PERSISTENT DEPRESSIVE DISORDER

NEELY M. PEDEN · 2026 · Case ID: A26040074

MIXED

Summary

The veteran, who served from June 2002 to May 2023, appeals the denial of increased ratings for his persistent depressive disorder, left knee strain with prepatellar bursitis, left knee limitation of flexion, and right foot degenerative arthritis. The Board granted an increased rating for persistent depressive disorder to 70 percent, finding that the veteran's symptoms, including suicidal ideation, impaired impulse control, difficulty adapting to stress, and inability to maintain relationships, met the criteria for this evaluation. The Board noted that while the veteran's symptoms were worsening, they did not rise to the level of total occupational and social impairment required for a 100 percent rating. For the left knee strain with prepatellar bursitis, the Board denied an increased rating beyond 10 percent for the period prior to June 5, 2024, citing painful motion as the basis for the minimum compensable rating, but finding no objective evidence of more severe limitation. For the period after June 5, 2024, the Board denied an increased rating beyond 30 percent, as the measured limitation of extension did not meet the criteria for a higher evaluation. The claim for left knee limitation of flexion was denied as non-compensable, as the worst measured flexion was 60 degrees, not meeting the criteria for a 10 percent rating. For right foot degenerative arthritis, the Board granted a 10 percent rating, finding the veteran's reported pain and difficulty with weight-bearing, as noted by both VA and private examiners, met the criteria for moderate disability, but did not meet the threshold for a higher rating.

Rationale

Symptoms approximate criteria for 70% rating.; Suicidal ideation, impaired impulse control, difficulty adapting to stress, and relationship issues noted.; Persistent depressive disorder rated under DC 9433.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

9433

Docket No.

250424-540981

Full Decision Text

Citation Nr: A26040074
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 250424-540981
DATE: April 29, 2026

ISSUES

Entitlement to an increased rating in excess of 50 percent for persistent depressive disorder, late onset, with moderate anxious distress, with pure dysthymic syndrome.

Entitlement to an increased rating in excess 10 percent prior to June 5, 2024, and in excess of 30 percent thereafter for left knee strain with prepatellar bursitis (limitation of extension).

Entitlement to a compensable rating for left knee limitation of flexion.

Entitlement to an increased rating in excess of 10 percent for right foot degenerative arthritis.

ORDER

Entitlement to an increased initial rating of 70 percent, but no higher, for the entire period on appeal for persistent depressive disorder, late onset, with moderate anxious distress, with pure dysthymic syndrome is granted.

Entitlement to an increased rating in excess 10 percent prior to June 5, 2024, and in excess of 30 percent thereafter for left knee strain with prepatellar bursitis (limitation of extension) is denied.

Entitlement to a compensable rating for left knee limitation of flexion is denied.

Entitlement to an increased rating in excess of 10 percent for right foot degenerative arthritis is denied.

FINDINGS OF FACT

1. For the period on appeal, the Veteran's depressive disorder has been manifested by occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms of near-continuous depression affecting his ability to function independently, appropriately, and effectively, suicidal ideation, impaired impulse control, difficulty in adapting to stressful circumstances including work or a work-like setting, and an inability to establish and maintain effective relationships.

2. For the period prior to June 5, 2024, the Veteran's left knee strain limitation of extension is manifested by pain on motion, limitation of extension at worst to 10 degrees, limitation of flexion to 90 degrees with occasional swelling and weakness; crepitus, ankylosis, subluxation, and instability have not been shown.

3. For the period from June 5, 2024, the Veteran's left knee strain limitation of extension is manifested by pain on motion, and limitation of extension at worst with 20 degrees; crepitus, ankylosis, subluxation, and instability have not been shown.

4. For the entire period on appeal, the Veteran's left knee limitation of flexion is manifested at worst by limitation of flexion of 60 degrees.

5. For the period on appeal, the Veteran's right foot degenerative arthritis has been manifested by symptoms to include pain, pain on motion, difficulty standing for long periods, and are characterized as moderate.

CONCLUSIONS OF LAW

1. The criteria for an increased initial rating of 70 percent, but no higher, for service-connected persistent depressive disorder have been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9433.

2. For the period prior to June 5, 2024, the criteria for an increased rating in excess of 10 percent for the left knee limitation of extension have not been met or approximated. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Code 5261.

