Citation Nr: 1743966	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  13-21 776	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to a rating in excess of 50 percent for pes planus with mild hallux valgus and degenerative change of the first metatarsalangeal joints and degenerative changes of the feet.

2. Entitlement to a rating for left knee instability prior to November 23, 2015.

3. Entitlement to a rating for right knee instability prior to November 23, 2015.

4. Entitlement to a rating in excess of 10 percent for degenerative changes of the right knee.

5. Entitlement to a rating in excess of 10 percent for degenerative changes of the left knee.

6. Entitlement to a rating in excess of 20 percent for degenerative disc disease and joint disease of the lumbar spine (low back).

7. Entitlement to compensation for total disability based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1977 to June 1981.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  The Board previously considered these issues and remanded in August 2015.  

The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. For the feet, there is no evidence of operated resection of the metatarsal head or symptoms equivalent to amputation of the great toe.

2. The weight of the evidence also shows the hallux valgus and degenerative changes, separate from flatfoot disability, do not cause moderate disability.

3. Regarding the knees, the evidence shows pain, weakness, swelling, and functional limitation but not flexion limited to 60 degrees or less or extension limited to 10 degrees or more.

4. Prior to November 23, 2015, the evidence shows general, mild instability, best classified under the knees.

5. The evidence shows that the Veteran did not have flexion of the thoracolumbar spine limited to 30 degrees or less, ankylosis, intervertebral disc syndrome, or neurologic abnormalities associated with the spine.


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 50 percent for bilateral pes planus with mild hallux valgus and degenerative change of the first metatarsalangeal joints and of the feet have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Code (DC) 5276, 5280, 5284 (2016).

2. The criteria for a 10 percent rating, but not higher, for left knee instability prior to November 23, 2015 have been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Codes 5257 (2016).

3. The criteria for a 10 percent rating, but not higher, for right knee instability prior to November 23, 2015 have been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Codes 5257 (2016).

4. The criteria for a rating in excess of 10 percent for left knee degenerative changes have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Codes 5010-5260 (2016).

5. The criteria for a rating in excess of 10 percent for right knee degenerative changes have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Codes 5010-5260 (2016).

6. The criteria for a rating in excess of 20 percent for the low back disability have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5295-5237 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Procedural duties

VA is required to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  In April 2009, the RO sent the Veteran a notice letter.

Next, VA has a duty to assist the Veteran in the development of claim.  This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.

All identified, available medical records have been obtained and considered.  
VA provided examinations for the feet, knees, and back disabilities in April 2009 and November 2015.  The AOJ substantially complied with the Board's remand directives by obtaining VA treatment records and the November 2015 VA examinations.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).  

The Veteran raised contentions that the examinations are not an accurate reflection of his disability because the examiners misreported his symptoms and did not examine his body.  The Board finds that the examinations are adequate, along with the other competent evidence of record, to rate his disability picture.  The examiners provided observations and measurements of functional impact that could only have been collected through a physical examination of his body.  Additionally, they recorded the Veteran's subjective reports and objective findings and provided evidence to address the rating criteria.  Furthermore, the Veteran provided detailed statements concerning the misreports and how his subjective symptoms differed from the examinations.  These statements will be considered in determining the disability rating.  

As such, the Board will proceed to the merits.

II. Rating analysis

The Veteran contends that his feet, knees, and back disabilities are more severe than the ratings assigned by the RO.

Disability ratings are determined by applying the criteria set forth in the 
VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal.  Hart v. Mansfield, 21 Vet. App. 505, 
509-10 (2007). 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 262; 38 C.F.R. § 4.14.

The Veteran is competent to report symptoms observable by his senses.  See Jandreau, 492 F.3d at 1377.  Such competent reports will be consider, in conjunction with other relevant medical and lay, evidence in adjudicating the disabilities on appeal.

VA is to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (stating that "the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements"); 38 C.F.R. § 4.59; 

Feet 

The Veteran's bilateral flatfeet have been rated 50 percent disabling since February 1990 under Diagnostic Code (DC) 5276.  Fifty percent is the highest rating under Diagnostic Code 5276 and the code contemplates unilateral and bilateral flatfoot, so assignment of separate ratings for each foot would not be appropriate.  38 C.F.R. § 4.71a, DC 5276.  

