Citation Nr: 21042847 Decision Date: 07/14/21 Archive Date: 07/14/21 DOCKET NO. 15-34 919 DATE: July 14, 2021 ORDER 1. Entitlement to a rating in excess of 10 percent for a left hip disability is denied. 2. Entitlement to a rating in excess of 30 percent for a right ankle disability residuals of tendon repair, with DJD is denied. 3. Entitlement to a rating in excess of 20 percent for advanced degenerative intervertebral disk disease of the lower lumbar spine, status post compression fracture of the upper lumbar segments with residual degenerative arthritis (a low back disability) from May 21, 2013 to January 27, 2020 is denied. 4. Entitlement to a rating in excess of 40 percent for a low back disability from January 27, 2020 is denied. 5. Entitlement to a rating in excess of 10 percent for midtarsal degenerative joint disease (DJD) of the left foot from August 7, 2006 to June 12, 2015 is denied. 6. Entitlement to a rating in excess of 30 percent for midtarsal DJD of the left foot from June 12, 2015 is denied. REMANDED 7. Entitlement to an effective date prior to June 12, 2015, for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis is remanded. FINDINGS OF FACT 1. The Veteran's left hip disability has not resulted in a limitation of abduction to motion beyond 10 degrees lost. 2. The Veteran's right ankle and foot tendon repair residual disability has been manifested by impairment no worse than reflecting severe foot injury; loss of use of the foot is not shown. 3. From May 21, 2013 to January 27, 2020, the Veteran's low back disability was manifested by functional loss after repetitive use due to less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing, but not limitation of flexion 30 degrees or less, favorable ankylosis of the thoracolumbar spine, or incapacitating episodes having a total duration of at least 4 weeks. 4. From January 27, 2020, the Veteran's low back disability has been manifested by forward flexion to 10 degrees, with functional loss caused by limited range of motion due to pain; ankylosis of the spine, or incapacitating episodes of IVDS having a total duration of at least 6 weeks are not shown. 5. From August 7, 2006 to June 12, 2015, the Veteran's left foot disability has not been manifested by moderately severe, but not severe, symptoms and impairment. 6. From June 12, 2015, the Veteran's left foot disability has been manifested by no more than "severe" symptoms. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for left hip disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5253. 2. A rating in excess of a 30 percent for a right ankle/foot disability residual of tendon repair with arthritis under Code 5284, (in lieu of separate ratings for the disability of 20 percent for other foot injury under Code 5284 and 10 percent for arthritis with limitation ankle motion under Code 5271) is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Code 5284. 3. Ratings for a low back disability in excess of 20 percent from May 21, 2013 to January 27, 2020, and in excess of 40 percent from that day are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5010-5243. 4. Ratings for a left foot disability in excess of 10 percent from August 7, 2006 to June 12, 2015 and in excess of 30 percent from June 12, 2015 are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1969 to September 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2014 and June 2015 Department of Veterans Affairs (VA) rating decisions. In November 2019, the matters were remanded for additional development. A November 2020 rating decision, in part, increased the rating for the low back disability to 40 percent effective January 27, 2020 and increased the rating for midtarsal DJD and arthritis of the left foot to 30 percent effective June 12, 2015. The November 2020 rating decision also granted TDIU effective June 12, 2015. Finally, the November granted service connection for right ankle DJD, assigning a separate 10 percent rating under Code 5271 (for limitation of motion) effective October 20, 2020. In January 2021 correspondence, the Veteran's representative raised a claim of an earlier effective date for the award of service connection for a lumbar spine disability. Such earlier effective date claim has not been addressed by the agency of original jurisdiction (AOJ), and the Board does not have jurisdiction to consider an appeal in the matter. It is referred to the AOJ for any appropriate action. [The Board observes that the effective date for the award of service connection was assigned by a now-final rating decision. As clear ans unmistakable error in that decision has not been alleged, the claim appears to be an impermissible "free-standing" earlier effective date claim.] Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or maligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent for a left hip disability is denied. The Veteran's left hip disability is rated under 38 C.F.R. § 4.71a, Code 5253, for impairment of the thigh. A 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Code 5253. VA has recently revised portions of the rating criteria for the musculoskeletal system disabilities, effective February 7, 2021. 82 F.R. 35719. The criteria under Code 5253 have not been revised. