is whether the Veteran's sleep apnea is etiologically related to her active duty service or caused or aggravated by a service-connected disability. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, service connection for sleep apnea is warranted. The evidence shows that the Veteran has a current diagnosis for obstructive sleep apnea. See October 2015 VA examination. As a preliminary matter, the Board recognizes that there is no dispute that the Veteran's sleep apnea is not directly related to her active duty service. However, the record includes conflicting medical opinions regarding whether the Veteran's sleep apnea is caused or aggravated by a service-connected disability. With regard to the medical opinions obtained, as with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In support of her appeal, the Veteran submitted an August 2016 Sleep Apnea Disability Benefits Questionnaire. After conducting an objective evaluation, a review of the Veteran's relevant medical records, an interview with the Veteran, and a review of medical literature, the private physician, Dr. H.S., opined that the Veteran's sleep apnea was as likely as not due to her depressive disorder and use of narcotic pain medication for her service-connected lumbar spine and bilateral knee disabilities. In making that determination, Dr. H.S. explained that psychiatric disorders are commonly associated with obstructive sleep apnea. Referencing recent medical studies, Dr. H.S. noted that subjects with depression compared with nondepressed controls have a higher prevalence of sleep apnea diagnosis. Noting that the Veteran was taking opioid medication, Dr. H.S. explained how opioids result in increased respiratory pauses, irregular breathing, and shallow breaths. Dr. H.S. also discussed medical literature, which found that abnormal sleep architecture has been reported during the process of opioids induction, maintenance, and withdrawal. Furthermore, Dr. H.S. explained that opiates are recognized respiratory depressants that cause abnormal ventilatory response to hypercapnia and hypoxia. Overall, Dr. H.S. concluded that the Veteran's use of narcotic medication for pain caused by her service-connected disabilities aided in the development of and permanently aggravated her obstructive sleep apnea. By contrast, in a September 2020 VA opinion, the VA examiner opined that the Veteran's sleep apnea was less likely than not proximately due to, the result of, or aggravated by her service-connected disabilities. In making that determination, the VA examiner relied on the finding that the Veteran's sleep apnea was not diagnosed until decades after his separation from service. However, the VA examiner did not specifically address any of the Veteran's service-connected disabilities in the rationale. The Board finds that this opinion is inadequate, as it does not provide a fully reasoned analysis for the opinion. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Board finds that the September 2020 VA examiner's opinions has little probative value. Taking into consideration the totality of the evidence, the Board finds that the August 2016 private opinion provides the most persuasive evidence as to the etiology of the Veteran's obstructive sleep apnea. Accordingly, the evidence is at least in equipoise that the Veteran's obstructive sleep apnea was caused or aggravated by her service-connected degenerative arthritis of the spine, bilateral knee chondromalacia, and depressive disorder. Therefore, resolving all reasonable doubt in favor of the Veteran, her service connection claim must be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for headaches, to include as secondary to service-connected disabilities The Veteran generally asserts that she warrants service connection for headaches. The question before the Board is whether the Veteran's headaches are etiologically related to her active duty service or are caused or aggravated by a service-connected disability. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for headaches is warranted. The evidence demonstrates that the Veteran has a current diagnosis for tension headaches. See October 2015 VA examination. The Veteran's service treatment records (STRs) document her complaints and treatment for headaches. February 1979 STRs reflect that the Veteran complained of having a headache along with sore throat symptoms. After an objective evaluation, the Veteran was diagnosed with acute serous otitis media and acute pharyngitis, not otherwise specified. In July 1979, the Veteran sought treatment for a headache, which was attributed as a side effect of taking Talwin for myalgia. No further STRs document any additional complaints or treatment for headaches. The STRs do not include a separation examination. Post-service treatment records do not include any complaints or treatment for headaches. At an October 2015 VA examination, the Veteran was diagnosed with tension headaches. The Veteran reported having headaches once every week. After reviewing the Veteran's relevant medical records, the October 2015 VA examiner opined that the Veteran's headaches were less likely than not due to her military service. In making that determination, the October 2015 VA examiner relied on the finding that the Veteran's STRs did not contain a chronic headache problem. The October 2015 VA examiner noted the Veteran's reports of headaches during service. The October 2015 VA examiner found that the Veteran's in-service headaches were attributed to her medication, and that once this medication was stopped, the headaches would resolve and did not lead to chronic headaches. Furthermore, the October 2015 VA examiner explained that the Veteran's in-service headaches associated with her diagnosis for acute otitis media and acute