Citation Nr: 18160554
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 10-32 657
DATE:	December 27, 2018
ORDER
Entitlement to a higher disability rating of 20 percent for cervical spine sprain prior to June 11, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits.
Entitlement to a higher disability rating of 30 percent, from June 11, 2012, for cervical spine sprain is granted, subject to the laws and regulations governing the payment of monetary benefits.
Entitlement to a disability rating in excess of 20 percent for lumbosacral strain prior to April 9, 2010, is denied.
Entitlement to a higher disability rating of 40 percent from April 9, 2010, for lumbosacral sprain is granted, subject to the laws and regulations governing the payment of monetary benefits.
Entitlement to a disability rating in excess of 10 percent for left posterior tibial tendonitis is denied.
Entitlement to a disability rating in excess of 10 percent for right posterior tibial tendonitis prior to July 2, 2012, and to a rating higher than 20 percent, thereafter, is denied. 
FINDINGS OF FACT
1. Prior to June 11, 2012, the Veteran’s cervical strain more nearly approximated painful limitation of forward flexion between 15 degrees and 30 degrees.
2. Beginning on June 11, 2012, the Veteran’s cervical strain more nearly approximates painful limitation of forward flexion of 15 degrees or less without ankylosis or incapacitating episodes.
3. Between October 24, 2007, and April 9, 2010, the Veteran’s lumbosacral strain did not approximate forward flexion of 30 degrees or less.
4. Since April 9, 2010, the Veteran’s lumbosacral strain more nearly approximates painful limitation of forward flexion of 30 degrees or less.
5. The Veteran’s left ankle was not manifested by a moderate limitation of motion.  X-rays showed normal impressions of the left ankle.
6. Prior to July 2, 2012, the Veteran’s right ankle exhibited moderate limitation of motion. From July 2, 2012, the Veteran’s right ankle exhibited not more than marked limitation of motion.  The Veteran did not exhibit ankylosis of the right ankle.  X-rays showed normal impressions of the right ankle.
CONCLUSIONS OF LAW
1. The criteria for a higher rating of 20 percent, but no higher, for a cervical sprain prior to June 11, 2012, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5237 (2017). 
2. The criteria for a higher rating of 30 percent, but no higher, for a cervical sprain since June 11, 2012, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R.  §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5237 (2017).
3. The criteria for a rating for a lumbosacral strain, in excess of 20 percent, between October 24, 2007, and April 9, 2010, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5237 (2017). 
4. The criteria for a higher rating of 40 percent for a lumbosacral strain since April 9, 2010, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5237 (2017). 
5. The criteria for a disability rating higher than 10 percent for left ankle posterior tibial tendonitis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003, 5271 (2017).
6. Prior to July 2, 2012, the criteria for a disability rating higher than 10 percent for right ankle posterior tibial tendonitis have not been met. Since July 2, 2012, the criteria for a disability rating higher than 20 percent for right ankle posterior tibial tendonitis have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5271 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from April 2001 until June 2005.
This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2005, May 2010 and March 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2011. A transcript of the hearing is associated with the electronic claims file.
A Joint Motion for Remand (JMR) was filed and granted by the Court of Veterans Claims (CAVC) in May 2013. The Board issued prior remands in May 2012, September 2013, April 2014, May 2016, March 2017 and October 2017.
Increased Rating
Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.
Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.
Spine Disabilities
Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching of the spine. The disabilities rated under this General Rating Formula include lumbosacral or cervical strain (DC 5237) and degenerative arthritis of the spine (DC 5242) (for degenerative arthritis of the spine, see also DC 5003).
Under 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, for ratings for the cervical spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height (10 percent). 
A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned when forward flexion of the cervical spine is 15 degrees or less; or there is favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned if there is unfavorable ankylosis of the entire cervical spine; and a 100 percent rating may be assigned if there is unfavorable ankylosis of the entire spine. 
For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees.
As to the ratings for the thoracolumbar spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 
A 20 percent rating is warranted for 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 assigned if there is forward flexion of the thoracolumbar spine of 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is assigned if there is unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating may be assigned if there is unfavorable ankylosis of the entire spine. 
For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees.
When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.
Objective evidence of neurologic abnormalities of the spine are rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula at Note (1).
Under the Incapacitating Episodes Rating Formula, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. 38 C.F.R. § 4.71a , Incapacitating Episodes Rating Formula. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve months. Id. For purposes of evaluation under this rating formula, an “incapacitating episode” is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest as prescribed by a physician and treatment by a physician. Id. at Note (1).
1. Cervical Sprain
By way of history, in an October 2005 rating decision, the Veteran was granted service connection for cervical strain with an evaluation of 10 percent, effective June 4, 2005. In a March 2013 rating decision, the assigned disability rating for cervical strain was increased to 20 percent, effective June 11, 2012. In a November 2018 appellate brief, through her representative, the Veteran appealed the assigned disability ratings for the cervical spine for the entire appeals period.
Prior to June 11, 2012
Turning to the evidence of record, a July 2005 VA examination reflects the following for the cervical spine: range of motion (ROM) of the cervical spine revealed forward flexion as from 0-45 degrees, pain starting at 40 degrees. Extension was from 0-30 degrees, pain starting at 30 degrees. Left lateral flexion was from 0-45 degrees, with minimal pain. Right lateral rotation was from 0-50 degrees, pain starting at 40 degrees. Right lateral rotation was from 0-60 degrees, pain starting at 45 degrees.  There was no loss of muscle mass; neither was there any sensory abnormality or neurological abnormality noted besides pain.  The Veteran did not exhibit lack of endurance or incoordination in the cervical spine ROM evaluation; pain caused the Veteran’s most functional impact. 
