Citation Nr: 21040714 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-14 867 DATE: July 6, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee osteoarthritis is denied. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis is denied. Entitlement to a rating in excess of 10 percent for a left ankle sprain is denied. Entitlement to a rating in excess of 10 percent for a right ankle sprain is denied. Entitlement to an effective date for the assignment of a total disability rating due to individual unemployability (TDIU) prior to November 27, 2012, is denied. Entitlement to an effective date for the award of Dependent's Educational Assistance (DEA) under 38 U.S.C. Chapter 35 prior to November 27, 2012, is denied. FINDINGS OF FACT 1. The Veteran's left knee disability is manifested by complaints of pain, with forward flexion ending, at worst, at 90 degrees, and extension ending at 0 degrees, with no recurrent subluxation or lateral instability, but with pain. 2. The Veteran's left knee disability is manifested by complaints of pain, with forward flexion ending, at worst, at 90 degrees, and extension ending at 0 degrees, with no recurrent subluxation or lateral instability, but with pain. 3. Throughout the rating period on appeal, the Veteran's service-connected right and left ankle disabilities have been manifested by pain, instability, stiffness and swelling, productive of no worse than moderate limitation of bilateral ankle motion with no more than 15 degrees dorsiflexion and 25 degrees plantar flexion. 4. The most probative evidence indicates that prior to November 27, 2012, the Veteran's service-connected disabilities did not preclude him from substantially gainful employment. 5. The Veteran did not have a permanent and total disability prior to November 27, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 6261. 2. The criteria for entitlement to a rating higher than 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 6261. 3. The criteria for a rating higher than 10 percent for a left ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 4. The criteria for a rating higher than 10 percent for a right ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 5. The criteria for assignment of an effective date prior to November 27, 2012, for the award of a TDIU have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.16. 6. The criteria for an effective date earlier than November 27, 2012, for the award of DEA benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1964 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019 and June 2020, the Board remanded the case for additional development. In February 2021 the Board, in pertinent part, granted the claims for earlier effective dates for the grant of a TDIU and DEA benefits, and remanded the claims listed above for additional development, which has been completed. Beyond the above, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and is receiving a 100 percent disability. INCREASED RATING Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See 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, the diagnosis, and demonstrated symptomatology. Traumatic arthritis shown by x-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent disability rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Diagnostic Code 5003 states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, 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; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. §§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 1. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis 2. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis The Veteran claims that he is entitled to higher disability ratings for his left and right knee disabilities. The Veteran's service-connected right and left knee disabilities are both currently assigned a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5260. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Additionally, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II. VA's General Counsel has held that separate ratings may be assigned for disability of the same joint under Diagnostic Codes 5260 (for limitation of flexion) and 5261 (for limitation of extension). VAOGCPREC 9-2004 (September 2004). In contrast, an evaluation under Code 5003 may not be combined with one under Code 5260 or Code 5261; Code 5003 does not specify the plane of limited motion considered, and so evaluation under either of the other limitation of motion Codes forecloses the possibility of multiple evaluations. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. Prior to the regulatory change, the rating schedule provided for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As of February 7, 2021, under the amended criteria for recurrent subluxation or lateral instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As of February 7, 2021, under the amended criteria for recurrent patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257. For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (2). Dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint will be rated a maximum 20 percent disabling. 