pharyngitis were also not an etiology for the development of chronic headaches. Similarly, in September 2020, the VA examiner opined that the Veteran's headaches were less likely than not incurred in or caused by her active duty service. The September 2020 VA examiner found that the Veteran's STRs did not contain complaints, treatment, or diagnosis for a chronic headache condition. Moreover, the September 2020 VA examiner noted that the Veteran had no continuous headache symptoms from service to the present. Additionally, the September 2020 VA examiner opined that the Veteran's headaches were not proximately due to, the result of, or aggravated by, her service-connected disabilities. Overall, the September 2020 VA examiner found that the Veteran's medical records were silent for any connection between her headaches and her service-connected disabilities. While lay evidence may be sufficient to establish an etiology for observable symptoms such as a headache, any lay assertions that the Veteran's current headaches are related to her in-service headaches are outweighed by the more probative October 2015 and September 2020 VA examiners' opinions. Notably, the Veteran has not indicated that she has had persistent headache symptoms since her discharge; nor do her post-service medical records document any complaints or treatment for chronic headaches. Furthermore, the Veteran has not presented any competent and credible evidence that her current headaches are etiologically related to her active duty service or a service-connected disability. The Veteran has also not demonstrated that she has any specialized medical training or expertise to establish that her headaches are caused or aggravated by her service-connected disabilities. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the above, the Board finds that her lay assertions concerning the etiology of her headaches have little probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for headaches, to include as secondary to a service-connected disability. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected disabilities The Veteran generally asserts that she warrants service connection for a bilateral foot disability. The question before the Board is whether the Veteran's bilateral foot disability is etiologically related to her active duty service or a service-connected disability. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for a bilateral foot disability is warranted. The Veteran's STRs do not document any complaints, treatment, or diagnosis for any findings related to any bilateral foot problems. Post-service private treatment records document that the Veteran had multiple bilateral foot diagnoses, including plantar fasciitis, cavus deformity of foot acquired, pes planus, tendinitis, and posterior calcaneal calcification. In September 2020, the Veteran was provided an opportunity to attend a VA examination, which would provide the information necessary to determine the nature and etiology of any bilateral foot disability. As noted above, the Veteran decided not to participate in the examination, and therefore, no etiological opinion was provided. The only evidence in support of the Veteran's contentions that her bilateral foot disability is related to her active duty service or a service-connected disability is her own lay assertions. Lay evidence may be competent to establish medical etiology or nexus. However, given that the Veteran has not demonstrated that she has specialized medical training or expertise, the Board must find that she is not competent to provide a medical opinion as to the etiology of her bilateral foot disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, her lay assertions have little probative value. In summary, the Board finds the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for a bilateral foot disability. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for a right arm disability, to include as secondary to service-connected disabilities The Veteran generally asserts that she warrants service connection for a right arm disability. The question before the Board is whether the Veteran has a current diagnosis for a right arm disability. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for a right arm disability is warranted. As a preliminary matter, the Board notes that the Veteran has separately claimed service connection for a right shoulder disability. Therefore, this discussion will be limited to the evidence related to her right arm disability, separate and distinct from her right shoulder problems. The Veteran's STRs do not document any complaints, treatment, or diagnosis for any findings related to any right arm problems. A review of the Veteran's private treatment records show that she sought treatment for right arm pain in August 2016 and September 2016. No underlying diagnosis for the right arm pain was provided. In September 2020, the Veteran was provided an opportunity to attend a VA examination to determine the nature and etiology of her right arm disability. As noted above, the Veteran chose not to participate in the examination. Therefore, no diagnosis was provided. The Board recognizes that in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that pain can constitute a disability under 38 U.S.C. § 1110. However, the Federal Circuit did not hold that the veteran could demonstrate service connection simply by asserting subjective pain. Rather, to establish a disability, the veteran's pain must amount to a functional impairment. The Federal Circuit held that to establish the presence of a disability, the veteran will need to show that his or her pain reaches the level of a functional impairment of earning capacity. Id. at 1363. A recent decision by the U.S. Court of Appeals for