The examiner noted that there was no structural deformity but tense trapezius muscles in the posterior without any inflammation.  X-rays could not be performed because she was 7.5 months pregnant at that time.
The April 2008 VA examination reflects the following ROM for the cervical spine: forward flexion to 35 degrees, extension to 35 degrees, left lateral flexion to 25 degrees, right lateral flexion to 25 degrees, left rotation to 50 degrees, right rotation to 50 degrees. The examiner noted that repetitive use causes increasing soreness and tenderness; no specific flare-ups were noted.  The examiner also remarked that the Veteran exhibited pain, tenderness, spasms over the neck and back; no incapacitating episodes occurred in the past year.  Normal x-ray impressions for the cervical and lumbar spine were diagnosed. At that time, the Veteran reported that she was working.
The April 2010 VA examination for spine showed complaints of aching, soreness, and tenderness over the cervical and over the lumbar spine. She reported that a lot of repetitive use bothered and irritated her. The examiner opined that she would be limited to sedentary type of work.  ROM diagnostic testing of the neck showed forward flexion up to 35 degrees, extension up to 35 degrees, left lateral flexion to 35 degrees, right lateral flexion to 35 degrees, and left lateral rotation to 55 degrees and right lateral rotation to 55 degrees. 
The Veteran reported that repetitive use increased the amount of pain; she had flare ups with heavy use; tenderness and pain throughout the ROM; there were no incapacitating episodes; no evidence of radiculopathy; and no use of assisted devices.  The examiner opined that the Veteran could not do any work with prolonged standing, repetitive bending and lifting, and would have to do more sedentary-type work.
Based on the above, the Board finds that for the period prior to June 11, 2012, the Veteran’s cervical strain more nearly approximated limitation of motion that warrants a 20 percent rating: forward flexion of greater than 15 degrees but not greater than 30 degrees or combined range of motion of the cervical spine not greater than 170 degrees. In this case, while the evidence does not indicate that the Veteran’s forward flexion of the cervical spine was greater than 30 degrees, or that the combined range of motion was 170 degrees or less, the ROM for the forward flexion of the cervical spine combined with the Veteran’s consistent complaints of aching, pain, soreness and tenderness more nearly approximated a 20 percent disability rating.  The April 2008 and April 2010 VA examinations indicated that the Veteran manifested forward flexion to 35 degrees, which is separated by only 5 degrees from the ROM required by the 20 percent disability rating. Moreover, the VA examiner in April 2010 opined that the Veteran should be limited to sedentary-type of work, which showed that the Veteran’s limited ROM of the cervical spine impairs her earning capacity.
Therefore, with reasonable doubt resolving in the Veteran’s favor, the Board finds that the disability picture presented in the record for the Veteran’s cervical strain symptoms more nearly approximated limitation of motion of a higher rating that warrants a 20 percent rating under the criteria for rating spine disabilities prior to June 11, 2012. See 38 C.F.R. §§ 4.3, 4.7; DeLuca v. Brown, 8 Vet. App. 202 (1995) (in evaluating 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). 
However, the Board finds that the evidence of record is against a finding of a disability rating higher than 20 percent prior to June 11, 2012.  Specifically, to warrant a 30 percent rating, the Veteran must exhibit forward flexion of 15 degrees or less or favorable ankylosis of the entire cervical spine. The Board notes that ankylosis is defined as fixation of a joint in a particular position. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5). In this case, the medical evidence reflects that the Veteran consistently exhibited forward flexion of 35 degrees. The Veteran exhibited pain but there is no persuasive evidence in the record that gives a disability picture that the Veteran’s forward flexion of the cervical spine was 15 degrees or less.  Furthermore, there is no evidence that the Veteran exhibited ankylosis of the cervical spine.  On the other hand, the medical evidence reflects that the Veteran’s forward flexion was to at least 35 degrees and shows normal x-ray impressions. Nor does the evidence indicate that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 
In reaching this determination, the Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59, as well as the holding in Deluca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain. For a 30 percent evaluation, forward flexion of the cervical spine must be actually or functionally limited to 15 degrees or less, or exhibit favorable ankylosis of the entire cervical spine. Moreover, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, but pain alone does not warrant a higher disability rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute functional loss, but is just one fact to be considered when evaluating functional impairment). In order to assign a higher rating based on functional loss due to pain, the pain “must actually affect some aspect of ‘the normal working movements of the body.’” Id. at 43 (quoting § 4.40). 
Here, while the Veteran reported neck pain, tenderness and soreness and exhibited some limited range of motion, these symptoms are specifically contemplated by her disability rating, which has been increased to 20 percent, with benefit of the doubt resolving in the Veteran’s favor. Moreover, there is no persuasive evidence of record that the Veteran’s subjective complaints of pain would rise to the level of an individual who actually experiences functional loss at the level of 30 percent during this period, severe enough that a disability picture would result in a favorable ankylosis of the entire cervical spine or that there would be a loss of 20 degrees of forward flexion of the cervical spine. Accordingly, in sum, the Board finds that a higher rating of 20 percent for the Veteran’s cervical strain is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine to the extent noted.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinki, 1 Vet. App. 49 (1990).   