38 C.F.R. § 4.71a , Diagnostic Code 5258. Removal of the semilunar cartilage, if symptomatic, will be rated a maximum 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The Board has also considered whether separate or increased evaluations are warranted under any other Diagnostic Codes pertaining to knee disabilities that would afford the Veteran higher ratings. Here, there is no evidence of ankylosis of the knee to warrant a rating under Diagnostic Code 5256; there is no evidence of dislocated semilunar cartilage, or removal of the semilunar cartilage under Diagnostic Codes 5258, 5259; no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia, and; no evidence of genu recurvatum to warrant a rating under Diagnostic Code 5263. Hence, the Board will not discuss these Diagnostic Codes any further. Private treatment records in June 2012, contained a finding of bilateral knee pain with early osteoarthritis manifested by pain and stiffness. In August 2011, he reported complaints of severe knee pain. VA treatment records in August 2012, noted complaints of right knee swelling. X-rays showed no acute bony abnormalities. On VA examination in September 2012, the examiner noted a diagnosis of bilateral knee arthritis. The Veteran reported stiffness, swelling and severe pain. He was treated with medication and steroid injections that with only temporary relief. He also used OTC knee braces for prolonged standing, walking and to exercise. The Veteran endorsed flare-ups manifested by sharp pain and inability to walk. Flexion of the right knee was to 130 degrees, reduced to 125 with repetitive movement, and extension was to 0 degrees. Flexion of the left knee was to 125 degrees, reduced to 120 with repetitive movement, and extension was to 0 degrees. Strength was 5/5, bilaterally. Joint stability testing revealed no abnormalities. There was no evidence or history of recurrent patellar subluxation/dislocation. He did not require assistive devices for ambulation. The knee conditions impaired the Veteran's ability stand or walk for long periods of time. May 2013 imaging studies revealed mild degenerative changes of the knees. A November 2013 treatment note showed minimal crepitation of the knee with normal range of motion. There was no synovitis or effusion noted. On VA examination in November 2013, the examiner noted a history of bilateral knee osteoarthritis, as well as gout with one to two attacks per year. The Veteran stated that he had been treated by rheumatology and orthopedics. He had intraarticular injections, physical therapy, use of bracing and NSAIDs therapy, which had been effective in helping with his pain complaints. He nonetheless continued to have increased pain with weight-bearing activities. The Veteran endorsed flare-ups manifested by increased knee pain with weight-bearing activities, particularly standing for long periods of time. Flexion of the knee was to 140 degrees and extension was to 0 degrees, bilaterally, with no additional loss of motion or function with repetitive movement. The examiner was unable to specify additional loss of motion during flare-ups without resorting to speculation. There was tenderness on palpation, bilaterally. Strength was 5/5, bilaterally. There was no objective evidence of painful motion. Joint stability testing revealed no abnormalities. There was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran used bilateral knee sleeves regularly for ambulation. The Veteran's knee conditions impaired his ability to stand or walk for long periods of time. He would be limited in performing work duties that required deep knee bends such as squatting, climbing, kneeling, crawling, and prolonged weight-bearing activities, such as standing and walking. A June 2014 VA treatment note showed range of motion of both knees to 90 degrees with swelling. On VA examination in February 2015, the Veteran reported injections of both knees, most recent Supartz injection approximately four to five months earlier. He took Tylenol as needed for pain relief. He stated that his gait would be slow after prolonged walking and running. The Veteran endorsed flare-ups manifested by inability to stand greater than 20 to 30 minutes without changing positions. He was able to run, but at slower pace. Flexion of the right knee was 0 to 115 degrees, and 0 to 120 degrees on the left, with no additional loss of motion or function with repetitive movement. The examiner was unable to specify additional loss of motion during flare-ups without resorting to speculation. There was no evidence of pain with weight bearing. There was tenderness on palpation, bilaterally. Strength was 5/5, bilaterally. There was no muscle atrophy. Joint stability testing revealed no abnormalities. There was no evidence or history of recurrent patellar subluxation/dislocation. He used bilateral knee sleeves occasionally for ambulation. A VA treatment note in July 2016 recorded findings of thrombotic thrombocytopenic purpura (TTP) of the medial compartment with mild knee varus. Range of motion was 0 to 120 degrees. In January 2017, the Veteran was seen for chronic bilateral knee pain. He reported using a brace, although the clinician noted no instability and normal muscle strength. On VA examination in August 2020, the examiner noted bilateral knee osteoarthritis. The Veteran reported chronic bilateral knee pain and swelling treated with cortisone injections. He also used braces. The condition made it difficult to do any prolonged standing and walking. The Veteran endorsed flare-ups of both knees four to six times a month. The knee flare-ups were moderate and lasted a couple of hours. They