The Veteran's foot disability also carries the diagnoses of hallux valgus and degenerative changes of the metatarsophalangeal joints and of the feet generally.  Diagnostic Code 5280 addresses hallux valgus and provides for a single, 10 percent rating if operated on with resection of the metatarsal head or severe, if equivalent to amputation of the great toe.  38 C.F.R. § 4.71a.  Diagnostic Code 5284 applies to other foot injuries and provides for a 10 percent rating for moderate disability, 
a 20 percent rating for moderately-severe disability, and a 30 percent rating for severe disability.  Id.

The Board has reviewed the evidence and finds that the criteria for a rating in excess of 50 percent for pes planus with mild hallux valgus and degenerative change of the first metatarsalangeal joints and degenerative changes of the feet have not been met.  38 C.F.R. § 4.71a, DC 5276.

First, as noted, 50 percent is the highest rating available under Diagnostic Code 5276.  Additionally, the evidence does not show operated resection of the metatarsal head or symptoms equivalent to amputation of the great toe.  While the April 2009 and December 2015 examiners diagnosed hallux valgus, neither indicated that the Veteran had operated resection of the metatarsal head or severe symptoms equivalent to amputation of the great toe.  Instead, the examiners classified hallux valgus as mild and mild or moderate.  Treatment records and statements from the Veteran also do not show operation of the metatarsal head or severe symptoms.  
As such, a compensable rating under Diagnostic Code 5280 is not appropriate.  

Next, the Veteran's bilateral foot disability is classified as pronounced with the 
50 percent rating under Diagnostic Code 5276, and the evidence does not show that the hallux valgus and degenerative changes alone are moderate, moderately-severe, or severe for a compensable rating under Diagnostic Code 5284.  As noted, the examiners classified hallux valgus as mild and mild or moderate.  During the April 2009 examination, the Veteran reported pain as eight out of 10, weakness, stiffness, swelling, heat, redness, locking, fatigue, lack of endurance, pain worse when standing up and putting weight on his feet, and daily flare-ups lasting one to three minutes where the Veteran tried not to move his feet.  The examiner recorded ability to flex and extend the feet and pain limiting activities that required prolonged standing, walking, jogging, running, and heavy living.  In an April 2010 statement, the Veteran reported swelling, stiffness, knots, locking, pain, increased tenderness on palpation, and limited ability to flex and extend the feet.  The November 2015 examination showed the Veteran experienced chronically compromised weight-bearing, which caused limitation, but he could complete activities of daily living.  He had no history of surgery on the feet.  The Veteran had pain on movement and weight and non-weight bearing, pain caused less movement than normal and weakened movement, pain limited his ability to do activities such as jogging and running, and pain increased with repeated use over time such that he had to sit down to relieve pressure on the foot. 

It is difficult to distinguish the disabling effects of the flatfeet, hallux valgus, and degenerative changes.  However, to the extent possible, the evidence does not show that the hallux valgus and degenerative changes cause moderate disability in and of themselves.  Examiners described the conditions as mild and the majority of the Veteran's symptoms, like pain, characteristic calluses, swelling, and decreased arch height, are associated with flatfeet.  Mild foot disabilities are not compensable under Diagnostic Code 5276.  The reported duration of flare-ups as one to three minutes would not cause notable additional disability or functional impairment.  The Veteran could stop activities for three-minute duration with little to no negative impact.  The objective evidence showed no limitation of foot motion.  

The Veteran also reported symptoms such as problems with weight-bearing, prolonged walking and standing, and balance.  These symptoms and the severity of his overall foot condition were considered with the award of the 50 percent rating under Diagnostic Code 5276.  Such consideration is apparent when noting that the evidence did not show marked deformity, marked pronation, marked inward displacement or severe spasm of the tendo Achilles, which would normally be required for a 50 percent rating under that code.  38 C.F.R. § 4.71a.  As the severity of the other foot conditions was considered and is being compensated, the Board finds that a separate rating for those symptoms in addition to the rating under Diagnostic Code 5276 would constitute pyramiding.  Esteban, 6 Vet. App. at 262; 38 C.F.R. § 4.14.  