Effective June 11, 2012
In June 2012, the Veteran was afforded another VA examination for neck conditions, which reflected that the examiner reviewed the Veteran’s claims file and noted that the Veteran reported more pain spasms in the neck, was involved in motor vehicle injuries and that no operation was performed.  The Veteran reported flare ups that impact the function of the cervical spine. Initial ROM showed the following: forward flexion to 25 degrees, extension to 0 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 40 degrees, left lateral rotation to 40 degrees.  Objective evidence of painful motion began at 0 degrees for the forward flexion, 0 degrees for extension, 0 degrees for right lateral flexion, 0 degrees for left lateral flexion, 0 degrees for right rotation and 0 degrees for left rotation.  ROM measurements after repetitive use testing showed the following: the Veteran was able to perform repetitive-use testing with 3 repetitions; forward flexion up to 25, extension up to 0, right lateral flexion up to 25, left lateral flexion up to 25, post right lateral rotation up to 40 and left lateral rotation up to 40.  The examiner noted that the Veteran did not have additional limitation in ROM of the cervical spine following repetitive use testing but did exhibit functional loss and impairment. The Veteran exhibited less movement than normal, pain on movement, interference with sitting, standing and/or weight-bearing, and guarding or muscle spasm of the cervical spine that does not result in abnormal gait or spinal contour. The examiner noted that the Veteran did not have IVDS or exhibit arthritis of the cervical spine. The VA examiner opined that the Veteran’s neck condition impacted her ability to work in that she would be limited to sedentary work.
In a May 2014 addendum, a VA orthopedist opined that it is more likely than not that pain, but not weakness, fatigability or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time and that there is additional limitation due to pain with change in the baseline range of motion due to “pain on use or during flare-ups.” However, it would be pure speculation to state what additional ROM loss would be present due to pain on use or during flare-ups since the veteran is not examined during flare-ups. 
The April 2017 VA examination for neck (cervical spine) conditions reflects diagnoses of cervical strain and degenerative arthritis of the spine. The Veteran reported she is unable to turn her neck due to stiffness. She also reported that she works part time as a licensed practical nurse. The Veteran reported quick flare-ups that last seconds with quickly turning her neck and getting sharp pain. The Veteran claimed that her neck pain will resolve with positional change.  The Veteran did not report that she has any functional loss or functional impairment of the cervical spine regardless of repetitive use. Initial ROM test showed abnormal or outside of normal range: forward flexion to 35 degrees, extension to 35 degrees, right lateral flexion to 45 degrees, left lateral flexion to 45 degrees, right lateral rotation to 60 degrees and left lateral rotation to 60 degrees. The examiner noted that the abnormal ROM did not contribute to a functional loss and that the Veteran exhibits mild DJD on the cervical spine radiogram dated April 2017. The examiner also reported that no pain was noted on examination. Furthermore, there was no evidence of pain with weight bearing. The examiner observed that the Veteran was able to perform repetitive use testing with at least 3 repetitions but there was no additional loss of function or range of motion after 3 repetitions. The examiner opined that the Veteran was not being examined immediately after repetitive use over time because the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time and that it would be mere speculation to state that pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time because it would vary with activity.  Similarly, the examiner stated that an examination for flare ups was not being conducted and that the examination is neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups, and that the examiner is unable to say without mere speculation that pain, weakness, fatigability or incoordination significantly limits functional ability with flare-ups because it would vary with activity. The Veteran did not exhibit any guarding or muscle spasm of the cervical spine.
Diagnostic tests showed no radiculopathy, ankylosis, IVDS or other neurologic abnormalities. The examiner opined that the Veteran has a history of non service-connected depression and generalized anxiety disorder which could have a negative impact on pain receptors.  The examiner indicated that pain is a symptom and not a diagnosis and will stop a person in performing a movement when it hurts. Otherwise, the Veteran’s neck is structurally intact on radiograms and is less likely than not to affect strength, fatigability or incoordination of the cervical spine joints or significantly limit functional ability during flare-ups, or joint use repeatedly over a prolonged period of time. It would be mere speculation to state what degree ROM loss would be during a flare up.  X-ray of the cervical spine showed an impression of minimal degenerative changes at C5-C6 level.
The November 2017 VA examination report for the cervical spine showed diagnoses of cervical strain and degenerative arthritis of the spine. The Veteran reported she has decreased rotation of the neck and gets occasional sharp pain. The Veteran did not report any flare-ups but reported functional loss and impairment due to decreased ROM and occasional sharp, piercing pain. Initial ROM showed abnormal or outside of normal range: forward flexion to 10 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 35 degrees, left lateral rotation to 20 degrees.  The examiner remarked that pain was noted on examination and causes functional loss. There was no evidence of pain with weight bearing but objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine, but mostly tender over the trapezius bilaterally. The Veteran was able to perform repetitive use testing with at least three repetitions.  Additional loss of function or range of motion after three repetitions were the following: forward flexion to 10 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right lateral rotation to 35 degrees, left lateral rotation to 30 degrees.
The examiner opined that the Veteran was not being examined immediately after repetitive use over time because the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time and that it would be mere speculation to state that pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time because it would vary with activity.  The examiner noted that flare-ups were not applicable.  The Veteran did not exhibit any guarding or muscle spasm of the cervical spine.
The examiner noted that there was no guarding or muscle spasm of the cervical spine. The Veteran did not have radiculopathy, ankylosis, neurologic abnormalities or IVDS of the cervical spine. The examiner observed that there was pain with non-weight bearing of the cervical spine and pain with passive ROM of the cervical spine in all directions.  The examiner opined that it would be mere speculation if repeated use over time would cause additional functional impairment or to express this in additional ROM and it is not feasible to do so with any degree of medical certainty. The examiner explained that the Veteran was not examined after repeated use over time, and therefore, cannot give a ROM; also, functional limitation over time may vary depending on the type of activity, length of activity or if veteran was also on any medication, which might also affect her function and pain levels.  There are too many variables that can attribute to functional impairment.
X-ray impression of the cervical spine was minimal degenerative changes at the C5-6 level. The examiner observed that the Veteran appeared to be in a lot of pain with all ROM testing, which may be attributing to her decreased ROM of the cervical spine. When asked to move her cervical spine in directions, she would move her entire body and was repeatedly told not to move her entire body, but only the cervical spine. The examiner then opined that the Veteran is intolerant of repetitive rotation of the cervical spine and has decreased ROM and that a sedentary job would be feasible.  