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent at any time during the period on appeal. A May 2015 VA examination found that the Veteran had full adduction (25 out of 25 degrees) and was able to cross his legs. Rotation was to 60 of 60 degrees externally and limited to 10 of 40 degrees internally. He denied experiencing flare-ups of pain. A January 2020 VA examination found that the Veteran's range of motion was quite limited, particularly as it pertained to rotation of the left hip. He had adduction to 15 of 25 degrees and was unable to cross his legs. Rotation was limited to 45 of 60 degrees externally and 25 of 40 degrees internally. He denied experiencing any flare-ups of pain. There was objective evidence of pain on passive range of motion testing and objective evidence of pain in non-weight bearing. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, and severe limitation of rotation shown at the most recent examination, and that there was objective evidence of pain on passive range of motion testing and in non-weight bearing on the most recent examination. The Board further notes that on both the May 2015 and January 2020 VA examinations, he denied experiencing flare-ups that resulted in additional functional loss. The Board has also considered the other diagnostic codes pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Here, rating under alternate criteria is not indicated because either pathology required for such rating is not shown or because a higher rating would not be warranted under the alternate criteria. The preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for left hip trochanteric bursitis throughout the period on appeal. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 30 percent for right ankle disability (to include residuals of tendon repair and DJD) is denied. The Veteran's right ankle disability is rated under Code 5284 which provides criteria for rating other foot injuries. Under Code 5284, a 10 percent disability rating is provided for a moderate foot injury. A 20 percent disability rating is provided for a moderately severe foot injury. A 30 percent disability rating is provided for a severe foot injury. A Note to Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. The words "mild," "moderate," "moderately severe," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38C.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. "Severe" means "of a great degree." See www.merriam-webster.com/dictionary/severe. VA's recent revisions the rating criteria for disabilities of the musculoskeletal system, effective February 7, 2021, have not included revisions to Code 5284 criteria. 82 F.R. 35719. On September 2014 VA examination the Veteran reported daily right ankle pain, but denied limitations on activities of daily living. He did not report flare-ups that impacted the function of the ankle. Physical examination revealed left ankle range of motion of 20 degrees of dorsiflexion and 45 degrees or more degrees of plantar flexion. Normal range of motion was noted to be 20 degrees of dorsiflexion and 45 degrees of plantar flexion. The Veteran was able to perform repetitive-use testing, to 3 repetitions. He did not have additional limitation in ROM of the ankle following repetitive-use testing. Pain on movement contributed to functional loss and/or functional impairment of the ankle. The Veteran did not have localized tenderness or pain on palpation of joints/soft tissue of the right ankle. Muscle strength testing was within normal limits. There was no ankylosis. Joint stability testing was normal. The Veteran's ankle condition did not impact his ability to work. In an August 2020 VA addendum opinion, the examiner confirmed a diagnosis of right peroneal tendon tear with repair. The examiner stated the Veteran continued with right ankle/foot mild pain described as ache with weight-bearing activity such as standing, and symptoms did improve after surgery in 2005. He needed a brace to stabilize his foot/ankle. He had a right foot orthotic as well as brace and continued to be symptomatic despite device use. The examiner noted that although the Veteran has both an orthotic and a brace for his right foot condition, there may be some overlap with his flat feet. The examiner stated it would be mere speculation to determine the exact amount of pain or range of motion impairment strictly due to his right peroneal tendon repair versus his flat foot condition. On October 2020 VA examination the Veteran reported that his condition had improved since onset. He stated that the pain in his right lower leg was "pretty much gone." He stated that earlier he had experienced pain at rest. He reported currently being asymptomatic, but that he experienced a mild achy pain that intermittently presented which was often alleviated with movement of the foot, and aggravated by prolonged standing and long-distance walking. He reported occasional episodes of increased sharp pain. He reported having functional loss or functional impairment in that he did not do some things he used to do before, such as mow his lawn or maintain a garden due to pain syndromes that had developed in other body regions (ex. left flat foot, chronic low back pain) that are secondary to his right peroneal tendon injury causing long term pathologic gait and weight distribution patterns. Physical examination revealed right ankle range of motion of 10 degrees of dorsiflexion and 35 degrees or more degrees of plantar flexion. Normal range of motion was noted to be 20 degrees of dorsiflexion and 45 degrees of plantar flexion. Range of motion itself contributed to a functional loss. The right ankle was in inverted position with no functional eversion possible. No pain was noted on examination. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain with weight bearing and no objective evidence of crepitus. The Veteran was not able to perform repetitive-use testing with at least three repetitions due to increased pain and instability without use of an ankle foot orthosis (AFO). The examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time. Pain, fatigue, and weakness contributed to this functional loss. The examination was medically consistent with the Veteran's statements describing functional loss during flare up. Pain, weakness, fatigability or incoordination significantly limited functional ability with flare ups. Pain and weakness caused this functional loss. It varied daily, was varied and severe. The examiner indicated that precipitating factors/causes included increased use of right lower extremity or use of the right ankle without AFO. The examiner noted that due to right peroneal tendon injury and surgery, the Veteran has marked weakness in eversion of the right ankle. He was naturally positioned in an inverted position causing a marked challenge to stand for a long period of time without use of AFO. With use of AFO, his ability to plantar flex his ankle is limited. Muscle strength testing was within normal limits. The examiner commented that muscle strength of eversion of right ankle was markedly weakened; could not obtain full ROM against gravity suggesting a muscle grade strength below 3/5 at best. He required use of AFO to hold his foot/ankle in a more neutral position. There was no ankylosis. Joint stability testing was normal. The examiner additionally noted the Veteran had marked weakness of right ankle eversion. His right ankle was also positioned naturally in a more inverted position due to eversion weakness. This positioning of his ankle/foot caused him to walk extensively on the lateral aspect of his foot sole unless wearing his AFO. He required the use of AFO constantly and a cane 3 to 4 times per week. The examiner indicated that the Veteran's right ankle condition impacted his ability to work in that he was impaired in ability to walk long distances, prolonged standing. This was not just due to deformity of the right ankle but also due to musculoskeletal and gait pathologies that had developed secondary to his right peroneal tendon condition. The examiner further remarked that it appears the Veteran's right peroneal tendon appears to be at the same level of disability. He appeared to be having worsening of his back and left foot conditions likely secondary to gait changes caused by years of having his right peroneal condition. There was objective evidence of pain when the right ankle is used in non-weight bearing. Passive range of motion was the same as active range of motion. In a November 2020 VA addendum opinion, the examiner clarified, The Veteran has marked functional deficits in his right ankle/lower leg at all times, regardless of flare ups. This is due to anatomic instability of his right ankle and a resting inverted position of his right ankle. This positioning is secondary to his right peroneal tendon injury. Without use of an AFO to stabilize his right foot/ankle[,] he is severely functionally limited in use of his right lower leg at all times regardless of flare ups of pain. This is noted and can be concluded based on direct observation. While he experiences increased pain in his right ankle on occasion[,] that is not the main etiology of his functional disability regarding the right lower leg, his functional disability is now secondary to anatomic positioning and abnormal range of motion in the right lower leg/ankle/foot. The severity of this is severe, its frequency is constant and duration is at all times. [The] Veteran's claims regarding other body areas (low back, left leg) developing pain conditions with flare ups secondary to his chronic right leg condition is valid, and he has likely developed increased pain in his back and left lower leg due to a pathologic gait development from his right leg condition. These other secondary areas[,] however[,] do not appear to be contributing to functional limitations at this time at rest or during flare ups and were not individually/specifically examined as this [examination] requested assessment of right lower leg to my understanding. At the outset, the Board notes that this issue presents a complicated rating exercise, made more so by the November 2020 rating decision grant of service connection for right ankle DJD, separately rated 10 percent under Code 5271 (for limitation of ankle motion). Significantly, the rating of the disability under Code 5284 (for other foot injury) also contemplates consideration of limitation of motion. Rating the same impairment under two separate diagnostic Codes violates the prohibition against pyramiding in 38 C.F.R. §4.71(a). Therefore, the disability (including both the tendon repair residuals and DJD should properly not be rated under both Code 5284 and 5271, but instead should be rated under whichever of those Codes best reflects the right ankle disability picture presented and affords the Veteran the greater benefit. The supplemental statement of the case issued essentially simultaneously with the November 2011 rating decision makes of mention of