The Board has considered all potentially applicable Diagnostic Codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but the Veteran could not receive a higher rating under another Diagnostic Code.  See 38 C.F.R. § 4.71a.  He has not reported and the competent evidence, to include VA examinations, does not reflect any other foot disabilities.  Additionally, the Veteran's foot disability has presented with generally consistent symptoms such that staged ratings are not necessary.  See Hart, 21 Vet. App. at 509-10. 

Knees

Standard motion of a knee joint is from 0 degrees extension to 140 degrees flexion.  38 C.F.R. § 4.71, Plate II.  Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261.  Diagnostic Code 5260 concerns limitation of leg flexion.  

A zero, non-compensable rating is warranted where flexion is limited to 60 degrees and a 10 percent rating is warranted for flexion limited to 45 degrees.  A 20 percent rating is warranted where flexion is limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260.

Diagnostic Code 5261 pertains to limitation of leg extension.  A 10 percent rating is warranted where extension is limited to 10 degrees.  A 20 percent rating is warranted where extension is limited to 15 degrees.  A 30 percent rating is warranted where extension is limited to 20 degrees.  38 C.F.R. § 4.71a, DC 5261.

Under Diagnostic Code 5257, a 10 percent rating is warranted for mild impairment, 20 percent rating is warranted for moderate impairment, and a maximum, 30 percent rating is warranted for severe impairment from recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, DC 5257.

Under Diagnostic Code 5258, a 20 percent rating is warranted where there is evidence of dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the knee joint.  38 C.F.R. § 4.71a, DC 5258.

Under Diagnostic code 5259, symptomatic removal of semilunar cartilage in the knee warrants a 10 percent rating.  38 C.F.R. § 4.71a, DC 5259.

Under Diagnostic Code 5262, 20, 30, and 40 percent ratings are warranted for malunion of the tibia and fibula with moderate knee or ankle disability, marked knee or ankle disability, and nonunion of the tibia and fibula.  38 C.F.R. § 4.71a, DC 5262.  Finally, ratings from 30 to 60 are available for ankylosis of the knee joint.  38 C.F.R. § 4.71a, DC 5256.

A claimant who had both limitation of flexion and limitation of extension of the same leg may be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg.  However, separate ratings require separate compensable symptomatology.  VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (2004).

A claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257.  However, separate ratings require separate compensable symptomatology.  VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (1998); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997).

The Veteran currently receives 10 percent ratings for both left and right knee degenerative changes (rated as limitation of flexion) and 30 percent ratings for instability beginning November 23, 2015.  

Based on the record, the Board finds that the degenerative changes in the Veteran's knees do not meet the criteria for ratings in excess of 10 percent.  See 38 C.F.R. § 4.71a, DC 5003-5260.  In this regard, the evidence shows pain, weakness, swelling, and functional limitation but not flexion limited to 60 degrees or less or extension limited to 10 degrees or more.  During the April 2009 examination, the Veteran reported constant pain as nine out of 10, weakness, stiffness, swelling, heat, redness, locking, fatigue, lack of endurance, pain precipitated by prolonged standing, walking, sitting, and bending, and daily flare-ups in knee pain three times per day, which lasted for a few minutes and limited ambulation.  He denied dislocation.  The examiner found mild to moderate crepitus, range of motion from zero to 130 with pain and grimacing, increased pain during extension, but no evidence of swelling, redness, genu varum or valgum.  A July 2011 diagnostic report for the left knee shows early patellar chondromalacia with mild swelling and signal alteration in the cartilage of lateral facet, small joint effusion, and no abnormalities in the menisci, cruciate ligaments, or bones.

The November 2015 examiner recorded bilateral knee pain, extension to zero, flexion to 70, crepitus, no tenderness, weakened movement, muscle strength at knee level as four out of five (noted to be partially due to Veteran's back condition), no atrophy, no ankylosis, no recurrent subluxation, and no meniscus conditions.  The examiner noted that flexion and extension were limited by pain, there was no change in range of motion after repetitive testing, the examination was neither medically consistent nor inconsistent with Veteran's statements of functional loss with repetitive use or during a flare-up, and pain, weakness, fatigability, and incoordination do not significantly limit functional ability over time or during a flare-up.  The Veteran reported limitations with prolonged running, jogging, kneeling, squatting, walking, standing, climbing, jumping, and walking on uneven terrain.  The examiner found he could perform activities of daily living, although he had the reported limitations.  