Based on the above, the Board finds that, effective June 11, 2012, the Veteran’s cervical strain has more nearly approximated to a disability picture that warrants a 30 percent evaluation.  In this case, the June 2012 VA examination reflects that the Veteran’s forward flexion was to 25 degrees but experienced pain beginning at 0 degrees and in the November 2017 VA examination, the Veteran was only able to forward flex to 10 degrees. Moreover, the Veteran continuously reported that she experienced pain in her back since June 11, 2012.  
The Board notes that the ROM test results in the April 2017 VA examination is an anomaly, in that the Veteran exhibited forward flexion of 35 degrees and that objective pain was not noted.  However, similar to the June 2012 and the November 2017 VA examinations that show limited ROM of the Veteran’s cervical spine due to pain, the VA examiner in April 2017 indicated that the Veteran’s neck pain may limit ROM and that pain is a symptom and not a diagnosis and will stop a person in performing a movement when it hurts. Furthermore, upon examination in April 2017, the examiner concluded that the Veteran would not be able to perform in an occupation that required heavy lifting and bending.
Therefore, with reasonable doubt resolving in the Veteran’s favor, the Board finds that the disability picture presented in the record for the Veteran’s cervical strain symptoms, effective June 11, 2012, more nearly approximates limitation of motion of a rating that warrants 30 percent under the criteria for rating spine disabilities. See 38 C.F.R. §§ 4.3, 4.7; DeLuca v. Brown, 8 Vet. App. 202 (1995) (in evaluating 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). 
In order to warrant a rating higher than 30 percent under the General Rating Formula, the evidence must show unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Here, there is no evidence of ankylosis. VA examiners consistently noted that there was no ankylosis, and the Veteran clearly maintained some range of motion of her cervical spine. Therefore, the Board finds that the evidence of record is against a finding that the Veteran has had ankylosis at any time during the appeal period. 
The Board has also considered whether a higher evaluation may be warranted due to incapacitating episodes associated with intervertebral disc syndrome. However, the lay and medical evidence of record do not reflect that the Veteran has had any incapacitating episodes of the cervical spine during the entire appeals period. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 6.
The Board has also considered whether the Veteran is entitled to separate ratings for associated objective neurological abnormalities. However, VA examinations reflect that the Veteran does not exhibit any neurological abnormalities.
Therefore, the symptomatology associated with the Veteran’s cervical spine warrants a 30 percent rating, but not higher, effective June 11, 2012.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine to the extent noted.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinki, 1 Vet. App. 49 (1990).   
2. Lumbar Sprain
By way of history, in an October 2005 rating decision, the Veteran was granted service connection for lumbosacral strain with an evaluation of 10 percent, effective June 4, 2005. In a May 2010 rating decision, effective October 2007, the Veteran’s disability rating for lumbosacral strain was increased to 20 percent. See May 2010 Statement of the Case. In her July 2010 Substantive Appeal, the Veteran did not appeal the disability rating for lumbosacral strain after it was increased to 20 percent. In the March 2011 appellate brief, at the July 2011 hearing testimony, and in the November 2018 appellate brief, the Veteran only appealed the issue of a 20 percent disability rating for lumbosacral strain, which is effective beginning on October 24, 2007.  Therefore, the Board will only address the issue of a higher disability rating in excess of 20 percent for lumbosacral strain, effective October 24, 2007. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
Prior to April 9, 2010
Turning to the medical and lay evidence of record, the April 2008 VA examination reflects the following ROM for the lumbosacral spine: forward flexion from 0-80 degrees, extension from 0-15 degrees, left lateral flexion from 0-15 degrees, right lateral flexion from 0-15 degrees, left lateral rotation from 0-15 degrees, right lateral rotation from 0-15 degrees.
The examiner noted that repetitive use causes increasing soreness and tenderness; no specific flare-ups were noted.  The examiner also remarked that the Veteran exhibited pain, tenderness, spasms over the neck and back; no incapacitating episodes occurred in the past year.  Normal x-ray impressions for the cervical and lumbar spine were diagnosed. 
A September 2008 VA treatment record shows that the Veteran reported frequent backaches.  
Based on the evidence of record, the Board finds that a disability rating higher than 20 percent between October 24, 2007, and April 9, 2010, is not warranted.  Specifically, to warrant a next rating of 40 percent rating for the thoracolumbar spine, the Veteran must exhibit forward flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. In this case, the medical evidence reflects that the Veteran exhibited forward flexion of up to 80 degrees. 
Here, the Board acknowledges that the Veteran reported pain, tenderness and soreness and exhibited some limited range of motion.  However, these symptoms are specifically contemplated by her disability rating which was evaluated at 20 percent that dictates that the Veteran’s forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees.  The April 2008 examination report reflected that the Veteran was able to flex forward up to 80 degrees, which is only 10 degrees less than normal forward flexion for VA purposes. Moreover, the Veteran’s combined range of motion was at 155 degrees, which is greater than the criteria for even the 20 percent disability rating, which is dictated at not greater than 120 degrees.
Since there is no persuasive evidence of record that the Veteran’s subjective complaints of pain would rise to the level of an individual who actually experiences functional loss at the level of 40 percent during this period, in that even taking pain, tenderness and soreness into consideration, the Veteran’s forward flexion ROM is much greater than 30 degrees, the Board finds that a higher rating of 20 percent for the Veteran’s lumbosacral strain is not warranted. 