3. For the period from June 5, 2024, the criteria for an increased rating in excess of 30 percent for the left knee limitation of extension have not been met or approximated. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Code 5261.

4. For the entire period on appeal, the criteria for a compensable rating for left knee limitation of flexion have not been met or approximated. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.3
been met or approximated. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Code 5261.

4. For the entire period on appeal, the criteria for a compensable rating for left knee limitation of flexion have not been met or approximated. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Code 5260.

5. For the period on appeal, the criteria for an increased rating in excess of 10 percent for the Veteran's right foot degenerative arthritis disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5284.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 2002 to May 2023.

This matter comes before the Board of Veterans' Appeals (Board) from May 2024 and February 2025 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which is the Agency of Original Jurisdiction (AOJ) in this appeal.

In the April 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2024 and February 2025 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

During the pendency of this appeal, the Veteran filed a Privacy Act request dated May 12, 2025. VA responded to that request in full in a response dated April 14, 2026, and the Board considers that request to be satisfied and this appeal ready to adjudicate.

When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Veteran's records indicate he is currently employed, and he has not contended that his service-connected disabilities prevent or inhibit opportunities for gainful employment. The Board therefore finds a claim for TDIU is not inferred from the record. The Veteran already receives SMC K-1, effective from June 5, 2024. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not consider further SMC at this time.

Allegation of Clear and Unmistakable Error (CUE)

In the course of this appeal, the Veteran's representative has made allegations of CUE with regard to a privately procured psychological examination from August 2023 in attempting to justify a claim for a higher rating for the Veteran's service-connected persistent depressive disorder. The Board observes that nowhere in the claims file has the Veteran or her representative ever filed a motion for CUE for either an RO rating decision or a Board decision. Claimants alleging CUE in an RO decision must describe the alleged error "with some degree of specificity" and explain why, but for the error, the result would have been "manifestly different". Pierce v. Principi, 240 F.3d 1348, 1355 (Fed. Cir. 2001) (quoting Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Board CUE motions must be in writing, contain the moving party's or the representative's signature, and be mailed to a specific address. 38 C.F.R. § 20.1404(a)-(c). Here, neither the Veteran nor his representative ever attempted any communication with VA that might be construed as an actual CUE motion, and thus the Board finds that the explanatory language of the Veteran's representative that resembles a potential CUE motion to be without effect. The Board will address the private psychological evaluation submitted with the Veteran's August 2023 supplemental claim in the appropriate section below.

Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Increased Schedular Ratings - General

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §
as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

If the evidence for and against a claim is in approximate balance, the claim will be granted. 38 C.F.R. § 4.
, 24 Vet. App. 428 (2011).

If the evidence for and against a claim is in approximate balance, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the balance of the evidence is persuasively against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Increased Rating -Persistent Depressive Disorder

Legal Standards -Persistent Depressive Disorder

The Veteran's persistent depressive disorder is rated under Diagnostic Code 9433. 38 C.F.R. § 4.130. Persistent depressive disorder is rated using the General Rating Formula for Mental Disorders (General Formula). The Veteran was initially service connected for a depressive disorder in a June 2023 rating decision with a 50 percent evaluation effective from June 1, 2023, the day after the Veteran left active service.

Under the General Formula, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Id.

A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, other trauma disorder, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id.

A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id.

Use of the term "such as" in the criteria for a rating under § 4.130 indicates that the list of symptoms that follows is "non-exhaustive," meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign to a rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and the plain language of the regulation makes it clear that "the veteran's impairment must be 'due to' those symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 116-17. "[I]n the context of a 70 [percent] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 117. Thus, assessing whether a 70 percent evaluation is warranted requires a two-part analysis: "The... regulation contemplates [: (1) ] initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation[; and (2) ] an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas." Vazquez-Claudio, 713 F.3d at 118.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id.

Therefore, although the Veteran's symptoms are the "primary consideration" in assigning a disability evaluation under § 4.130, determining whether the Veteran is entitled to a 70 percent disability evaluation "also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas." Vazquez-Claudio, 713 F.3d at 118-19. Thus, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a Veteran. Rather, "VA must engage in a holistic analysis" of the severity, frequency, and duration of the signs and symptoms of the veteran's mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017).