were alleviated by rest and use of a brace. With repetitive use over time, the Veteran experienced difficulty standing and walking for long periods of time. Flexion of the right knee was 0 to 95 degrees, and 0 to 100 degrees on the left, with no additional loss of motion or function with repetitive movement. There was tenderness on palpation, bilaterally. Strength was 5/5, bilaterally. There was no muscle atrophy. Joint stability testing revealed no abnormalities. There was no evidence or history of recurrent patellar subluxation/dislocation. He used bilateral knee sleeves occasionally for ambulation. There was no evidence of pain with weight bearing. There was objective evidence of pain on passive range of motion testing, on non-weight bearing testing. The examiner was unable to specify additional loss of motion with repetitive use over time and on flare-ups without speculation due to lack of general medical knowledge of the Veteran's joint condition which was insufficient to estimate range for each plane of motion as there was great variability between claimants who had the same conditions. On VA examination in April 2021, the Veteran reported frequent episodes of bilateral knee pain. Reportedly, his private physician had diagnosed osteoarthritis in both knees and prescribed cortisone injections every five to six months. The condition had progressed, but the injection were somewhat helpful. The Veteran denied flare-ups. Flexion of the right knee was 0 to 120 degrees, and 0 to 125 degrees on the left, with no additional loss of motion or function with repetitive movement or repeated use over time. There was no evidence of pain with non-weight bearing. There was objective evidence of pain on passive and active range of motion testing and with weight bearing testing. The pain caused difficulty putting on socks and shoes. There was pain and tenderness on palpation, bilaterally. There was no muscle atrophy. Joint stability testing revealed no abnormalities. There was no evidence or history of recurrent patellar subluxation/dislocation. He did not require assistive devices for ambulation. Veteran was limited in running, kneeling, crawling, squatting, prolonged standing, prolonged walking and high impact activities. The examiner noted a new diagnosis of bilateral shin splints that was separate and unrelated to the service-connected bilateral knee disabilities. The Board notes that Diagnostic Code 5003 cannot serve as the basis for higher ratings for either knee disability, inasmuch as the knee is a single joint. A maximum rating of 10 percent would be assigned for the knee under Diagnostic Code 5003; therefore, a higher rating is not warranted. 38 C.F.R. § 4.71a. Diagnostic Code 5003. Pertaining to limitation of motion of the left knee, the range of motion findings detailed above, throughout the appeal, do not show limitation so severe as to meet the criteria for the next higher ratting under Diagnostic Codes 5260. In this regard, during the course of the claim the Veteran's bilateral knee flexion has been shown to be limited to, at worst, 90 degrees and extension to 0 degrees. Most recently, in April 2021, flexion of the right knee was 0 to 120 degrees, and 0 to 125 degrees on the left, with no additional loss of motion or function with repetitive movement or repeated use over time, and the Veteran denied flare-ups. As such, the evidence does not reflect limitation of motion to a compensable level for the left knee under Diagnostic Codes 5260 and 5261, as his range of motion was beyond required flexion limited to 45 degrees and extension limited to 10 degrees, even when considering Deluca factors. 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App, 26 (2017). Thus, higher or separate ratings for limitation of extension and/or flexion of the left knee are not warranted. The Board acknowledges that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia, supra. The Board has also considered the United States Court of Appeals for Veterans' Claims (Court's) holding in Sharp, addressing 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In light of these requirements, the Board has carefully considered the VA examinations of record and whether they complied with Correia and Sharp. The Board notes that while the September 2012, November 2013, February 2015 and August 2020 examination did not substantially conform to those requirements, the April 2021 examination did. Significantly, however, to the extent that the examination findings of record relative to the knees are not completely in compliance with Correia and/or Sharp, the Board finds that remand for additional examination would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Although the Veteran has reported pain associated with his range of motion, the Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell, 25 Vet. App. 32. Indeed, the Court found that nothing in its case law supports an appellant's contentions that she should be given the maximum disability ratings under Diagnostic Codes 5260 and 5261 simply because she experienced pain throughout the range of motion of the knee. Id. Additionally, while a VA clinical treatment report noted mild knee varus, there is no evidence of right or left knee instability at any time during the appeal. Stability testing consistently showed no abnormalities. There is also no evidence or recurrent subluxation, bilaterally. Accordingly, the