In reaching this determination, the Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§4.40 and 4.59, as well as the holding in Deluca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain. Moreover, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, but pain alone does not warrant a higher disability rating, especially when the Veteran’s ROM of motion is close to normal forward flexion for VA purposes. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute functional loss, but is just one fact to be considered when evaluating functional impairment). 
From April 9, 2010
The April 9, 2010, VA examination report for the Veteran’s lumbar spine condition reflected complaints of aching, soreness, and tenderness over the cervical and over the lumbar spine. She reported that a lot of repetitive use bothered and irritated her. The examiner opined that she would be limited to sedentary type of work.  ROM diagnostic testing of the lumbar spine was flexion up to 55 degrees, extension up to 15 degrees, left lateral flexion to 15 degrees, right lateral flexion to 15 degrees, and left lateral rotation to 15 degrees and right lateral rotation to 15 degrees.  
An October 2011 treatment record shows complaint of back pain at a 7/10. The physical therapist noted that the Veteran arrived to the clinic independently with no assistive device and that the Veteran demonstrated minimally increased antalgic gait pattern on entering the clinic.
A June 2012 VA examination report reflects that the Veteran reported that she experiences more pain with use. Initial ROM measurement showed the following: forward flexion up to 50 degrees, extension up to 0 degrees, right lateral flexion up to 20 degrees, left lateral flexion up to 20 degrees, right lateral flexion up to 20 degrees, left lateral rotation up to 20 degrees, and right lateral rotation up to 20 degrees.  Objective evidence of painful motion began at 0 degrees for forward flexion, 0 degrees for extension, 0 degrees for right lateral flexion, 0 degrees for left lateral flexion, 0 degrees for right lateral rotation, and 0 degrees for left lateral rotation.  ROM for after repetitive use testing showed the following: the Veteran was able to perform repetitive testing with 3 repetitions; forward flexion up to 50 degrees, extension to 0 degree, right lateral flexion up to 20 degrees, left lateral flexion up to 20 degrees, right lateral rotation up to 20 degrees, left lateral rotation up to 20 degrees. The Veteran exhibited the following factors that contributed to functional loss or impairment: less movement than normal, pain on movement, interference with sitting, standing and/or weight-bearing.  The Veteran exhibited localized tenderness or pain to palpation for joints/or soft tissue of the thoracolumbar spine. The Veteran also exhibited guarding or muscle spasm of the thoracolumbar spine but did not result in abnormal gain or spinal contour.  The examiner noted that the Veteran did not have IVDS of the thoracolumbar spine. The examiner opined that the Veteran’s back condition limited the Veteran to light, sedentary work. 
The October 2013 VA examination note shows that the examiner phoned the Veteran, asked her whether she has increased functional loss in lumbar and bilateral ankle ROM and pain during flare-ups.  The Veteran reported that during flare-ups, her lumbar spine ROM was the following: forward flexion to 30 degrees with pain, extension of 0 degrees with pain, lateral flexion to about 15 degrees with pain bilaterally, rotation to 30 degrees to the right and 40 degrees to the left with pain bilaterally.
In the January 2015 VA examination note, the VA examiner stated that in regard to the lumbar spine, it is as likely as not that the functional loss on repetitive use is the same as what the Veteran reported to be her loss during flare-ups as described in the October 2013 report.
The April 2017 VA examination report for back conditions shows a diagnosis of lumbosacral strain. The Veteran reported that her lower back condition was getting worse and felt like knife like pain. The Veteran claimed that heavy lifting and/or bending caused sharp pain and the pain is relieved when she stops what she is doing. The Veteran did not report any functional loss or functional impairment of the thoracolumbar spine. Initial ROM test of the back was normal: flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. 
The examiner observed that the Veteran was able to perform repetitive use testing with at least 3 repetitions, and that there was no additional loss of function or range of motion after 3 repetitions.  The examiner did not conduct an exam during a flare-up and stated that he would be unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limits functional ability with flare-ups because it would vary with activity. No guarding or muscle spasm of the thoracolumbar spine shown.  No radiculopathy, ankylosis, IVDS, or other neurologic abnormalities were shown. 
The examiner noted that the Veteran would not be able to perform in an occupation that required prolonged heavy lifting and bending.  The examiner noted that the Veteran’s back is structurally intact on radiograms and less likely than not to affect strength, fatigability, or incoordination of the lumbar spine joints or significantly limit functional ability during flare-ups, or joint use repeatedly over a prolonged period of time. On examination, the Veteran demonstrated good effort; shoe wear patterns were evident for lateral heel strikes on her boots. Gait was observed and was unremarkable walking down a hallway for 300 feet. The examiner observed the Veteran bending over several times to pick up her purse from the floor after weighing in, picking up a Halls cough drop that fell on the floor and putting on her socks and boots and was supportive of a 90 degrees lumbar flexion.  Passive ROM conducted on the Veteran’s back using one finger of pressure and was supportive of active ROM findings noted above. X-ray impression was no acute osseous abnormality.
The November 2017 VA examination report shows a diagnosis of lumbosacral strain. The Veteran reported that she experiences daily pain in her lumbar spine.  The Veteran did not report flare-ups. The Veteran reported that she has functional loss and impairment due to the pain in her lumbar spine. Initial ROM test of the back was abnormal or outside of normal range: forward flexion to 55 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees and left lateral rotation to 25 degrees.  The examiner noted that the ROM contributed to a functional loss due to pain and decreased ROM; there was evidence of pain with weight bearing; and there was objective evidence of localized tenderness or pain on palpation of the joints or associated of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions.  Additional loss of ROM after 3 repetitions were the following: forward flexion to 20 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees and left lateral rotation to 25 degrees.
The examiner noted that she was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use of a period of time because it would vary depending on the activity. 