all this. The Board is treating the two separately rated by entities as a single disability, currently more appropriately rated 30 percent under Code 5284 (for severe foot injury). Further observations in that regard include that the Veteran is not prejudiced by this action as the combination of 20 and 10 percent ratings results in a combined rating of 28 percent (which has to be rounded up, as provided to reach the 30 percent rating level). Technically, a single 30 percent rating would potentially be a greater benefit than separate 20 and 10 percent ratings combined and rounded up. The board also notes that 20 percent is the maximum rating under Code 5271, so alternatively rating the disability under that Code would not be of greater benefit to the Veteran. As the ankle disability is now assigned the maximum rating provided for other foot injury under Code 5284, the analysis turns to whether, as the Note to Code 5284 provides, has actual loss of use of the right foot, which would warrant a 40 percent rating, as well as entitlement to SMC for loss of use. The Veteran is clearly shown to have a severe right ankle/foot injury. The explanation by the provider of the November 2020 addendum to the latest VA examination report clearly so indicated, noting "without use of an AFO to stabilize his right foot/ankle he is clearly functionally limited in use of his right lower leg at all times". However, no treatment or examination provider has indicated that the Veteran has actual loss of use of his right leg (a situation that exists when no there is no remaining function other than which would equally be well-served by amputation with use of an appropriate prosthetic device. While the disability results in functional limitations, the Veteran is still able to walk (although apparently with weakened push-off, and for limited distances, requiring use of a cane 3 to 4 times weekly. Consequently, the Board finds that a 40 percent rating under Code 5284 is not warranted. A higher rating (under Code 5270) would also be warranted if the ankle was ankylosed in an unfavorable position. But the ankle is neither shown, nor alleged, to be ankylosed. Finally, for consideration there is whether a rating in excess of 20 percent for the right ankle disability was warranted prior to the grant of the separate 10 percent rating under code 5271, effective October 20, 2020, which has now been replaced. Prior to the examination on October 20, 2020, a right ankle disability picture consistent with severe injury was not shown. See, e.g., the addendum provided in August 2020, just months before the October 2020 examination when the disability was described as mild foot pain that was present despite the use of orthotics. Consequently, a rating in excess of 20 percent for the right ankle disability prior to October 20, 2020 was not warranted. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. For the foregoing reasons, the preponderance of the evidence is against the claim for a higher disability rating for the service-connected right ankle disability. The benefit of the doubt rule is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 3., 4. Entitlement to ratings for a low back disability in excess of 20 percent prior to January 27, 2020 and in excess of 40 percent from that date is denied. The Veteran's lumbar spine disability is rated as traumatic arthritis and intervertebral disc syndrome under 38 C.F.R. § 4.71a, Codes 5010-5243. This disability is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine ("General Formula"), or as intervertebral disc syndrome (IVDS) under the Formula for Rating IVDS Based on Incapacitating Episodes ("IVDS Formula"), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See VBA Training Letter 02-04 (October 24, 2002). Under the General Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; for combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; for muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; for combined range of motion of the thoracolumbar spine not greater than 120 degrees; or for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Under 38 C.F.R. § 4.71(a), Code 5010, arthritis due to trauma and substantiated by X-ray findings is rated as degenerative arthritis under Code 5003. Under 38 C.F.R. § 4.71(a), Code 5003, 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 the appropriate diagnostic codes, a 10 percent rating may be assigned for each major joint or group of minor joints so affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objective confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. The 10 percent and 20 percent ratings based on X-ray findings will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024. Under 38 C.F.R. § 4.71(a), Code 5243, intervertebral disc syndrome is rated under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which method resulted in the higher evaluation rating when all disabilities are combined under § 4.25. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71(a) 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. Under the amended Code 5010, post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Under the amended Code 5243, intervertebral disc syndrome is only assigned rated under this code when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign code 5242 for all other diagnoses. Here, the amendment to rating criteria codes will not have any effect on the rating for the Veteran's lumbar spine disorder, so they will not be discussed further. ON May 2013 VA examination, the Veteran reported the right side of his back hurt the most and it felt like a muscle spam. He rated his pain a 4/10. It was there most of the time and worse with activity. He currently treated himself with tramadol and meloxicam for pain and sometimes used a heating pad which helped some. He did not report flare ups. Initial range of motion testing revealed forward flexion to 50 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. He did not have additional limitation in range of motion of the lumbar spine following repetitive-use testing. The Veteran had functional loss, functional impairment and/or additional limitation of range of motion of the lumbar spine after repetitive use due to less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing. The Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the lumbar spine. He did not have muscle spasms or guarding of the lumbar spine resulting in abnormal gait or abnormal spinal countour. Muscle strength testing was normal. He did not have muscle atrophy. Reflex and sensory examination were normal. Straight leg raising testing was negative. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis or IVDS of the lumbar spine. The Veteran did not report the use of any assistive devices. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran's lumbar spine condition did not impact his ability to work. On September 2014 VA examination for his lumbar spine disability., the Veteran reported daily low back pain. He denied limitations with activities of daily living and stated that flare-ups did not impact the function of his lumbar spine. Initial range of motion testing revealed forward flexion to 50 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees. He was able to perform repetitive-use testing with three repetitions. He did not have additional limitation in range of motion of the lumbar spine following repetitive-use testing. The Veteran had functional loss, functional impairment and/or additional limitation of range of motion of the lumbar spine after repetitive use due to less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing. The Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the lumbar spine. He did not have muscle spasms or guarding of the lumbar spine resulting in abnormal gait or abnormal spinal contour. Muscle strength testing was normal. He did not have muscle atrophy. Reflex and sensory examination were normal. Straight leg raising testing was negative. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis or IVDS of the lumbar spine. The Veteran did not report the use of any assistive devices. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran's lumbar spine condition did not impact his ability to work. The examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during a flare-up or if the joint is used repeatedly over time. There was no decrease of range of motion with pain or repetitive use. There were no additional functional limitations with repetitive range of motion. On the most recent (January 2020) VA examination for his lumbar spine disability, the Veteran reported low back pain when he bent to tie his shoelaces, which had progressively worsened despite acupuncture, physical therapy, chiropractor, pain management without effect. An MRI of his hips showed degenerative changes in the lumbar spine. The Veteran also reported having hip/buttock discomfort left greater than right which he had been told was due to his back as MRI of hips did not reveal cause for hip pain other than the low back abnormalities. He did not report flare ups of the lumbar spine. He reported having functional loss or functional impairment of the lumbar spine in the form of limited range of motion due to pain that prevented him from standing, sitting, and walking for any length of time. He was unable to do tasks around the house and was unable to go fishing or enjoy things he used to do for fun. Initial range of motion testing revealed forward flexion to 10 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees. Pain was noted on examination; it caused functional loss. The examiner noted that the Veteran's had significant decrease in range of motion due to pain-has trouble bending over to pick things up off the floor and do activities such as tying shoes. There was evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine described as right lumbar paraspinous muscle tenderness with palpation. The severity was a 5/10 with gentle palpation; if were to apply more pressure, the Veteran reported it would be 10/10. The Veteran was not able to perform repetitive-use testing with at least three repetitions due to fear of pain. He was not being examined immediately after repetitive use over time. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examination was not being conducted during a flare up. The examination was neither medically consistent mor inconsistent with the Veteran's statements describing functional loss during flare up. The examiner noted guarding of the lumbar spine which resulted in abnormal gait or abnormal spine contour. Muscle strength testing was normal. The Veteran did not have muscle atrophy. Straight leg raising test was positive. The examiner noted mild numbness in the right lower extremity. There was no ankylosis. The Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. He did not use any assistive devices. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner noted that the Veteran's lumbar spine condition impacted his ability to work in that it limited his ability to stand, sit, or walk for any length of time and interfered with his ability to do household tasks. It also affected his quality of life as he could no longer do things he used to enjoy. such as fishing. Passive range of motion of the spine was not performed as it was not feasible to do so in a safe manner. Considering the period prior to January 27, 2020, the May 2013 and September 2014 VA reports reveal the Veteran's flexion of the lumbar spine was to 50 degrees, consistent with the criteria for the 20 percent rating which was assigned. The examinations do not show evidence of functional loss such that a higher rating would be warranted based on functional loss. The Board acknowledges the Veteran's report that his back condition resulted in daily low back pain. However, as discussed, pain itself does not rise to the level of functional loss applicable to the musculoskeletal system. Mitchell v. Shinseki, supra. Further, the Veteran denied limitations with activities of daily living and stated that flare-ups did not impact the function of his lumbar spine. The Veteran's painful motion is compensated in the 20 percent assigned. Regarding the period beginning on January 27, 2020, the Board finds that the evidence indicates that the Veteran's back disability increased in severity, consistent with the 40 percent rating assigned from the examination date. The Board notes although there were episodes of acute signs and symptoms due to IVDS, they did not require at least 6 weeks bed rest prescribed by a physician or treatment by a physician for any year during this period. As the VA examiner's findings also included no evidence of ankylosis, the Board finds that a higher rating is not warranted. The Board notes that because the higher ratings for this period require ankylosis, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis) and that his painful motion is adequately compensated in the 40 percent rating assigned. Accordingly, the evidence of record does not support a rating higher than 40 percent for the Veteran's lumbar spine disability for the period from January 27, 2020. The Board has also considered whether the Veteran has any objective neurological abnormalities associated with his lumbar spine disability. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The Veteran is already in receipt of a separate rating for radiculopathy of the right lower extremity associated with his lumbar spine disability, and that issue is not presently before the Board. Thus, the question is whether the Veteran has other associated neurological abnormalities associated with his lumbar spine disability. However, the evidence of record does not indicate that he has any other neurological abnormalities associated with his lumbar spine disability. Notably, the January 2020 VA examiner found that the Veteran had no neurologic abnormalities or findings related to a lumbar disability. Based on these considerations, the Board finds that entitlement to separate disability ratings for additional neurological abnormalities was not warranted. 5., 6. Entitlement to ratings for midtarsal DJD of the left foot in excess of 10 percent prior to June 12, 2015, and in excess of 30 percent from that date is denied. The Veteran's left foot disability is rated under Code 5284 for other foot injuries. A moderate injury warrants a 10 percent rating, a moderately severe injury warrants a 20 percent rating, and a severe injury warrants a 30 percent rating. Actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a, Code 5284, and Note following. The terms "moderate" and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. VA's revisions to the rating criteria for rating disabilities of the musculoskeletal system, effective February 7, 2021, did not include revisions to Code 5284 criteria. 82 F.R. 35719. On March 2007 VA examination, it was noted that there was tenderness on palpation of the mid tarsal area of the foot and tenderness in this area on passive manipulation of the forefoot. There was slight depression of the longitudinal arch. There was pain in the mid tarsal area on passive manipulation of the forefoot. There was no sensory deficit of the foot. On September 2007 VA examination, the Veteran complained of pain in his left foot. On September 2014 VA examination, the Veteran reported daily left foot pain. He also reported sharp intermittent pain worse at night. he denied that flare-ups impacted the function of the foot. He did not report having any functional loss or functional impairment of the foot. The examiner indicated that the Veteran's left foot disability was moderate in severity. There was no functional loss for right lower extremity attributable to the claimed condition. There was pain on movement and pain on weight-bearing. There was no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot is used repeatedly over time. There was no other functional loss during flare-ups or when the foot was used repeatedly over time. He did not report the use of assistive devices. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner indicated his left foot disability did not impact his ability to perform any type of occupational task. On January 2020 VA examination, the Veteran reported that his left foot pain was worsening, and he was taking 400 milligrams of ibuprofen as treatment. He described the pain as shooting pain in the left foot. The Veteran further reported that flare-ups impacted the function of the foot with significant pain at times and felt like it might give out at times. He further reported decreased range of motion when the pain was bad. The examiner indicated the Veteran had pain on use of the left foot and the pain was accentuated on use. Pain was also accentuated on manipulation. There was no swelling on use and no characteristic calluses. He did not have extreme tenderness of plantar surfaces on the left foot. There was no objective evidence of marked deformity or marked pronation of the left foot. The weight-bearing line fell over or medial to the great toe on the left foot. There was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line. The Veteran also did not have inward bowing or marked inward displacement and severe spasm of the achilles tendon. Contributing factors of disability included less movement than normal, pain on movement, pain on weight-bearing, swelling, interference with standing, and lack of endurance. The examiner indicated that the Veteran experienced pain with weight bearing and movement, but no weakness, fatigability, or incoordination. There was no other functional loss during flare-ups or when the foot was used repeatedly over time. The Veteran reported the occasional use of a cane for his left foot disability. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The examiner indicated that the Veteran's left foot disability caused pain which made him unable to stand and walk for any length of time. From August 7, 2006 through June 12, 2015, although the Veteran complained of pain on use of the left foot, the impairment described due to pain did not increase the level of severity of the disability to moderately severe foot injury in the absence of evidence showing that the other criteria for a disability rating in excess of 10 percent rating are met. Furthermore, the evidence does not show that the Veteran's left foot symptoms amounted to a moderately severe foot injury. The Board finds that the evidence shows that the Veteran's left foot disability throughout the appeal period was manifested by pain, which is contemplated by the currently assigned 10 percent rating for the period. The preponderance of the evidence is against a finding that the Veteran's left foot disability alone was manifested by symptoms or impairment characteristic of a moderately severe foot disability, so as to warrant the 20 percent rating under Code 5284. For example, upon reported examination findings. the September 2014 VA examiner described the Veteran's left foot disability as moderate. The preponderance of the evidence is against a finding that the service-connected left foot disability compromises the Veteran's ability to bear weight, swelling on use, or require custom shoe modifications. For these reasons, the Board finds that a 20 percent rating or a higher rating under Code 5284 is not warranted during the period on appeal. As the preponderance of the evidence is against the claim for a rating in excess of 10 percent under Code 5284, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating in excess of 10 percent for a left foot disability from August 7, 2006 to June 12, 2015 must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. From June 12, 2015, the Board finds that the symptoms and impairment reported above are most consistent with the 30 percent rating that has been assigned (for severe foot injury). A 40 percent rating is not warranted as the evidence does not show or suggest that the Veteran has actual loss of use of the foot. There is no doubt regarding a material fact to be resolved in the Veteran's favor. 38 U.S.C. § 5107(b). REASONS FOR REMAND 7. Entitlement to an effective date prior to June 12, 2015, for the award of a TDIU (on an extraschedular basis) is remanded. In November 2020, the RO granted TDIU effective June 12, 2015, the date at which the Veteran's service-connected disabilities as they are currently evaluated satisfied the schedular criteria for a TDIU rating in 38 C.F.R. § 4.16(a). In doing so, the RO did not consider whether the Veteran is entitled to a TDIU evaluation prior to June 12, 2015 on an extraschedular basis as requested by the Veteran's representative in January 2021 correspondence. See January 2021 VA Form 21-4138. The Veteran, via his representative, asserts that he retired from the U.S. Postal Service in September 2011 due to pain from multiple musculoskeletal disabilities secondary to his service-connected right ankle disability. Therefore, a remand is necessary for the AOJ to address in the first instance whether an extraschedular TDIU rating may be warranted prior to June 12, 2015. The matter is REMANDED for the following: Review the record, arrange for any further development indicated, and determine in the first instance whether the Veteran's claim for TDIU prior to June 12, 2015 on an extraschedular basis warrants referral to the Director of Compensation under 38 C.F.R. § 4.16(b). Is so, prepare the appropriate summary and proceed with such referral, and implement the Director's determination on the matter. If not, return the matter to the Board, as appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.