Veterans Claims (Court) in Wait v. Wilkie, 33 Vet. App. 8 (2020) provided further guidance on the Saunders test for establishing pain as a disability. Under Wait, the Court found that a disability under Saunders requires competent evidence demonstrating that the symptoms result in functional impairment that in fact affects the veteran's earning capacity. In determining whether a veteran's impairment rises to a level affecting earning capacity, VA can consider manifestations of similar severity, frequency, and duration as those VA has determine by regulation would cause impaired earning capacity in an average person. The rating schedule may serve as a guide to determine whether certain symptoms may impair earning capacity; however, it is not dispositive. Id. at 17. In this case, the Board finds that the Veteran has not presented any competent evidence that her right arm disability results in functional impairment that in fact affects her earning capacity. Rather, the available evidence only provides two isolated reports of right arm pain documented in her post-service medical records. Significantly, the Veteran decided not to participate in the evaluation of her right arm disability at the September 2020 VA examination. These actions suggest that the Veteran's right arm problems were not of such severity, frequency, or duration that her earning capacity was affected. Accordingly, the Board finds that the Veteran's right arm problems do not rise to a disability under Saunders and Wait. The Veteran is certainly competent to report her history of right arm problems. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran has not presented any competent and credible evidence of a current diagnosis for a right arm disability, and the available evidence does not support that the Veteran has any persistent symptomatology that would suggest that she has an underlying chronic disability. No underlying disability has been clinically diagnosed during the appeal period or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for a right arm disability. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 09-1998. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. 1. Entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the spine The Veteran generally asserts that her degenerative arthritis of the spine is worse than her current evaluation reflects. The Veteran's degenerative arthritis of the spine has been currently evaluated as 20 percent disabling, effective October 30, 2013, under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board notes that VA has amended the rating criteria for musculoskeletal system 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 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. In this case, the relevant rating criteria has not been changed by the February 7, 2021 amendments. Diagnostic Code 5242 is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal contour; or, vertebral body contour fracture with loss of 50 percent or more of the height. A 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is appropriate for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. See General Rating Formula for Diseases and Injuries of the Spine, Note 2. Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See General Rating Formula for Diseases and Injuries of the Spine, Note 1. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See General Rating Formula for Diseases and Injuries of the Spine, Note 5. Based on a careful review of all the subjective and clinical evidence, the Board finds that the Veteran's degenerative arthritis of the spine does not warrant a higher 40 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine. In other words, at no time during the appeal period does the evidence demonstrate that the Veteran's thoracolumbar spine manifest flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. At an March 2014 VA examination, the Veteran reported having flare-ups occurring every day and lasting for 30 minutes to an hour. The Veteran said that she could not sit for more than 45 minutes before needing to get up and move around. Range of motion testing of the thoracolumbar spine revealed flexion to 45 degrees with pain at 40 degrees, extension to 5 degrees with pain, right lateral flexion to 15 degrees with pain at 10 degrees, left lateral flexion to 15 degrees with pain at 10 degrees, right lateral rotation to 20 degrees with pain, and left lateral rotation to 15 degrees with pain. Upon repetitive use testing, the Veteran's range of motion was further limited with flexion to 40 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, left lateral rotation to 10 degrees. The VA examiner found that the Veteran had functional loss characterized by less movement than normal, incoordination, pain on movement, instability of station, interference with sitting, standing and/or weight bearing, and disturbance of locomotion. Overall, the VA examiner opined that there was no additional limitation of motion due to pain during flare-ups or with repeated use over a period of time. No radiculopathy was found, and her straight leg raising test was negative bilaterally. At an October 2015 VA examination, the Veteran reported having flare-ups after sitting too long. She reported having functional loss characterized as an inability to bend, lift, or do household work. Range of motion testing of the thoracolumbar spine revealed flexion to 90 degrees with pain, extension to 25 degrees with pain, right lateral flexion to 25 degrees with pain, left lateral flexion to 25 degrees with pain, right lateral rotation to 30 degrees without pain, and left lateral rotation to 30 degrees without pain. There was no additional loss of function or range of motion after repetitive use testing. No ankylosis was