The examiner noted that there was no guarding or muscle spasm of the thoracolumbar spine. The examiner also remarked that the Veteran appears to be having a lot of pain with all ROM testing, which may be attributing to her decreased ROM of the lumbar spine. The Veteran did not exhibit any radiculopathy, neurologic abnormalities, IVDS or ankylosis of the lumbar spine.  The examiner observed that the Veteran exhibited pain with non-weight bearing lumbar spine but could not perform passive ROM because the Veteran would need to be lifted off the examination table from supine, non-weight bearing position to do passive ROM and assess pain in passive ROM.  X-ray impression was mild degenerative changes at L3-4 and the examiner found that the decreased ROM was out of proportion to the mild findings on the x-ray.
The examiner opined that the Veteran was intolerant of prolonged periods of standing, walking, bending, twisting or turning.  Therefore, a light duty job would be feasible with no prolonged periods of weight bearing with no bending, twisting, turning and no heavy lifting.  The examiner concluded that most of the Veteran’s symptoms seem to be more due to the pain in her back rather than from any anatomic condition and that the current level of severity is mild to moderate.
The examiner opined that it would be mere speculation if repeated use over time would cause additional functional impairment or to express this in additional ROM and it is not feasible to do so with any degree of medical certainty. The examiner explained that the Veteran was not examined after repeated use over time, and therefore, cannot give a ROM; also, functional limitation over time may vary depending on the type of activity, length of activity or if veteran was also on any medication, which might also affect her function and pain levels.  There are too many variables that can attribute to functional impairment.
Based on the above, the Board finds that, effective April 9, 2010, the Veteran’s lumbosacral strain has more nearly approximated to a disability picture that warrants a 40 percent evaluation, or forward flexion of 30 degrees or less.  In this case, although the June 2012 VA examination report reflected that the Veteran’s forward flexion was to 55, the examiner noted that the Veteran experienced pain beginning at 0 degrees.  Moreover, in October 2013, the Veteran reported that she experienced flare-ups and that her forward flexion was to 30 degrees with pain during that time.  Similarly, in January 2015, the VA examiner opined that the Veteran most likely had function loss as described in the October 2013 report. Thereafter, during the November 2017 VA examination, the examiner observed that the Veteran was only able to forward flex to 20 degrees after 3 repetitions. Moreover, the Veteran continuously reported that she experienced pain in her back.  
The Board notes that the forward flexion ROM during the April 9, 2010, examination was greater than the criteria set forth in the 40 percent disability rating; however, it appears that the examiner did not take pain into consideration when reporting the ROM as the examiner did in the June 2012 examination.  Therefore, since the Veteran reported pain in the April 2010 examination and the ROM was the same as in the June 2012 examination, the Board will resolve the discrepancy in the Veteran’s favor and award the Veteran with a higher disability rating of 40 percent beginning on April 9, 2010.
The Board also notes that the ROM test results in the April 2017 VA examination is an anomaly, in that the examiner reported that the Veteran exhibited normal ROM of the thoracolumbar spine.  However, the VA examiner opined that the Veteran’s back pain may limit ROM and that pain is a symptom and not a diagnosis and will stop a person in performing a movement when it hurts. Furthermore, upon examination in April 2017, the examiner concluded that the Veteran would not be able to perform in an occupation that required heavy lifting and bending.
Therefore, with reasonable doubt resolving in the Veteran’s favor, the Board finds that the disability picture presented in the record for the Veteran’s lumbosacral strain symptoms, effective April 9, 2010, more nearly approximates limitation of motion of a rating that warrants 40 percent under the criteria for rating spine disabilities. See 38 C.F.R. §§ 4.3, 4.7; DeLuca v. Brown, 8 Vet. App. 202 (1995) (in evaluating 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). 
In order to warrant a rating higher than 40 percent under the General Rating Formula, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Here, there is no evidence of ankylosis. VA examiners consistently noted that there was no ankylosis, and the Veteran clearly maintained some range of motion of her thoracolumbar spine. Therefore, the Board finds that the evidence of record is against a finding that the Veteran has had ankylosis at any time during the appeal period, and a higher rating is not warranted. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5). 
The Board has also considered whether a higher evaluation may be warranted due to incapacitating episodes associated with intervertebral disc syndrome. However, the lay and medical evidence of record do not reflect that the Veteran has had any incapacitating episodes of the cervical spine during the entire appeals period. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 6.
The Board has also considered whether the Veteran is entitled to separate ratings for associated objective neurological abnormalities. However, VA examinations reflect that the Veteran does not exhibit any neurological abnormalities.
Therefore, the symptomatology associated with the Veteran’s thoracolumbar spine warrants a 40 percent rating, but not higher, effective April 9, 2010. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine to the extent noted.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinki, 1 Vet. App. 49 (1990).   
3. Ankle Disabilities
Service connection for the posterior tibial tendonitis of the left and right ankles were granted with an evaluation of 10 percent, effective June 4, 2005. The disability rating for the Veteran’s right ankle disability was increased to 20 percent, effective July 2, 2012.
The Veteran’s left ankle posterior tibial tendonitis is currently rated as 10 percent under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5271-5024. The Veteran’s right ankle posterior tibial tendonitis is currently rated as 20 percent disabling under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5003-5271. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27.
Under Diagnostic Code 5271, a 10 percent disability rating is for assignment for moderate limitation of ankle motion and a 20 percent evaluation for marked limitation of ankle motion. A 20 percent disability rating is the highest possible schedular rating under Diagnostic Code 5271. Higher disability ratings of 30 and 40 percent are possible under Diagnostic Code 5270 with evidence of ankylosis.
Words such as “moderate” and “marked” 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.
Normal motion of the ankle is described as dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II.