The Veteran's knees had flexion measured to 70 degrees or more and full extension.  While he reported pain, fatigue, stiffness, locking, weakness, and swelling that caused functional limitation with prolonged walking, standing, sitting, and bending, he had actual motion beyond the 10 degrees of limited extension and 60 degrees of limited flexion for compensable ratings.  See Mitchell, 25 Vet. App. at 37; 38 C.F.R. § 4.71a, DC 5260, 5261.  His description of flare-ups was increased pain for a few minutes every day that limited ambulation; he did not describe additional limitations in range of motion.  Moreover, as the Veteran's bilateral knee disability did not satisfy the requirements for a compensable rating for limitation of motion, the 10 percent rating assigned compensates painful motion and symptoms such as fatigue, weakness, and functional impairment.  See 38 C.F.R. § 4.59; DeLuca, 
8 Vet. App. at 202.  Therefore, the competent and probative evidence weighs against a rating in excess of 10 percent for limited motion.  See 38 C.F.R. § 4.71a. 

As noted, the 30 percent ratings for instability are the highest ratings under Diagnostic Code 5257.  38 C.F.R. § 4.71a, DC 5257.  However, prior to November 23, 2015, the Board finds that 10 percent ratings for mild instability are warranted. 

During the April 2009 examinations, the Veteran reported instability associated with the back, feet, and knees.  The examiner found he had an antalgic gait, noted to be mostly related to foot pain.  A May 2009 treatment record notes antalgic gait due to back and foot pain.  The evidence also shows that the Veteran used a cane during this period.  He did not have the cane during the April 2009 examination but, the examiner observed him steady himself on furniture when he stood from a seated position.  The Board notes that there is no corresponding code specifically for imbalance or instability in the foot or back Diagnostic Codes.  While the Veteran's knees may not have been the sole cause of his instability, Diagnostic Code 5257 is most appropriate to rate the instability symptoms he experienced from a combination of his knees, back, and foot disabilities.  As such, the Board finds that 10 percent ratings are warranted for mild instability on each side associated with service-connected disabilities.  See 38 C.F.R. § 4.71a, DC 5257.  

Even so, the Board finds that the evidence during this period does not more nearly approximate moderate or severe instability.  The April 2009 examination classified knee laxity as mild.  The examiner also noted all knee ligaments were intact without laxity.  The Veteran provided subjective complaints of instability, but objective testing showed no mechanical cause for instability.  Mild instability is also evidenced by the fact that the Veteran did not feel the need to bring his cane to the April 2009 examination.  Whereas, by the 2015 VA examination, it was noted that he used a cane constantly for the back, knee, and feet conditions.  Given this evidence, the criteria for a rating in excess of 10 percent for instability prior to November 23, 2015 have not been met.  See 38 C.F.R. § 4.71a, DC 5257. 
 
All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive a higher disability rating for his knees during this period based on the evidence.  See 38 C.F.R. § 4.71a.  There is no evidence of ankylosis, meniscal conditions, or impairment of the tibia or fibula per the examination reports.  The knee symptoms were generally consistent during the period on appeal such that additional staged ratings are not appropriate.  See Hart, 21 Vet. App. at 509-10.  

Back

Disabilities of the low back are rated under section 4.71a for the musculoskeletal system.  The Veteran's back is rated 20 percent disabling based on the General Rating Formula for the Spine.  38 C.F.R. § 4.71a.  

Under the General Rating Formula for the Spine, a 20 percent evaluation is warranted where the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating requires unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.  

Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes.  Under those criteria, found at Diagnostic Code 5243, a 20 percent evaluation requires incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  
A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months.  There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities.  38 C.F.R. § 4.71a.  

The Board has reviewed the record and finds that the criteria for a rating in excess of 20 percent for the low back disability have not been met or more nearly approximated.  38 C.F.R. § 4.71a, DC 5295.