Board finds that a rating under Diagnostic Code 5257 is not warranted for either knee. 38 C.F.R. § 4.71a Diagnostic Code 5257. As to the amended Diagnostic Code 5257, while the evidence shows that throughout the appeal the Veteran reported using bilateral knee sleeves/braces the evidence does not show recurrent subluxation or lateral instability with incomplete ligament tear, or complete ligament tear causing persistent instability, nor is there evidence of recurrent patellar instability involving the patellofemoral complex with recurrent instability. Thus, a separate rating under the amended version of Diagnostic Code 5257 is not warranted for either knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. For all the foregoing reasons, the Board finds that the preponderance of the evidence is against assignment of any higher and/or separate ratings for the right or left knee disability. See 38 U.S.C. § 5107 (b); Gilbert, supra. 3. Entitlement to a rating in excess of 10 percent for a left ankle sprain 4. Entitlement to a rating in excess of 10 percent for a right ankle sprain The Veteran asserts that he is entitled to higher disability ratings for his left and right ankle disabilities. The Veteran's left and right ankle disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under the version of Diagnostic Code 5271 in effect prior to February 7, 2021, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule. 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. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. Under the version of Diagnostic Code 5271 in effect from February 7, 2021, marked and moderate limitation of motion are defined. Marked limitation of ankle motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion; moderate limitation of motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2021). The other diagnostic codes pertaining to the ankle are unchanged. On VA examination in July 2012, right plantar flexion was to 40 degrees and dorsiflexion was to 15 degrees. Left plantar flexion was to 35 degrees and dorsiflexion was to 15 degrees. There was no additional loss of motion or function with repetitive movement. There was tenderness on palpation of the left ankle. Muscle strength was 5/5 bilaterally. There was no joint instability. There was no ankylosis. He did not require assistive devices for ambulation. X-rays showed right ankle with old healed fracture fragment at the distal tip of the lateral malleolus, and the left ankle was noted as normal. The impact of the ankle disabilities on the Veteran's ability to work was limited prolonged standing and walking. In September 2013, the Veteran sustained a left ankle fracture. He was treated with a brace. Imaging studies of the left ankle in October 2013, showed healed previous nondisplaced lateral malleolar fracture and adjacent avulsion. The Veteran wore an ankle splint. In December 2013, it was noted that the Veteran was doing well, and presented complaints of intermittent mild swelling and dull pain, rated as 3/10. Range of motion was 0 to 25 degrees of plantar flexion and dorsiflexion was noted as neutral. In April 2014, he reported continued ankle pain and instability. A VA examiner in February 2015, noted a history of fracture of the tip of the left lateral malleolus after inversion ankle injury in September 2013, treated with a lace up boot. The Veteran reportedly continued to wear it two to three times a week. He was able to exercise on a stationary bike. The Veteran endorsed flare-ups of left ankle symptoms manifested by swelling once or twice a month. He would just wrap up the ankle and treat it with ointment. The Veteran stated that the right ankle rarely bothered him. Left plantar flexion was to 0 to 55 degrees and dorsiflexion was to 0 to 25 degrees. Right plantar flexion was 0 to 45 degrees and dorsiflexion was 0 to 20 degrees. There was no additional loss of motion or function with repetitive movement. There was tenderness on palpation of the left ankle. Muscle strength was 5/5 bilaterally. There was bilateral joint instability. There was no ankylosis. He occasionally used a brace for ambulation. X-rays showed degenerative arthritis. The ankle disabilities prevented walking quickly or running. VA treatment notes in November 2018 showed bilateral pain free range of motion of the ankles. On VA examination in August 2020, the examiner noted bilateral ankle sprains with deltoid ligament sprain, lateral collateral ligament sprain and tendonitis. The Veteran reported ankle weakness, pain and swelling, treated with ankle brace, cortisone injections and Tylenol. The Veteran endorsed moderate flare ups of the right and left ankles once a week and lasting one to two hours and alleviated by rest and ice. During flare-ups he experienced difficulty standing and walking for long periods of time. Left plantar flexion was to 0 to 35 degrees and dorsiflexion was to 0 to 15 degrees. Right plantar flexion was 0 to 35 degrees and dorsiflexion was 0 to 15 degrees. There was no additional loss of motion or function with repetitive movement. There was tenderness on palpation of the left ankle. Muscle strength was 5/5 bilaterally. There was no ankle instability. There was no ankylosis. He occasionally used a brace for ambulation. There was evidence of pain with weight bearing, and on passive range of motion. There was no objective evidence of pain on non-weight