Turning to the evidence of record, the July 2005 ROM for left ankle was 12 degrees of dorsiflexion with the knee flexed and 40 degrees of plantarflexion.  The Veteran reported she elicited pain of 7 on a scale of 0 to 10 at end dorsiflexion and plantarflexion. Right ankle ROM was 14 degrees of dorsiflexion with the knee flexed and 32 degrees of plantarflexion. Right ankle joint ROM was smooth and gliding and pain free. 
The April 2008 VA examination report reflects the following ROM for both ankles: dorsiflexion to 20 degrees and plantar flexion to 40 degrees. The VA examiner remarked that the Veteran had tenderness and pain and tenderness on the medial aspect of the ankle with motion. Repetitive use did cause increasing pain and tenderness but no ROM change was noted. No flare-ups were noted. Normal x-ray impressions were diagnosed for both ankles. The radiologist noted that both ankle joints were well-maintained and ruled out arthritis.
The April 2010 VA examination report reflects the following ROM for both ankles: dorsiflexion to 10 degrees and plantar flexion to 40 degrees.  The Veteran reported that she had persistent pain and tenderness in the ankles, gets some soreness and tenderness, experiences aching, and pain and swelling when she is up on her feet for more than an hour or two. The examiner noted that the Veteran would not be able to do any work that requires prolonged standing and walking, there was pain throughout the range of motion, repetitive use increased pain, and flare ups occurred with prolonged standing. 
A November 2011 VA physical therapy record shows that the Veteran complained of swollen ankles and feet. Strength tests shows that the Veteran exhibited maximum resistance for both her ankles.
A July 2012 VA examination report for ankle conditions reflect that the Veteran reported shooting pain up the back of her ankles when she walks. She reported that her ankles are usually the size of grapefruits; her feel swell and feels like they are on fire or spiders are crawling in her legs. The Veteran reported that she needed to take frequent breaks during her 8-hour shift at work due to her ankles. The examination report showed the following ROM: right ankle plantar flexion to 15 degrees, right ankle dorsiflexion to 15 degrees, left ankle plantar flexion to 30 degrees and left ankle dorsiflexion to 15 degrees. Objective evidence of painful motion began at 15 degrees for the right ankle flexion, 15 degrees for the right dorsiflexion, 30 degrees for the left ankle flexion, and no objective evidence of painful motion was noted for the left ankle dorsiflexion. ROM measurements after repetitive use testing showed the following: the Veteran was able to perform repetitive-use testing with 3 repetitions, right ankle post-test ROM showed plantar flexion up to 15 degrees and dorsiflexion up to 15 degrees, left ankle post-test ROM showed plantar flexion up to 30 degrees and dorsiflexion up to 20 degrees or greater. Additional limitation in ROM of the ankles following repetitive use was not shown. The following functional impairment or loss was shown after repetitive use: less movement than normal in both ankles, weakened movement in both ankles, incoordination in both ankles and pain on movement in the right ankle, swelling in both ankles, instability of station in both, disturbance of locomotion in both and interference with sitting, standing and weight-bearing in both ankles. The Veteran exhibited localized tenderness or pain on palpation of joints/soft tissue in both ankles.  Muscle strength testing showed 4/5 for right ankle plantar flexion, 5/5 for left ankle plantar flexion, 4/5 for right ankle dorsiflexion, and 5/5 for left ankle dorsiflexion.  The examiner indicated that the Veteran does not have ankylosis of the ankle.  The examiner also noted that function impairment was not of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Impressions of x-ray of the ankles were normal.
The October 2013 VA examination note shows that the examiner phoned the Veteran, asked her whether she has increased functional loss in lumbar and bilateral ankle ROM and pain during flare-ups.  The Veteran reported that she could not estimate the degrees of ankle dorsi and plantar flexion during flare-ups but reported that it was more difficult to walk and that she places her weight more laterally than normal during flare ups.  The examiner opined that the fact that she can walk during flare-ups makes it less likely than not that the flare-up significantly further impairs her already impaired range of motion. The examiner concluded that she would describe the Veteran’s 40 percent loss of dorsiflexion as moderate and would reserve the term marked for conditions such as complete foot drop.	
The January 2015 addendum to the October 2013 note concludes with “that is, it is not possible to give, in degrees, the amount lost during flare-ups or after repetitive motion, without resorting to speculation, but it is as likely as not significant to the joint function.”
The April 2017 VA examination report for ankle conditions shows diagnoses of tendonitis in both ankles. The Veteran reported sharp pain intermittent and getting worse, otherwise, she has dull achy pain.  The Veteran reported that she has flare-ups on her ankles as swelling and she will wear compression stocking and elevate her ankles to resolve the swelling. She did not report any functional loss or functional impairment of the joint or extremity regardless of repetitive use. 
Initial ROM for both ankles showed dorsiflexion up to 10 degrees and plantar flexion up to 40 degrees. The examiner reported that the ROM was normal for age and body habitus and that the ROM did not contribute to functional loss. No pain was noted on examination; there was no evidence of pain with weight bearing; there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue; and there was no evidence of crepitus. 
The examiner did not examine the ankles immediately after repetitive use over time since the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time.  For flare-ups, the examiner noted that an examination was not conducted during a flare up. Muscle strength testing showed normal strength for plantar flexion and dorsiflexion. No ankylosis was shown in both ankles.
