Citation Nr: 1725809 Decision Date: 07/07/17 Archive Date: 07/18/17 DOCKET NO. 11-23 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for a right knee condition prior to October 13, 2014 and in excess of 30 percent from December 1, 2015. 2. Entitlement to an evaluation in excess of 10 percent for gouty arthritis of the left knee. 3. Entitlement to an evaluation in excess of 10 percent for gouty arthritis of the right ankle. 4. Entitlement to an evaluation in excess of 10 percent for gouty arthritis of the left ankle. 5. Entitlement to an evaluation in excess of 10 percent for a right foot condition. 6. Entitlement to an evaluation in excess of 10 percent for a left foot condition. 7. Entitlement to an effective date prior to February 8, 2016 for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Seth C. Berman, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran had active duty military service from March 1982 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 2011 and October 2016 of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified in March 2017 at a personal hearing before the undersigned Veterans Law Judge (VLJ) at the Board's headquarters located in Washington, D.C. A transcript of that hearing is included in the claim file. FINDINGS OF FACT 1. Prior to October 13, 2014, the Veteran's gouty arthritis included right knee manifestations that even with consideration of functional impairment were not manifested by motion limited to 30 degrees from flexion, 10 degrees extension, ankylosis, or slight lateral instability. 2. From December 1, 2015, the Veteran's status post right knee replacement has been productive of flexion of the right knee limited to 90 degrees when considering pain on motion, no more than slight instability, and a scar that is not unstable or painful and does not cover an area greater than 39 square centimeters; with an overall disability picture that most nearly approximates no more than intermediate degrees of residual weakness, pain and limited motion. 3. During the entire period on appeal, the Veteran's gouty arthritis includes left knee manifestations that even with consideration of functional impairment are not manifested by motion limited to 30 degrees from flexion, 10 degrees extension, ankylosis, or slight lateral instability. 4. Prior to March 21, 2016, the Veteran's gouty arthritis included left and right foot manifestations characterized by hallux valgus with pain that was not at least moderately severe. 5. The Veteran is not shown to have been in need of convalescence after December 31, 2010, for arthrodesis of the first metatarsophalangeal joint and fibular sesamoidectomy of the right foot in September 2010. 6. From March 21, 2016, the Veteran's gouty arthritis includes left and right foot manifestations characterized as a foot disability that is moderately severe in nature. 7. Prior to March 21, 2016, the Veteran's gouty arthritis included left and right ankle manifestations that were not of "marked" severity. 8. From March 21, 2016, the Veteran's gouty arthritis includes left and right ankle manifestations that are of "marked" severity. 9. Prior to February 8, 2016, the Veteran was not precluded due to the impact of his service-connected disabilities from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. For the period prior to October 13, 2014, the criteria for a rating in excess of 10 percent have not been met for manifestation of gout with joint involvement of the right knee. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5257, 5260, 5261 (2016). 2. From December 1, 2015, the criteria for a rating in excess of 30 percent for service-connected status post right knee replacement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5055, 5257, 5260, 5261, 4.118, Diagnostic Codes 7801, 7804 (2016). 3. The criteria for a rating in excess of 10 percent have not been met for manifestation of gout with joint involvement of the left knee. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5257, 5260, 5261 (2016). 4. Prior to March 21, 2016, the criteria for a rating in excess of 10 percent have not been met for manifestations of gout with joint involvement of the right foot. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5280, 5284 (2016). 5. A temporary total rating based on surgery necessitating convalescence beyond December 31, 2010, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.30 (2016). 6. From March 21, 2016, the criteria for a rating of 20 percent, but no more, have been met for manifestations of gout with joint involvement of the right foot. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5284 (2016). 7. Prior to March 21, 2016, the criteria for a rating in excess of 10 percent have not been met for manifestations of gout with joint involvement of the left foot. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5280, 5284 (2016). 8. From March 21, 2016, the criteria for a rating of 20 percent, but no more, have been met for manifestations of gout with joint involvement of the left foot. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5284 (2016). 9. Prior to March 21, 2016, the criteria for a rating in excess of 10 percent have not been met for manifestations of gout with joint involvement of the right ankle. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5271 (2016). 10. From March 21, 2016, the criteria for a rating of 20 percent, but no more, have been met for manifestations of gout with joint involvement of the right ankle. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5271 (2016). 11. Prior to March 21, 2016, the criteria for a rating in excess of 10 percent have not been met for manifestations of gout with joint involvement of the left ankle. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5271 (2016). 12. From March 21, 2016, the criteria for a rating of 20 percent, but no more, have been met for manifestations of gout with joint involvement of the left ankle. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5002, 5017, 5271 (2016). 13. Prior to February 8, 2016, the criteria for entitlement to TDIU have not been met. 38 C.F.R. § 4.16(b) (2016); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, enlarged VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. Furthermore, as part of the notice, VA must indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will obtain. In a claim for increased rating, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Pursuant to its obligations under the VCAA, VA is required to provide notice to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The RO provided the Veteran with pre-adjudication VCAA notice via letter dated in May 2008. As for the TDIU claim, the Veteran was not provided with VCAA-compliant notice prior to the adjudication of the claim. When considering whether the lack of pre-adjudication notice is prejudicial to a Veteran, the Supreme Court has held that the burden is on the party alleging prejudice to show that a notice error is harmful. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, the Veteran was provide with ample opportunity to contest the lack of notification regarding his TDIU claim during the March 2017 hearing and did not do so. He was granted entitlement to TDIU effective February 8, 2016, and so is only appealing the effective date of the grant of TDIU. He was provided with subsequent notification of his rights regarding an appeal of the original decision in the October 2016 notification informing him of the grant of his TDIU claim, and has pursued his appeal of the effective date. Pelegrini, 18 Vet. App. at 120-121. Under these circumstances, the Board does not find that there is any notice deficiency during the adjudication of the claim. Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. The Board has obtained copies of the Veteran's service medical and personnel records as well as post-service treatment records, both from VA and from private providers. The Board has also obtained copies of records pertaining to the Veteran's disability claim before the Social Security Administration (SSA). The Veteran was afforded thorough examinations in September 2008, March 2011, and March 2016. The Veteran has submitted personal statements and was also afforded an opportunity to testify at a hearing before a VLJ in March 2017. He has not identified any additionally available evidence for consideration. Under Bryant v. Shinseki, 23 Vet. App. 488 (2010), 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing in March 2017, the Veteran's attorney was not present at the hearing, but the Veteran indicated that he wished to proceed without his attorney present. Accordingly, the undersigned alone pursued a line of questioning directed to elicit the Veteran's contentions regarding his claim. The undersigned asked questions regarding the Veteran's history of symptoms of the various disabilities on appeal. The VLJ informed the Veteran that he had an opportunity to submit additional evidence in support of his claim. There was no pertinent evidence identified by the Veteran that might have been overlooked or may have substantiated the claim. The Veteran has not suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In recognition of these efforts by the RO to obtain the known evidence that may substantiate the Veteran's claim, and it being clear that the Veteran has not indicated that there exists additional evidence to support his claim, the Board concludes that no further assistance is required to be provided to him in developing the facts pertinent to his claim in order to comply with the duty to assist. Laws and Regulations Relevant to Increased Rating Claims Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2016). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2016). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. Gout is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5017. Under this diagnostic code, gout is rated under the criteria for evaluating rheumatoid arthritis under Diagnostic Code 5002. Under Code 5002, a 20 percent evaluation is warranted for active rheumatoid arthritis where there are one or two exacerbations a year in a well-established diagnosis. A 40 percent evaluation is warranted for active rheumatoid arthritis for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A 60 percent evaluation applies for active rheumatoid arthritis where the evidence demonstrates symptomatology less than the criteria for 100 percent, but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year, or a lesser number over prolonged periods. Finally, a 100 percent evaluation is warranted for active rheumatoid arthritis for constitutional manifestations associated with active joint involvement, totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Diagnostic Code 5002 further provides that chronic residuals, such as limitation of motion or ankylosis, are to be rated under the appropriate diagnostic codes for the specific joints involved. A note to Diagnostic Code 5002 states that ratings for an active process will not be combined with ratings for chronic residuals. Instead, the higher of the two evaluations should be assigned. The Veteran is currently in receipt of separate ratings for gouty arthritis in each of the following joints: right knee, rated as 10 percent disabling prior to October 13, 2014 and 30 percent disabling from December 1, 2015; left knee, rated as 10 percent disabling; right ankle, rated as 10 percent disabling; left ankle, rated as 10 percent disabling; right foot, rated as 10 percent disabling; and left foot, rated as 10 percent disabling. As the RO did not provide a separate evaluation of the Veteran's gout for constitutional manifestations of the active disease, the Board shall confine its consideration to whether a higher rating may be warranted for the separate joint manifestations, which may not be combined with any constitutional manifestations. Bilateral Knee Condition The Veteran was first granted separate 10 percent ratings for gouty arthritis of the right and left knees effective March 11, 2008, the date of the increased rating claim that initiated this appeal. That 10 percent rating was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5017-5260. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2016). The hyphenated diagnostic codes in this case indicate that the gout under Diagnostic Code 5017 is the primary disability, while limitation of flexion pursuant to Diagnostic Code 5260 is a residual condition. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5258 (dislocation of semilunar cartilage), 5259 (symptomatic removal of semilunar cartilage), 5262 (tibia and fibula impairment), and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran has any of those conditions. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263 (2016). However, Diagnostic Code 5257, which corresponds to recurrent subluxation or lateral instability, is potentially applicable and will accordingly be considered by the Board. Under Diagnostic Code 5260, limitation of flexion of the leg, a noncompensable rating is assigned when flexion is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the leg, a noncompensable rating is assigned when extension is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5257, lateral instability or recurrent subluxation, a 10 percent rating is assigned when instability is slight, while a 20 percent rating is assigned for moderate instability, and a 30 percent rating is for severe instability. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71a (2016). For VA purposes, normal extension and flexion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71a, Plate II (2016). The Board notes that separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Subsequent to the assignment of a 10 percent rating for the right and left knee in the June 2011 rating decision, the Veteran was granted a temporary 100 percent rating for his right knee for convalescence following a right knee replacement surgery that occurred on October 13, 2014. 38 C.F.R. § 4.30. That temporary 100 percent rating lasted until November 30, 2015, whereupon the evaluation of the right knee condition was reduced to 30 percent pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055. According to the rating schedule, pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. (The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30). Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran was afforded a VA examination in September 2008 to evaluate the severity of his right and left knee conditions. He reported significant intermittent pain in his bilateral lower extremities, to specifically include his knees. He stated that he experienced symptoms of weakness, stiffness, swelling, heat, redness, fatigability, and lack of endurance, with flare-ups of increased pain once a week. According to the Veteran, his mobility was severely restricted by the symptoms that impacted his bilateral lower extremity joints, and he was unable to stand for more than a few minutes at a time. A physical examination revealed no limitation in extension and flexion limited to 100 degrees, with a mild increase in pain upon repetition as well as mild fatigue, weakness and lack of endurance as well upon repetition. The examiner noted that a June 2012 X-ray examination of the knees showed degenerative arthritis. The Veteran was afforded a new VA examination in March 2011 to again evaluate the severity of his right and left knee conditions. He reported throbbing pain 85 percent of the time with flare-ups every 10 days that lasted up to four or five days at a time. He stated that walking increased his knee pain. A physical examination revealed no limitation in extension of