bearing. The examiner indicated that he was unable to provide estimate as to additional loss of motion or function during flare-ups or with repetitive use over time due to variability of limitation and severity. The examiner noted that medical records did not identify previous range of motion after repetitive motion and the general medical knowledge of the Veteran's joint condition was insufficient to estimate range for each plane of motion as there was great variability between claimants who had the same conditions. A VA examiner in April 2021, noted that in 2019 the Veteran was diagnosed with a torn ligament in his left ankle for which he underwent surgery. In 2020, he was diagnosed with a torn ligament of the right ankle surgically repaired in 2020. His symptoms improved. The Veteran complained of constant right ankle pain and intermittent left ankle pain. He denied instability. He was not under any treatment. The Veteran denied flare-ups. With repetitive use over time the Veteran experienced limited range of motion on prolonged standing or walking. Left plantar flexion was to 0 to 25 degrees and dorsiflexion was to 0 to 15 degrees with pain on active and passive range of motion. Right plantar flexion was 0 to 25 degrees and dorsiflexion was 0 to 20 degrees with pain on active and passive range of motion. There was no additional loss of motion or function with repetitive movement or repeated use over time. There was evidence of pain with weight-bearing and passive range of motion, bilaterally, and with active range of motion on the right, which was productive of difficulty putting on socks due to ankle pain. There was no crepitus. There was tenderness on palpation. Muscle strength was 5/5 bilaterally. There was no ankle instability. There was no ankylosis. He occasionally used a brace for ambulation. In sum, the Board finds that a higher 20 percent rating under 5271 is not warranted for either ankle as there is no evidence of limitation of motion or functional loss that would equate to marked limitation of motion of the ankle. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Specifically, while the Veteran has reported experiencing pain on motion, swelling, stiffness and limitations in prolonged walking, standing and running, motion was reduced to no more than 15 degrees dorsiflexion and 25 degrees plantar flexion bilaterally, which demonstrates more than half the normal range of motion for the ankle. Additionally, while in April 2014 a clinician noted left ankle pain and instability following the post-service September 2013 fracture, and a VA examiner in February 2015 suspected bilateral ankle instability, stability testing throughout the appeal, including in February 2015, revealed no abnormalities, and ankle strength was consistently within normal limits, bilaterally. The Board finds that the Veteran's functional limitations and reported symptoms and their severity more closely approximated as moderate (i.e., 10 percent rating criteria). While the Board is aware of the Veteran's complaints of pain, swelling, stiffness and instability, those symptoms are not shown by competent, objective evidence to have been so disabling as to warrant the next higher 20 percent rating for limitation of motion of either ankle under Diagnostic Code 5271. In this case, there is no objective, quantifiable evidence of additional range of motion loss due to pain on use, as alleged by the Veteran, that would equate to functional limitation to the extent that a higher rating was warranted under Diagnostic Code 5271. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Therefore, the Board finds that prior to February 7, 2021, a higher rating requires at least marked symptomatology/limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (as previously indicated, the broad language in the criteria contemplates the symptoms indicated above, even though they are not specifically listed). Such marked symptomatology is not demonstrated here. Accordingly, disability ratings in excess of 10 percent for the right or left ankle are not warranted. Additionally, as the Veteran's right and left ankle have not demonstrated less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion at any time during the appeal period. Therefore, Diagnostic Code 5271 in effect since February 7, 2021 can not serve as the basis for higher ratings. To the extent that VA examinations in July 2012, February 2015 and August 2020, did not comply with Correia and Sharp, the April 2021 examination did and the Board finds that remand for additional examination would serve no useful purpose. See Soyini, 1 Vet. App. at 546. The Board has also considered all potentially applicable provisions of the rating schedule, whether or not they have been raised by the Veteran or the record, as required by Schafrath, 1 Vet. App. 589. However, the Board has found no section that provides a basis upon which to assign increased disability ratings for any period on appeal. There has been no objective finding of ankylosis of the Veteran's either ankle, subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy; therefore, Diagnostic Codes 5270, 5272, 5273, and 5274 are not for application. Similarly, the Board does not find any additional foot or ankle symptoms consistent with a finding of severe residuals of a foot injury or loss of use of the foot as required for higher ratings under Diagnostic Code 5284. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272-5274, 5284. Again, the Board's findings do not, in any way, suggests the Veteran does not have problems with his right and left ankles. It is important for the Veteran to understand that a disability rating at any level will cause the Veteran problems. The only question is the degree of the problems based on the criteria above. In this regard, it is again valuable to note that the Veteran has already been found to be 100 percent disabled by VA and is receiving a 100 percent disability. The Board finds the VA examiners' medical findings highly probative to the issue of the severity of the Veteran's right and left ankle disabilities. Specifically, the examiners interviewed the Veteran and conducted a physical examination. Additionally, the examination findings are consistent with other evidence of record, including treatment notes. To the extent the Veteran claims the bilateral ankle disorders are more severe than the currently assigned evaluations reflect, the Board finds that the Veteran as a lay person is competent to report observable symptoms, he experiences through his senses such pain, instability and swelling and rolling of the ankle. Layno, 6 Vet. App. 465; Jandreau, 492 F.3d 1372. However, the Board finds the medical findings, as provided in the examination reports are more persuasive and outweigh the Veteran's statements in support of his claims for higher disability ratings than those currently assigned. As the preponderance of the evidence weighs against the Veteran's claims, there is no reasonable doubt to be resolved, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Effective Date 5. Entitlement to an effective date earlier than November 27, 2012, for the grant of a TDIU The Veteran is seeking entitlement an effective date earlier than November 27, 2012, for the grant of a TDIU. A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); VAOPGCPREC 75-91 (Dec. 27 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16 (a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disabilities sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In February 2021, the Board determined that because the Veteran's claim for TDIU is associated with increased rating claims for his bilateral knee disabilities under Rice, the appeal period under consideration for entitlement to TDIU began on September 24, 2010, the date the Veteran filed his claim for service connection for right and left knee disorders and was awarded his initial compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). From September 24, 2010 to November 27, 2012, service connection was in effect for: Posttraumatic stress disorder (PTSD) with depressive disorder and anxiety disorder not otherwise specified, evaluated as 30% disabled; Coronary artery disease (CAD) with pacemaker and residual scar, evaluated as 30% disabled; A left knee disability, evaluated as 10% disabled; A right knee disability, evaluated as 10% disabled; A left ankle disability, evaluated as 10% disabled; A right ankle disability, evaluated as 10% disabled; Tinnitus, evaluated as 10% disabled; and, Hearing loss, evaluated as 0% disabled. Prior to November 27, 2012, the Veteran's combined disability evaluation was 70%. Therefore, the schedular criteria for TDIU were met. 38 C.F.R. § 4.16. Accordingly, what remains to be determined is whether the functional impairment associated with his service-connected disabilities are of such nature and severity as to preclude substantially gainful employment. Claims for TDIU are considered claims for an increased rating, thus the determination of the effective date for TDIU claim is the date the claim was received or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o); 38 U.S.C. § 5110(a), (b). Here, as noted above, the period under consideration for the claim for entitlement to a Veteran's TDIU is from September 24, 2010 to November 27, 2012. In his February 2014 VA form 21-8940 (Veterans Application for Increased Compensation based on Unemployability) the Veteran asserted that his service-connected bilateral ankle and knee disabilities, as well as his CAD, rendered him unable to work. He reported that he had not worked since May 2003, and that his last position was as a greeter at Sam's Club. The Veteran indicated that he had completed high school and two years of college and had not received any additional training or education. The Veteran's occupational history post-service discharge, included work as a processor in a duck farm in 1967, work as a bus driver from 1968 to 1981, work as a pickup/delivery driver, forklift operator and materials handler/receiving from 1981 to 1998, and as a store door greeter from 1999 to 2000. He retired in 2000. On VA examination in July 2011 and August 2011, a VA examiner determined that the Veteran's CAD was productive of fatigue and dizziness making it hard to do any activity in timely manner. The left chest surgical scarring did not affect his usual occupation or daily activities. Pertaining to the ankles, a VA examiner in July 2012, opined that the bilateral ankle disabilities rendered him unable to stand or walk for long periods of time. Concerning the knees, a VA examiner in September 2012 opined that the Veteran's service-connected knee disabilities rendered him unable to stand or walk for long periods of time. A VA examiner in November 2013, opined that knee would