The evidence shows that the Veteran did not have flexion of the thoracolumbar spine limited to 30 degrees or less, ankylosis, or intervertebral disc syndrome.  The April 2009 examiner recorded flexion to 70 degrees with an additional loss to 
60 degrees after three repetitive movements primarily due to pain.  The examiner found tenderness and pain and grimacing with range of motion but no redness, swelling, or spasm.  During the examination, the Veteran reported constant pain up to nine out of 10, weakness, stiffness, heat, instability, locking, fatigue, and lack of endurance.  He noted that pain was brought on by movement, tension, or stress and he experienced severe pain on a daily basis lasting for a very short time, up to 
30 seconds, brought on by sudden movement from sitting to standing.  He reported functional limitations with heavy lifting, repetitive bending, prolonged standing, playing with grandchildren, and playing sports.  He denied incapacitation episodes.  In an April 2010 statement, the Veteran wrote that he had "incapacitating episodes" in the form of intense pulsing pain at the base of the back, which lasted three to five seconds and caused collapse of the knees and forward flexion.   

During the November 2015 examination, the Veteran did not report flare-ups but reported functional loss as limitations with prolonged/repetitive standing, walking, bending, heavy lifting, crouching, and stooping.  The examiner found that he could perform activities of daily living except for limitations from the described prolonged/repetitive activities.  The examiner recorded flexion to 40 degrees, weakened movement, no guarding or muscle spasm, no localized tenderness, no ankylosis, no IVDS, and no change in range of motion after repetitive testing.  He noted pain caused limitation of motion and limitation of motion contributed to functional loss.  The examiner also found that the examination was neither medically consistent nor inconsistent with the Veteran's statements of functional loss with repetitive use over time or flare-ups and pain, weakness, fatigability, and incoordination did not limit functional ability with repeated use over time or during flare-ups.  In a September 2016 statement, the Veteran's wife wrote that many of the Veteran's movements are painful and activities such as dancing, bowling, and prolonged sitting are pretty much prohibitive.  Treatment records from 2016 show the Veteran requested and was prescribed a back brace.

The Veteran's flexion was measured to 60 and 40 degrees.  He reported pain, weakness, stiffness, heat, instability, locking, fatigue, and lack of endurance, but he had actual motion beyond the 30 degrees required for a 40 percent rating.  See Mitchell, 25 Vet. App. at 37; 38 C.F.R. § 4.71a, DC 5237.  Pain, weakness, fatigue, and lack of endurance were recorded by the examiners' observations of limitations from pain and after repeated use.  Imbalance symptoms caused by locking and instability were addressed in the knee analysis above.  His description of flare-ups was severe pain for up to 30 seconds that caused him to collapse or bend over; he did not describe additional limitations in range of motion.  The 30-second or less duration of flare-ups would have a nominal impact on functional ability.  Moreover, there is no evidence of ankylosis of the thoracolumbar spine.  Indeed, the 2015 examination report reflects such.  

Turning to incapacitating episodes, under the regulation, these are characterized by required treatment and bedrest prescribed by a physician.  See 38 C.F.R. § 4.71a, DC 5243, Note (1).  The Veteran's reports of "incapacitating episodes" of intense pain for three to five seconds do not meet this definition used by VA.  Additionally, the examiners found he did not have IVDS.  With flexion beyond 30 degrees, no ankylosis, and no IVDS, a rating in excess of 20 percent for the low back is not warranted.  See 38 C.F.R. § 4.71a. 

Additionally, Note (1) to the General Rating Formula for the Spine directs that associated neurologic abnormalities be rated separately.  38 C.F.R. § 4.71a.  The weight of the evidence shows that the Veteran does not have radiculopathy, bowel or bladder impairment, or any other neurologic abnormalities associated with his back disability.  As such, Separate ratings are not appropriate, as explained next.  

During the April 2009 examination, the Veteran reported pain sometimes radiating from the base of his back to his thigh.  The examiner noted that the straight leg raise test was positive bilaterally, but found no radiculopathy.  The Veteran denied loss of bowel or bladder control.  In the April 2010 statement, the Veteran reported periodic or episodic weakness in the extremities that affected bowel and bladder movements.  Similarly, he wrote in July 2010 that his spinal damage and diabetes caused periods of uncontrollable bowels.  The Board notes that VA records do not show treatment for bowel or bladder incontinence.  The November 2015 examiner recorded lower extremity muscle strength as four out of five, no muscle atrophy, normal reflexes, normal sensation, negative straight leg raising test on the right, positive on the left, moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness.  The examiner concluded that the Veteran did not have radiculopathy and had no neurologic abnormalities associated with his back.  
VA treatment records in 2013 and 2016 show the Veteran has diabetic peripheral neuropathy.  