either knee, while flexion was limited to 60 degrees in the right knee and 70 degrees in the left knee. Apparently it was not feasible to attempt repetitive motion testing during the examination. The examiner did not note any mediolateral or anteroposterior instability, nor was any tenderness, swelling, heat or redness noted either. X-ray examinations of the knees showed degenerative joint disease with osteophytosis in the left knee and narrowing of the lateral compartment in the right knee. It was the examiner's impression that both of the Veteran's knee conditions were moderately severe, due mostly to the reduced lack of range of motion. The Veteran was afforded yet another VA examination in March 2016 to evaluate the severity of his knees. At this point, the Veteran had right knee replacement surgery in October 2014 and had eclipsed the one-year convalescence period as outlined in Diagnostic Code 5055. He reported that he experienced moderate pain around his prosthesis and had limited range of motion, which impacted his physical activities. As for the left knee, he reported that he experienced constant severe pain and was awaiting a left knee replacement surgery. Right knee flexion was limited to 90 degrees, while extension was measured from 90 degrees to 0 degrees. Left knee flexion was limited to 70 degrees, while extension was measured from 70 degrees to 0 degrees. The examiner noted that the Veteran had a post-operative scar on the right knee that was 25 centimeters long by one and a quarter centimeters wide; the scar was not noted to be painful or unstable. According to the examiner, the pain in flexion noted on the examination caused functional loss in both knees. The examiner also noted evidence of localized tenderness and pain with weight bearing in both knees, but dismissed any evidence of ankylosis or crepitus. The Veteran was not able to complete repetitive use testing for either knee due to severe pain. There was no evidence of recurrent subluxation, lateral instability, or recurrent effusion in either knee. The examiner's opinion was that the knee conditions contributed to functional loss in the form of limited standing, walking, weight bearing or any physical activity due to the severe pain from the prosthesis. During the March 2017 hearing, the Veteran stated that he did not experience any issues with his prosthesis for the first nine months after his replacement surgery. However, after those nine months he began to experience sharp pain in his right knee whenever he bent it, and since that time he stated that his knee was constantly sore. He also stated that he would regularly wake up in the morning with his knee swollen. Regarding the left knee, the Veteran reported that it was very weak and that he actually fell down the stairs after it gave way underneath him. He exclaimed that he was scheduled for left knee replacement surgery in December 2016 but that a complication with his kidney resulted in the surgery being postponed. As for stability, he acknowledged that his right knee was more stable than his left knee but he felt that it was wobbly at times as well. VA treatment records dated during the pendency of the appeal show that the Veteran has received continued treatment for bilateral degenerative joint disease of the knees, with symptoms mainly of pain and swelling. A June 2009 outpatient records indicates that the Veteran complained of constant knee pain and reported that his knees would give out. A corresponding X-ray examination showed mild narrowing of the medial tibiofemoral joint space, mild lateral subluxation of the proximal tibia, and possible suprapatellar effusion, all consistent with degenerative joint disease. Thereafter, in an April 2014 outpatient record, the Veteran reported limited range of motion in both knees with crepitus. Upon review of the record, the Board finds that the disability picture for the Veteran's right knee condition did not meet the criteria for a disability rating in excess of 10 percent for gouty arthritis with limited motion prior to October 13, 2014, the date of his knee replacement surgery. During this period, the evidence shows that flexion of the right knee was limited to 60 degrees or better while there was no reported limitation of extension. Although the March 2011 examiner noted that the Veteran's pain prevented repetitive use testing, the 10 percent rating currently in effect for the period prior to October 13, 2014 is noted to have been assigned with consideration of the pain causing additional limitation per 38 C.F.R. §§ 4.40, 4.45; otherwise the range of motion testing would not even meet the criteria for a compensable rating under Diagnostic Code 5260. Separate ratings may be assigned for instability of the knee under VAOPGCPREC 23-97 (July 1, 1997). However, stability tests of the right knee were completely normal at the September 2008 and March 2011 VA examinations, and the record lacks consistent evidence that the Veteran was experiencing instability in the right knee during the period. Even with consideration of functional impairment caused by factors such as pain, weakness, fatigability, incoordination, or pain on movement of a joint, the Veteran's gouty arthritis of the right knee was not manifested by