limit prolonged weight-bearing activities, such as standing and walking and that he would also be limited in performing activities of climbing stairs or ladders. However, the condition did not preclude sedentary employment as he was capable of working in a seated position. On VA mental health disorders examination in July 2012, the examiner found that while a mental condition had been formally diagnosed, the Veteran's psychiatric symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. Finally, a VA examiner in July 2012 determined that the Veteran's hearing loss resulted in some hearing difficulties and the Veteran often found himself asking people to repeat themselves. He also noted that tinnitus was bothersome. After thoroughly reviewing the evidence of record, the Board finds that a TDIU is not warranted prior to November 27, 2012 as the evidence does not support a finding that the Veteran's service-connected disabilities rendered the Veteran unable to obtain substantial gainful employment. In sum, the objective medical evidence provided by multiple VA examination reports and treatment providers prior to November 27, 2012, did not support a finding that the Veteran was precluded from obtaining or maintaining substantially gainful employment during this time. While the Veteran's bilateral knee disorders, bilateral ankle disabilities, CAD, hearing problems and psychiatric disability, may result in some limitations affecting prolonged standing or walking and stair/ladder climbing which preclude the ability to perform a full range of work, they do not render him unemployable; rather, it simply limits the Veteran to sedentary occupations. In this case, the VA examiners reviewed the Veteran's medical records, completed physical and functional evaluations of the Veteran, and articulated how the objective clinical findings would or would not result in physical or mental limitations, as required by 38 C.F.R. § 4.1 ("[f]or the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition."). It was clear that each examiner considered these limitations and their opinions are consistent. The weight of the probative evidence of record does not contradict the findings of the VA examiners. The Board observes that the disability ratings in effect prior to November 27, 2012, recognize that the impairment due to his service-connected disabilities makes it difficult to obtain and keep employment (that the Veteran has problems is not in dispute, an 70% disability rating will, by definition, cause the Veteran many problems). However, the ultimate question in determining entitlement to a TDIU is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 363. In this regard, it is important for the Veteran to understand that not all evidence supports the current evaluations, let alone higher evaluations. In any event, there is no indication from the record that prior to November 27, 2012, the Veteran was unable to obtain and maintain substantially gainful employment solely as a result of his service-connected disabilities, either singularly or jointly. As the preponderance of the evidence is against the claim for entitlement to a TDIU prior to November 27, 2012, the benefit of the doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 6. Entitlement to an effective date earlier than November 27, 2012, for the grant of DEA benefits The Board's denial of an earlier effective date for the award of TDIU precludes the assignment of an effective date prior to November 27, 2012 for the award of DEA benefits. In this regard, for purposes of DEA benefits under 38 U.S.C. Chapter 35, the law relevant to the Veteran's current claim provides that basic eligibility exists where the veteran was discharged from service under conditions other than dishonorable and has a total disability permanent in nature as a result of a service-connected disability. 38 U.S.C. § 3501 (a)(1); 38 C.F.R. §§ 3.807 (a), 21.3021. With certain exceptions that are not applicable to the instant claim, the effective date for the grant of such award shall, to the extent feasible, correspond to effective dates for awards of disability compensation. 38 U.S.C. § 5113 (a). A total disability may be assigned where the veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Here, the currently assigned effective date of November 27, 2012, for basic eligibility for DEA benefits is directly related to the award of a TDIU. See the October 2014 Rating Decision, the February 2021 Board decision and the March 2021 Rating Decision (granting entitlement to a TDIU effective November 27, 2012 and establishing entitlement to DEA benefits, effective that same date). Since eligibility for DEA benefits under 38 U.S.C. Chapter 35 is predicated on a finding of a total (100 percent) disability rating, the effective date of such eligibility cannot precede the November 27, 2012 TDIU award. Accordingly, although the Veteran contends that the effective date should be earlier, the assignment of an effective date prior to November 27, 2012 for the award of DEA benefits is precluded by law. See 38 U.S.C. §§ 3501 (a)(1), 5113(a); 38 C.F.R. §§ 3.807 (a), 21.3021. See also Sabonis v. Brown, 6 Vet. App. 426 (1994). Because the law, and not the facts, is dispositive of the outcome of this issue, the benefit-of-the-doubt rule does not apply. See Sabonis, 6 Vet. App. at 430; see also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.