The examiner noted that the Veteran has a history of depression and generalized anxiety disorder, which are not service connected and could have negative impact on pain receptors. The examiner noted that ankle pain may limited ROM function; pain is a symptom and not a diagnosis and will stop a person in performing a movement when it hurts. Otherwise, ankles are structurally intact on radiograms with mild swelling evident for right ankle. No evidence on PE of loss of strength, fatigability or incoordination of the ankle join or significantly limit functional ability during flare-ups, or joint use repeatedly over a prolonged period of time. The examiner also noted that gait observed was unremarkable walking down a long hallway today for approximately 300 feet. There was no evidence of an antalgic gait with normal shoe wear patterns for a lateral heel strike. Passive ROM was conducted on the Veteran’s bilateral ankles and was supportive of active ROM.
The November 2017 VA examination for ankle conditions showed a diagnosis of tendinitis for both ankles. The Veteran reported daily pain with swelling and use of topical analgesic creams as needed. The Veteran denied any flare-ups and reported functional loss or impairment due to pain and swelling. Initial ROM showed abnormal or outside of normal range for both ankles: dorsiflexion to 10 degrees and plantar flexion to 40 degrees. There was evidence of pain with weight bearing and evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  There was no objective evidence of crepitus.  Muscle strength testing showed normal strength (5/5) for plantar flexion and dorsiflexion in both ankles. There was no evidence of muscle atrophy or reduction in muscle strength. The examiner noted that the Veteran did not exhibit any pain with non-weight bearing bilateral ankles; passive ROM was the same as active in all directions; there was evidence of pain bilaterally with passive dorsiflexion and plantar flexion. The examiner opined that the Veteran continues with good ROM with both ankles with normal x-rays; current level of severity for bilateral ankles is mild.   
Left Ankle
Based on the evidence described above, the Veteran’s left ankle posterior tibial tendonitis during this period were characterized by pain and some limitation of motion was demonstrated during the VA examinations. These symptoms are contemplated in the current 10 percent ratings for moderate limitation of ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. A higher rating for the left ankle would require a finding of marked limitation of motion or ankylosis. In this case, the record shows a left ankle limitation of plantar flexion to 40 degrees and dorsiflexion to 10 degrees, even when taking into account additional functional loss caused by pain. Furthermore, in October 2013, the VA examiner concluded that the Veteran exhibited moderate ankle disability with a dorsiflexion of 10 degrees; in April 2017, the VA examiner opined that the limited ROM did not contribute to function loss; and at the most recent VA examination in November 2017, the examiner opined that the Veteran’s ankles had good ROM and normal x-rays of the ankles.  Moreover, VA examinations reflect that the Veteran exhibited normal muscle strength in both ankles (5/5), no ankylosis, no joint instability and normal ankle x-ray impressions. In addition, the VA examiner in November 2017 opined that the current level of severity for bilateral ankles were mild. Therefore, based on the evidence, the Board finds that the Veteran’s symptoms do not approximate a marked limitation of motion, which would be reserved for disability akin to a foot drop as one VA examiner opined.  Since the Veteran is able to walk and has no functional loss despite limited ROM in her left ankle, a rating higher than 10 percent for the left ankle disability is not warranted.
The Board has considered the Veteran’s lay statements. The Veteran is competent to report her own observations with regard to the symptoms of her ankle disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, nothing in the Veteran’s statements provides support for a finding that the Veteran’s symptoms for the left ankle were more severe than those discussed above.
Right Ankle 
Prior to July 2, 2012
Based on the evidence described above, the Veteran’s right ankle posterior tibial tendonitis during this period were characterized by pain and some limitation of motion was demonstrated during the VA examinations. These symptoms are contemplated in the current 10 percent ratings for moderate limitation of ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. A higher rating for the right ankle would require a finding of marked limitation of motion or ankylosis. In this case, the record shows a right ankle limitation of plantar flexion to 40 degrees and dorsiflexion to, at most, 10 degrees.  Although the Veteran reported pain during that period, she was able to walk and showed maximum muscle strength of her ankles.  Furthermore, there was no evidence of arthritis, ankylosis, joint instability or foot drop.  Therefore, based on the evidence, the Board finds that the Veteran’s symptoms do not approximate a marked limitation of motion, which a VA examiner opined would be reserved for severe ankle disability akin to foot drop.  See October 2013 VA examination report.  Since the evidence demonstrates that the Veteran is able to walk and has some ROM in her right ankle, a rating higher than 10 percent for the left ankle disability is not warranted.
Moreover, the Board has considered the Veteran’s lay statements. The Veteran is competent to report her own observations with regard to the symptoms of her ankle disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, nothing in the Veteran’s statements provides support for a finding that the Veteran’s symptoms for the left ankle were more severe than those discussed above.
Since July 2, 2012
The 20 percent rating is the highest disability rating possible under Diagnostic Code 5271.
The Board has considered other potentially applicable Diagnostic Codes. The maximum evaluation available under Diagnostic Codes 5272 through 5274 is 20 percent. Therefore, they are not more favorable to the Veteran.
The only other applicable diagnostic code that could provide for a disability rating in excess of 20 percent is Diagnostic Code 5271 for ankle ankylosis. Given the ranges of motion found by the various examiners and that VA examiners consistently noted that the Veteran does not exhibit ankylosis, the Board finds that that the Veteran does not have ankylosis. Additionally, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 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. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Thus, no higher rating is available due to functional loss.
The Board has considered the Veteran’s lay statements. The Veteran is competent to report her own observations with regard to the symptoms of her ankle disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, since ankylosis of the right ankle is not manifested, a higher rating is not warranted.
The Board concludes that the objective medical evidence and the Veteran’s statements regarding her symptomatology does not show a disability which warrants the assignment of a higher rating than 20 percent for the right ankle posterior tibial tendonitis, effective July 2, 2012. See 38 C.F.R. § 4.7. As shown above, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. The Board finds no provision upon which to assign a greater or separate rating.
In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims for higher ratings, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
(continued on next page)
 
TANYA SMITH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Lee, Associate Counsel 

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