motion limited to 30 degrees from flexion, 10 degrees extension or ankylosis prior to October 13, 2014. Thus, a disability rating in excess of 10 percent for this period is not warranted. As noted above, the Veteran's right knee disability was recharacterized effective October 13, 2014 because he underwent a total right knee replacement. A 100 percent rating was assigned from October 13, 2014 through November 30, 2015. A 30 percent rating was assigned effective from December 1, 2015. Upon review of the record, the Board does not find that the Veteran's disability picture for his right knee status post total replacement surgery warranted a rating in excess of 30 percent. As a reminder, the minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. On the March 2016 VA examination, the right knee was shown to have 90 degrees of flexion, even with consideration of pain on motion, while extension was at 0 degrees. The Veteran reported the pain around his prosthesis to be moderate while the examiner noted localized tenderness and pain with weight bearing. There was no evidence of ankylosis, crepitus, subluxation, instability, or recurrent effusion. With demonstrated improvement in flexion and no change in the severity of pain resulting from the prosthesis, the disability picture most closely corresponds to the minimum 30 percent rating for status post replacement surgery. To warrant the higher 60 percent rating under Diagnostic Code 5055, the Veteran's status post left knee replacement would have to be productive of chronic residuals consisting of severe painful motion or weakness in the affected extremity. This was not shown on the March 2016 examination, and the Veteran has not provided any additional competent evidence to suggest otherwise. Furthermore, the post-operative scar did not meet the criteria for a compensable rating under either 38 C.F.R. § 4.118, Diagnostic Code 7801 or 7804, as it was not painful or unstable on the March 2016 examination and did not exceed 39 square centimeters. Accordingly, the assignment of an evaluation in excess of 30 percent for the right knee condition from December 1, 2015 is not warranted. Moving on to the left knee condition, the Board does not find that the disability picture for limitation of the left knee movement and/or instability of the left knee warrants an evaluation in excess of 10 percent at any time during the pendency of the appeal. Left knee flexion was shown to be limited to no more than 60 degrees during the March 2011 examination, and the Veteran even demonstrated improvement in flexion as it was measured at 70 degrees on the March 2016 examination. Again, although the March 2011 and March 2016 examiners noted that the Veteran's pain prevented repetitive use testing in the left knee, the 10 percent rating currently in effect is noted to have been assigned with consideration of the pain causing additional limitation per 38 C.F.R. §§ 4.40, 4.45; otherwise the range of motion testing would not even meet the criteria for a compensable rating under Diagnostic Code 5260. The Board also notes that even with consideration of VAOPGCPREC 9-2004 (Sept. 17, 2004), higher ratings than 10 percent are not warranted for either knee for limitation of extension at any point during the pendency of the appeal. Each knee had fully normal 0 percent extension on every VA examination. Thus a compensable rating is not met for limited extension of either knee under Diagnostic Code 5261. Additionally, there is no evidence of ankylosis of either knee, thus higher ratings are not warranted under Diagnostic Code 5256 for either knee. Regarding instability, the Board acknowledges that the Veteran reported instability in his left knee; however, on each of the three examinations the examiner did not find any evidence of instability in the left knee. Accordingly, the Board finds that the preponderance of the evidence is against a finding that a separate 10 percent rating is warranted for instability of the left knee pursuant to Diagnostic Code 5257. Again, even with consideration of functional impairment caused by factors such as pain, weakness, fatigability, incoordination, or pain on movement of a joint, the Veteran's gouty arthritis of the left knee was not manifested by motion limited to 30 degrees from flexion, 10 degrees extension, ankylosis or instability during the entire period of the appeal. Thus, a disability rating in excess of 10 percent for a left knee condition is not warranted. Bilateral Foot Conditions The Veteran was granted 10 percent rating for gouty arthritis of the right and left feet effective March 11, 2008, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5280. Diagnostic Code 5280 corresponds to unilateral hallux valgus. Under Diagnostic Code 5280, a 10 percent rating is warranted for either severe hallux valgus equivalent to amputation of the great toe, or operated hallux valgus with resection of the metatarsal head. The Veteran currently receives the maximum evaluation available under this diagnostic code for both of his foot conditions. The Veteran was also granted a temporary 100 percent evaluation for his right foot condition due to the convalescence period following his bone spur removal and metatarsophalangeal fusion, effective