The Veteran described the pain in his legs as coming from his back.  However, medical providers and examiners have not diagnosed radiculopathy.  Instead, the medical evidence shows that the Veteran has peripheral neuropathy associated with diabetes, which was likely the source of his lower extremity symptoms.  The Board notes that diabetes is not service-connected.  The Veteran also reported bowel and bladder dysfunction.  However, VA examinations and treatment records show no objective evidence of such.  Furthermore, the examiners identified no neurologic abnormalities, including bowel or bladder impairment, related to the low back disability.  The Board finds the medical providers' opinions more probative and deserving of greater weight than the Veteran's lay statement because the medical providers and examiner have the specialized training and experience necessary to make such diagnoses.  Given the clinical findings, the Board finds that the weight of the evidence is against finding lower extremity symptoms or bowel or bladder impairment caused by the low back disability.  As such, a separate rating under the Note (1) to the General Rating Formula for the Spine is not appropriate.   

All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive a higher rating for his back disability during this period based on the evidence.  See 38 C.F.R. § 4.71a.  The symptoms were generally consistent during the period on appeal such that staged ratings are not appropriate.  See Hart, 21 Vet. App. at 509-10.  

The Board notes that the Veteran has consistently asserted that VA providers and adjudicators mischaracterized his disability and the correct characterization of his service-connected disability is Diffuse Idiopathic Skeletal Hyperostosis (DISH), which affects his feet, ankles, shins, knees, back, shoulders, elbow, and neck.  The Board understands the Veteran would like the medically accurate classification.  Nevertheless, VA disability ratings are based on the disabling effects on specific body parts or systems.  See 38 C.F.R. Part 4.  Regardless of the classification, the Veteran would receive the same ratings/compensation for limitations in his feet, knees, and back as he has in this decision.  He should file a formal claim for any joints which he feels are related to his service-connected disabilities but have not been compensated.


ORDER

A rating in excess of 50 percent for bilateral pes planus with mild hallux valgus and degenerative change of the first metatarsalangeal joints and of the feet is denied.

A 10 percent rating, but not higher, prior to November 23, 2015 for instability on the left side is granted.

A 10 percent rating, but not higher, prior to November 23, 2015 for instability on the right side is granted.

A rating in excess of 10 percent for left knee degenerative changes is denied.

A rating in excess of 10 percent for right knee degenerative changes is denied.

A rating in excess of 20 percent for the low back disability is denied.



REMAND

The Veteran asserts that his service-connected disabilities render him permanently disabled and unable to work.  A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  Generally, to be eligible for TDIU, a percentage threshold must be met.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  The Veteran's service-connected disabilities combine for an 80 and then 90 percent rating, which meets the threshold requirements for TDIU.  See 38 C.F.R. §§ 4.25, 4.16(a).  The remaining question is whether these disabilities prevent him from being able to secure and follow employment.  In his January 2016 application for TDIU, the Veteran indicated he completed four years of college, worked at the United States Postal Service and the Department of Treasury, and was an education consultant.  The April 2009 and November 2015 examiners discussed the general functional limitations of the Veteran's back, feet, and knee disabilities but did not address how those functional limitations would affect his ability to work.  Such competent medical evidence would assist the Board in determining whether the Veteran qualifies for TDIU compensation under the applicable regulations.  

Accordingly, the case is REMANDED for the following actions:

1. Request competent medical evidence on the effects of the Veteran's service-connected disabilities from the November 2015 examiner, or another appropriate qualified VA clinician.  [Note: This is not a request for a social and industrial survey.]  The examiner/clinician should review the claims file and provide answers to the following:

How would the Veteran's back, feet, knees, ankles, shin splint disabilities affect his ability to complete tasks as an educational consultant or work for the Postal Service as consistent with his work history?  

In general, comment on the impact of the Veteran's service-connected disabilities on his ability to function in an occupational setting and describe any functional impairment/limitations caused by this service-connected disabilities.  Please consider his and his wife's reports that he is totally disabled.

If any requested opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge.  If new/updated in-person/physical examination(s) are need, then schedule the Veteran for such.

2. If any benefit sought remains denied, then issue a supplemental statement of the case and return the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

8

______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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