found. The Veteran had normal sensory examination results, and no radiculopathy was found. At a March 2018 VA examination, the Veteran did not report having flare-ups. The Veteran reported having functional loss, which was described as increased pain when she stood too long. Range of motion testing of the thoracolumbar spine revealed flexion to 75 degrees with pain, extension to 10 degrees with pain, right lateral flexion to 25 degrees with pain, left lateral flexion to 25 degrees with pain, right lateral rotation to 30 degrees without pain, and left lateral rotation to 30 degrees without pain. There was no additional loss of function or range of motion after repetitive use testing. No ankylosis was found. Normal sensory examination results were noted. At a September 2020 VA examination, the Veteran reported having flare-ups, which were described as back spasms when she bent over in the car. She described having functional loss, because she was unable to lift or bend over. Range of motion testing of the thoracolumbar spine revealed flexion to 80 degrees with pain, extension to 30 degrees with pain, right lateral flexion to 30 degrees with pain, left lateral flexion to 30 degrees with pain, right lateral rotation to 30 degrees with pain, and left lateral rotation to 30 degrees with pain. There was no additional loss of function or range of motion after repetitive use testing. Overall, the VA examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups or with repeated use over a period of time. No ankylosis was found. The Veteran had normal sensory examination results, and no radiculopathy was found. The Board is sympathetic to the veteran's reports of increased back pain and spasms and her limited ability to bend, lift, or sit for prolonged periods of time. However, based on the above clinical findings, there is no basis upon which to award a higher 40 percent evaluation for degenerative arthritis of the spine under the General Rating for Formula for Diseases and Injuries of the Spine. Notably, at the Veteran's most recent VA examinations in March 2018 and September 2020, the clinical findings were more consistent with the 10 percent rating criteria. Therefore, the Board finds that the Veteran's degenerative arthritis of the spine is no more than 20 percent disabling. The Board has also considered whether a higher evaluation for degenerative arthritis of the spine is warranted based on functional loss due to flare-ups or repeated use over time. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also 38 C.F.R. §§ 4.40, 4.45. Although the Veteran reported having flare-ups, the evidence does not support that her degenerative arthritis of the spine more closely approximates flexion to 30 degrees or less. Viewing the evidence in the light most favorable to the Veteran, at his March 2014 VA examination, the Veteran's flexion was to 40 degrees following repetitive use testing. However, the VA examiner found that there was no additional loss in range of motion with flare-ups or with repeated use over time. Accordingly, the Board finds that the Veteran's degenerative arthritis of the spine does not warrant a higher 40 percent evaluation under Deluca. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's higher than 20 percent initial evaluation claim for degenerative arthritis of the spine. Therefore, the benefit-of-the-doubt rule does not apply, and the higher initial evaluation claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an evaluation in excess of 10 percent of right knee chondromalacia patella 3. Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia patella status post arthroscopic surgery The Veteran generally asserts that her service-connected bilateral knee disabilities are worse than her current evaluations reflect. The Veteran's right knee chondromalacia patella has been currently evaluated as 10 percent disabling, effective December 12, 2008, under 38 C.F.R. § 4.71a, Diagnostic Code 5260. During the relevant appeal period, the Veteran's left knee chondromalacia patella status post arthroscopic surgery has been currently evaluated as 10 percent disabling, effective October 30, 2013, under 38 C.F.R. § 5260. However, VA is required to evaluate the Veteran's disability under the most appropriate rating criteria that will provide the most benefit to the Veteran. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board notes that VA has amended the rating criteria for musculoskeletal system 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 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. With respect to disabilities of the knee, 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263 set forth the relevant provisions. However, in this case, the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256), instability (Diagnostic Code 5257), dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint (Diagnostic Code 5258), symptomatic removal of semilunar cartilage (Diagnostic Code 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263); thus, the Diagnostic Codes pertaining to such impairments are not applicable. Diagnostic Codes 5260 and 5261 were not changed by the February 7, 2021 amendments. Diagnostic Codes 5260 and 5261 provide for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the Office of General Counsel (OGC) held that separate evaluations under 38 C.F.R. § 4.71a, Diagnostic Code 5260, (limitation of knee flexion) and 38 C.F.R. § 4.71a, Diagnostic Code 5261, (limitation of knee extension) can be assigned without pyramiding. Despite the fact that knee flexion and extension both occur in the same plane of motion, limitation of flexion (bending the knee) and limitation of extension (straightening the knee) represent distinct disabilities. Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran's left knee chondromalacia patella status post arthroscopic surgery and right knee chondromalacia patella each do not warrant a higher a 20 percent evaluation under Diagnostic Codes 5260 or 5261. In other words, the Veteran's left knee chondromalacia patella status post arthroscopic surgery and right knee chondromalacia patella each do not manifest flexion limited to 30 degrees or extension limited to 15 degrees. At a March 2014 VA examination, the Veteran reported having flare-ups of pain and stiffness, which occurred almost every day. She said that she experienced increased stiffness and pain when she overexerted her knees, when she stood for more than 45 minutes, or in cold environments. Range of motion testing of the knees revealed right knee flexion to 140 degrees with pain at 130 degrees, extension to zero degrees without pain, left knee flexion to 140 degrees with pain at 120 degrees, and left knee extension to zero degrees with pain. Upon repetitive use testing, the VA examiner found that there was an additional loss in range of motion. Right knee flexion was limited to 135 degrees. Right knee extension remained normal. Left knee flexion was limited to 135 degrees. Left knee extension remained normal. The VA examiner found that the Veteran had functional loss, which was exhibited by weakened movement, excess fatigability, pain on movement, instability of station, and disturbance of locomotion. Overall, the VA examiner opined that there was no additional limitation of motion due to pain during flare-ups or when the joint is used repeatedly over a period of time. There was no evidence or history of recurrent patellar subluxation or dislocation. The VA examiner noted that the Veteran had shin splints in the distant past, but she had not had any episodes recently. At an October 2015 VA examination, the Veteran reported having flare-ups after sitting for long periods of time on a periodic basis. The Veteran reported having functional loss where she was unable to go up and down stairs or kneel. Range of motion testing of the knees revealed right knee flexion to 140 degrees without pain, right knee extension to zero degrees without pain, left knee flexion to 140 degrees without pain, and left knee extension to zero degrees without pain. The VA examiner found that there was no additional functional loss or range of motion after repetitive use testing. No ankylosis was found. There was no joint instability noted upon testing and no history of recurrent subluxation. At a March 2018 VA examination, the Veteran did not report having any flare-ups. She reported having functional loss, which was exhibited by pain with climbing stairs and standing for prolonged periods in one place. Range of motion testing of the knees revealed right knee flexion to 140 degrees without pain, right knee extension to zero degrees without pain, left knee flexion to 140 degrees without pain, and left knee extension to zero degrees without pain. There was no additional functional loss or range of motion after repetitive use testing. The VA examiner found that pain significantly limited functional ability with repeated use over a period of time. No ankylosis, recurrent subluxation, or lateral instability was found. At a September 2020 VA examination, the Veteran reported having flare-ups of pain when she walked up and down stairs and with prolonged standing. Range of motion testing of the knees revealed right knee flexion to 129 degrees without pain, right knee extension to zero degrees without pain, left knee flexion to 131 degrees with pain, and left knee extension to zero degrees with pain. For the right knee, there was no additional loss of function or range of motion after repetitive use testing. For the left knee, the VA examiner found additional loss of function or range of motion after repetitive use testing. Left knee flexion was limited to 98 degrees and left knee extension remained normal. For the right knee, the VA examiner found that pain, fatigue, weakness, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare-ups. For the left knee, the VA examiner found that pain significantly limited functional ability with repeated use over a period of time and with flare-ups. However, there was no further loss in range of motion. There was no history of recurrent subluxation, and no joint instability was found. No ankylosis was noted. The Board is sympathetic to the Veteran's reports of increased pain and stiffness with climbing stairs, kneeling, and prolonged standing and sitting. However, based on the above clinical findings, there is no basis upon which to award a higher 20 percent evaluation for the Veteran's service-connected bilateral knee disabilities under either Diagnostic Code 5260 or 5261. Notably, the clinical findings at each of the Veteran's VA examinations are more consistent with a noncompensable evaluation under Diagnostic Codes 5260 and 5261. Nevertheless, the Veteran has been assigned a minimum 10 percent evaluation based on painful motion under 38 C.F.R. § 4.59. Therefore, the Board finds that the Veteran's left knee chondromalacia patella status post arthroscopic surgery and right knee chondromalacia patella are each no more than 10 percent disabling. The Board has also considered whether a higher evaluation for left knee chondromalacia patella status post arthroscopic surgery and right knee chondromalacia patella is warranted based on functional loss due to flare-ups and repeated use over time. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also 38 C.F.R. §§ 4.40, 4.45. Although the September 2020 VA examiner did find additional functional loss due to flare-ups and with repeated use over time for the Veteran's left knee, the loss in range of motion did not more closely approximate flexion limited to 30 degrees or extension limited to 15 degrees. With regard to the right knee, there was no additional loss in function or range of motion with flare-ups and repeated use over time. Accordingly, the Board concludes that the Veteran's left knee chondromalacia patella status post arthroscopic surgery and right knee chondromalacia patella do not warrant a higher 20 percent evaluation under Deluca. In summary, the Board finds that the preponderance of the evidence weighs against finding in favor of the Veteran's higher than 10 percent evaluation claims for left knee chondromalacia patella status post arthroscopic surgery and right knee chondromalacia patella. Therefore, the benefit-of-the-doubt rule does not apply, and the higher evaluation claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected disability lumbar spine disability and bilateral knee disabilities, is remanded. In a February 2019 remand, the Board instructed the RO to obtain etiological opinions addressing the Veteran's fibromyalgia. In September 2020, a VA examiner opined that the Veteran's fibromyalgia was less likely than not proximately due to or the result of her service-connected degenerative arthritis of the spine. The September 2020 VA examiner based the opinion on the finding that there was no connection between fibromyalgia and arthritis. No further rationale was provided. Moreover, the September 2020 VA examiner opined that the Veteran's fibromyalgia was less likely than not aggravated beyond its natural progression by her service-connected degenerative arthritis of the spine and bilateral knee chondromalacia patella. The September 2020 VA examiner's rationale did not discuss the Veteran's service-connected degenerative arthritis of the spine and bilateral knee chondromalacia patella. The Board finds that these opinions are not supported by a sufficient medical rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that the September 2020 VA examiner's opinions are both inadequate and did not substantially comply with the February 2019 remand instructions, therefore another remand is required to obtain a supplemental VA opinion. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 2. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected lumbar spine and bilateral knee disabilities, is remanded. In the February 2019 remand, the Board instructed that the examiner determine the nature and etiology of any right shoulder disability. At a September 2020 VA examination, the VA examiner diagnosed the Veteran with right winged scapula. However, the record also includes current diagnoses for scapular dysfunction, right acromioclavicular (AC) joint arthrosis, right shoulder tendinitis, and right adhesive capsulitis. See June 2013 and May 2019 private treatment records. The VA examiner did not address these diagnoses in the September 2020 VA examination report or etiological opinions. Moreover, the medical evidence of record also suggests that the Veteran's reported right shoulder pain may actually be related to her cervical spine. Because the record includes conflicting medical evidence regarding the nature and etiology of the Veteran's right shoulder disability, the Board finds that the September 2020 VA examination is inadequate. The Board finds that a remand is required to clarify the Veteran's diagnosis, to include whether the nature of her disability is related to her cervical spine rather than her right shoulder, and to obtain etiological opinions addressing all of her medical diagnoses during the pendency of the appeal. The matters are REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran's fibromyalgia and right shoulder disability that are not currently of record. 2. Obtain an addendum opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's fibromyalgia. The examiner must provide an opinion addressing the following: (a.) Is it at least as likely as not that the Veteran's fibromyalgia was caused by her service-connected degenerative arthritis of the spine and/or bilateral knee chondromalacia patella? (b.) Is it at least as likely as not that the Veteran's fibromyalgia was aggravated beyond its natural progression by her service-connected degenerative arthritis of the spine and/or bilateral knee chondromalacia patella? A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 3. If necessary, schedule an examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran's right shoulder disability. The examiner should respond to the following: (a.) Clarify the Veteran's diagnosis related to his symptoms of right shoulder pain, to include determining whether her right shoulder pain is related to a right shoulder disability or a cervical spine disability. (b.) For each diagnosed disorder, the examiner should provide an opinion addressing whether the Veteran's disability is at least as likely as not caused by her service-connected degenerative arthritis of the spine and/or bilateral knee chondromalacia patella. (c.) For each diagnosed disorder, the examiner should provide an opinion addressing whether the Veteran's disability is at least as likely as not aggravated beyond its natural progression by her service-connected degenerative arthritis of the spine and/or bilateral knee chondromalacia patella. In providing the above opinions, the examiner must discuss the private treatment records reflecting the Veteran's diagnoses for scapular dysfunction, right AC joint arthrosis, right shoulder tendinitis, and right adhesive capsulitis and suggesting that her right shoulder symptoms may be connected to her cervical spine rather than her right shoulder. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 4. Then, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, then send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.