September 14, 2010 pursuant to 38 C.F.R. § 4.30. The 10 percent rating under Diagnostic Code 5280 was restored effective January 1, 2011. The Veteran was afforded a VA examination in September 2008 to evaluate the severity of his bilateral foot conditions. He reported significant continuous pain in his great toes and his feet in general. He stated that he experienced symptoms of weakness, stiffness, swelling, heat, redness, fatigability, and lack of endurance, with flare-ups of increased pain once a week. He also reported that he had bunion surgery to each foot within the last two to three years. According to him, his mobility was severely restricted by the symptoms that impacted his bilateral lower extremity joints and he was unable to stand for more than a few minutes at a time. A physical examination revealed mild swelling of the feet, with particular swelling noted in the right metatarsophalangeal (MTP) joint, with no erythema. The overall diagnosis was a hallux valgus deformity of both feet. An X-ray examination dating from April 2008 showed status post bunionectomy with evidence of mild degenerative joint disease involving the first MTP joint as well as pes planus of the right foot. The Veteran was afforded a new VA examination in March 2011 to again evaluate the severity of his bilateral foot conditions. He reported throbbing pain 85 percent of the time with flare-ups once a week that lasted up to four days at a time. According to him walking increased his pain and he was restricted to walking one half block with a cane. He did state, however, that he had no problem with activities of daily living and acknowledged that he had no incapacitating episodes during the past 12 months. A physical examination of the right foot showed that the Veteran was able to plantarflex 55 degrees and dorsiflex -10 degrees while inversion was 28 degrees and eversion was five degrees. The examiner noted no loss of function with repetitive motion. Symptoms included generalized swelling and tenderness with no heat or redness. An X-ray examination of the right foot showed evidence of an attempted metatarsophalangeal fusion which, in the examiner's opinion, had not healed satisfactorily. The examiner also noted a pseudoarthritis present at the metatarsophalangeal joint; however, the overall alignment of the toe appeared to be satisfactory. A physical examination of the left foot showed that the Veteran was able to plantarflex 50 degrees and dorsiflex -15 degrees, while inversion was 20 degrees and eversion was 15 degrees. The examiner noted no loss of function with repetitive motion. Symptoms included generalized swelling and tenderness with no heat or redness. An X-ray examination of the left foot showed satisfactory toe alignment. The Veteran was afforded yet another VA examination in March 2016 to evaluate the severity of his bilateral foot conditions. He reported trouble with prolonged walking and physical activity in general. No symptoms of flatfoot, Morton's disease, metatarsalgia, hammer toe, clawfoot or hallux valgus were noted. The examiner noted the following functional loss stemming from the Veteran's bilateral foot conditions: less movement than normal, weakened movement, incoordination, pain on movement and on weight-bearing, swelling, disturbance of locomotion, and interference with standing. The examiner also noted a scar on the right foot that was six centimeters long by one and a half centimeters wide; it was not noted to be painful or unstable. The overall functional impact was limited standing, walking, weight bearing or any physical activity, which the examiner opined was moderate to severe in its impact on his daily activities and occupational functioning. During the March 2017 hearing, the Veteran reported symptoms of constant swelling and soreness in his feet, with swelling most prominent in the morning after waking up from sleeping. According to the Veteran, he would regularly wake up and not be able to get out of bed due to the swelling and soreness in his feet and ankles. A review of VA treatment records shows that the Veteran has been receiving treatment for his bilateral foot conditions during the entire pendency of the appeal. In an April 2008 podiatry consultation, the Veteran reported significant pain at the first metatarsophalangeal joint of his right toe which prevented him from walking flat footed. An X-ray examination showed narrowed joint space with degenerative changes to the joint as well as possible gouty changes to the joint. He was diagnosed with hallux valgus, hallux limitus, and plantar fasciitis. Thereafter, a September 2010 operative report indicates that the Veteran had right foot surgery characterized as arthrodesis of the first metatarsophalangeal joint and fibular sesamoidectomy of the right foot. The postoperative diagnosis was hallux abductus valgus with hallux rigidus of the right foot. More recently, an April 2014 outpatient record shows that the Veteran reported throbbing pain in his toes and left foot. Upon consideration of the record, the Board finds that, for the period prior to March 21, 2016, the Veteran's disability picture for his left and right foot conditions did not warrant an evaluation in excess of 10 percent, independent of the temporary 100 percent evaluation granted for the post-operative period of convalescence of the right foot, which is addressed in further detail below. To begin, for this period of time the Veteran was receiving the maximum 10 percent evaluation under Diagnostic Code 5280. Moreover, the Veteran's right and left foot did not manifest symptoms of claw foot (Diagnostic Code 5278), malunion or nonunion of the tarsal or metatarsal bones (Diagnostic Code 5283), or pes planus (Diagnostic Code 5276) that would provide for a higher 20 percent evaluation. The only available diagnostic code for consideration of a higher evaluation of either foot condition during this time period is Diagnostic Code 5284, which is a general rating for "other foot injuries." Under Diagnostic Code 5284, a 10 percent rating is assigned for moderate foot injury. A moderately severe foot injury warrants a 20 percent rating. A severe foot injury warrants a 30 percent rating. A Note to Diagnostic Code 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. The Board notes that words such as "mild," "moderate," and "severe" are not defined in the 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 (2016). During the period prior to March 21, 2016, the Board finds that neither the Veteran's lay statements nor the clinical evidence support a higher 20 percent evaluation, as neither the left not the right foot condition approximate moderately severe symptomatology. On both the September 2008 and March 2011 examinations, the predominant symptoms noted were mild swelling and moderate pain. Moreover, on the March 2011 examination the Veteran acknowledged himself that his feet alone did not restrict his activities of daily living and did not result in any incapacitating episodes, at least within the last 12 months preceding the examination. There is no other evidence which suggests that the Veteran's left and right foot conditions manifested symptoms that were more than moderate in severity. Accordingly, during the period prior to March 21, 2016 and excepting the temporary 100 % evaluation assigned for the right foot for convalescence following surgery, the Veteran's left and right foot conditions did not warrant an evaluation in excess of 10 percent. Regarding the temporary evaluation of 100 percent status post right foot surgery, 38 C.F.R. § 4.30 sets forth provisions governing convalescent ratings. It provides that a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30 (2016). In order to attain the temporary total disability rating, the Veteran must demonstrate that his service connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). An extension of 1, 2, or 3 months beyond the initial 3 months may be granted and extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made, upon request. 38 C.F.R. § 4.30(b). The United States Court of Appeals for Veterans Claims (Court) has determined that the inability to return to any employment would, in fact, show a need for continuing convalescence under 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291 (1995); Felden v. West, 11 Vet. App. 427, 430 (1998). The Court has defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Felden, 11 Vet. App. at 430 (citing Dorland's Illustrated Medical Dictionary). The Court also defined recovery as "the act of regaining or returning toward a normal or healthy state." Id (citing Webster's Medical Desk Dictionary 606 (1986)). Upon review of the record, the Board finds that no extension of the assigned temporary 100 percent disability rating under 38 C.F.R. § 4.30 is warranted. VA treatment records available in the claims file show that he was cleared to return to work by his surgeon on December 3, 2010. The Veteran has presented no other evidence or argument in support of an extension of the convalescence period following his right foot surgery on September 14, 2010. Accordingly, the Board finds that it was appropriate to grant the Veteran a three-month period of temporary 100 percent evaluation for his post-right foot surgery convalescence and that an extension of that temporary 100 percent evaluation is not warranted. Moving on to the period from March 21, 2016, the Board finds that an increased evaluation of 20 percent for both the left and right foot conditions is warranted, albeit under Diagnostic Code 5284, corresponding to the date of the March 2016 VA examination. To begin, on the March 2016 examination the examiner denied the existence of hallux valgus of either foot. Furthermore, the examiner again denied the existence of symptoms of claw foot, malunion or nonunion of the tarsal or metatarsal bones, or pes planus; thus, the only applicable diagnostic criteria would be under Diagnostic Code 5284, for "other foot injury." On the March 2016 VA examination, for both feet, the examiner noted symptoms of pain and swelling contributing to the following functional loss: less movement than normal, weakened movement, incoordination, pain on movement and on weight-bearing, swelling, disturbance of locomotion, and interference with standing. The examiner evaluated the overall functional impact as moderate to severe, marked by interferences with standing, walking, weight bearing or any physical activity. Moreover, during the March 2017 hearing, the Veteran reported symptoms of pain and swelling of his feet which had a marked impact on his daily functioning and intermittently requiring assistance in order to leave his bed. On balance, and granting the Veteran the benefit of the doubt, the Board thus finds that the Veteran's disability picture for his right and left foot conditions most closely approximated the 20 percent evaluation under Diagnostic Code 5284 for moderately severe symptoms. A 30 percent evaluation is not warranted, however, as the evidence does not show that the Veteran has been significantly impacted by his left and right foot conditions such that the conditions could be considered severe in nature; indeed, the Veteran's own testimony during the March 2017 hearing indicates that his symptoms typically subside during the day and are most pronounced after waking up in the morning. The Board notes that the post-operative scar on the right foot did not meet the criteria for a compensable rating under either Diagnostic Code 7801 or 7804, as it was not painful or unstable on the March 2016 examination and did not exceed 39 square centimeters. Finally, the Board has considered, in compliance with DeLuca, the extent to which a higher rating is warranted for functional loss for either the left or right foot conditions at any time during the appeal period. Throughout the appeal period, the Veteran reported pain and swelling that interfered with his standing, walking, and physical activity in general. However, during the March 2011 examination, the Veteran acknowledged that his feet alone did not restrict his activities of daily living, and the examiner did not note any functional loss beyond that reported by the Veteran. Furthermore, although the March 2016 examiner noted functional loss stemming from the bilateral foot conditions, this additional functional loss was already taken into consideration by the Board in assigned the increased 20 percent evaluations for the period from the date of the March 2016 examination. Accordingly, the Board finds that higher ratings for either the left or right foot on the basis of functional loss are not warranted. Bilateral Ankle Conditions The Veteran was granted 10 percent ratings for gouty arthritis of the right and left ankles effective March 11, 2008, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271, as analogous to limited motion of the ankle. Under Diagnostic Code 5271 (ankle, limited motion), marked limitation of motion in the ankle warrants a 20 percent disability rating, and moderate limitation of motion in the ankle warrants a 10 percent disability rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 5270 (ankylosis of the ankle), 5272 (ankylosis of the subastragalar joint), 5273 (malunion of os calcis or astragalus), and 5274 (astragalectomy) are not applicable in this instance, as the medical evidence does not show that the Veteran has any of those conditions. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272-5274. For purposes of VA compensation, normal dorsiflexion of the ankle is zero to 20 degrees, and normal ankle plantar flexion is zero to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. The Board again notes that the words "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." See 38 C.F.R. § 4.6. The Veteran was afforded a VA examination in September 2008 to evaluate the severity of his bilateral ankle conditions. He reported significant intermittent pain in his bilateral lower extremities, to specifically include his ankles. He stated that he experienced symptoms of weakness, stiffness, swelling, heat, redness, fatigability, and lack of endurance, with flare-ups of increased pain once a week. A physical examination revealed mild swelling of the ankles, with no pretibial edema evident. Dorsiflexion was zero degrees bilaterally with pain at 40 degrees, eversion was zero to five degrees bilaterally with pain at five degrees, and inversion was zero to 10 degrees bilaterally with pain at 10 degrees. Repetitive testing resulted in an increase in pain but no decrease in range of motion. The examiner also noted mild fatigue, weakness, lack of endurance and incoordination with repetitive testing of the ankles. An X-ray examination of the ankles showed some mild osteoarthritic changes of the right ankle mortise. The Board notes that while the March 2011 VA examiner did not explicitly discuss the severity of the bilateral ankle conditions, they did take range of motion measurements of the bilateral ankles. Right foot range of motion testing showed that the Veteran was able to plantarflex 55 degrees and dorsiflex -10 degrees while inversion was 28 degrees and eversion was five degrees. Left foot range of motion testing showed that the Veteran was able to plantarflex 50 degrees and dorsiflex -15 degrees while inversion was 20 degrees and eversion was 15 degrees. The examiner noted no loss of function with repetitive motion of either foot. The Veteran was afforded a new VA examination in March 2016 to again evaluate the severity of his bilateral ankle conditions. He reported constant pain in both ankles as well as difficulty with prolong walking and physical activity in general. Range of motion testing
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