Evidence and Analysis -Persistent Depressive Disorder

The Veteran is currently receiving a 50 percent rating for his persistent depressive disorder under Diagnostic Code 9433, since the effective date of June 1, 2023, the day after he separated from active-duty service. As part of separation from active service, the Veteran received a series of VA examinations just prior to separating from active service, such that VA was able to rate him on multiple disabilities effective the day after he left service.

In August 2023, the Veteran filed a supplemental claim, seeking a rating higher than the 50 percent originally granted. With that claim, the Veteran submitted the report from a private psychological evaluation from Dr. E.C. This psychologist examiner diagnosed persistent depressive disorder in conformance with the DSM-5. Dr. E.C. first noted the Veteran's mental health as observed was worse than described in the Veteran's previous VA mental disorders examination from December 2022. The Veteran was noted to isolate himself from others and withdraws in any social gathering. He can exhibit grossly inappropriate behavior through erratic outbursts and shows impulse control issues. The examiner noted the Veteran suffers through periods of marital discord, having been married three times, and has many difficulties adapting to stressful work and social circumstances, due to his psychological condition. The
higher than the 50 percent originally granted. With that claim, the Veteran submitted the report from a private psychological evaluation from Dr. E.C. This psychologist examiner diagnosed persistent depressive disorder in conformance with the DSM-5. Dr. E.C. first noted the Veteran's mental health as observed was worse than described in the Veteran's previous VA mental disorders examination from December 2022. The Veteran was noted to isolate himself from others and withdraws in any social gathering. He can exhibit grossly inappropriate behavior through erratic outbursts and shows impulse control issues. The examiner noted the Veteran suffers through periods of marital discord, having been married three times, and has many difficulties adapting to stressful work and social circumstances, due to his psychological condition. The Veteran reported he worries about his mental health and there are many days where he finds it difficult to get motivated. He reported a lack of intimacy with his current partner which in turn leads to further discord. The examiner described the Veteran as void of empathy and emotionally distant much of the time, and that he lacks the ability to communicate effectively. The examiner considered the Veteran's daily routine to be shallow and non-productive, and that he has no friends. He feels that people are in general out to get him and is suspicious of strangers. He continues to suffer chronic sleep problems and from frequent awakenings. The Veteran suffers from gross impairment of his communication skills and his thought process is often tangential. The Veteran was also noted to suffer from periods of passive suicidal ideation. The Veteran's orthopedic disabilities are painful on a daily basis, which further increases his depressive symptoms. The Veteran was considered to have a flat and constricted affect during the examination, with a low mood and moderate anxiety. Panic attacks were described as frequent and he worries about his ability to function independently. The Veteran was noted to take prescription medication but that it isn't completely effective with the current type and dosage.

VA provided a mental disorders examination in April 2024. This examiner continued the previous diagnosis of persistent depressive disorder, late onset, with moderate anxious distress, with pure dysthymic syndrome. An earlier examination performed near the end of the Veteran's active service had also diagnosed anxiety, but this VA examiner considered the anxiety symptoms subsumed into the peristent depressive disorder. Occupational and social impairment were described as with reduced reliability and productivity. Overall, this VA examiner considered the Veteran's overall evaluation to be similar as to his previous end-of-service examination from December 2022. The Veteran remained employed as a cook and had been with his current employer for about ten months at the time of the examination. The Veteran reported no psychiatric hospitalizations or suicide attempts since his last evaluation. Symptoms noted by the examiner include depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran reporting frequent sadness, disinterest in pleasurable activities, social disinterest and withdrawal, feeling distant from people, worries, feelings of apprehension, nervousness, trouble falling asleep, trouble maintaining sleep, frequent forgetfulness, impaired concentration, inattention, impaired motivation to complete tasks, procrastination, irritability, feeling misunderstood by others, feeling socially isolated, and having limited social support.

1. Entitlement to an increased rating of 70 percent, but no higher, for the entire period on appeal, for persistent depressive disorder, late onset, with moderate anxious distress, with pure dysthymic syndrome is granted.

Based on the medical record, the Board finds that the weight of the evidence demonstrates that a rating of 70 percent is warranted for the Veteran's persistent depressive disorder, effective for the entire period on appeal. Here, the Board notes the record of severity of the Veteran's disability most closely approximates the criteria for a 70 percent disability evaluation. During this period the Veteran generally complained of depression, anxiety, nightmares, intrusive thoughts, memory issues, concentration problems, irritability, and isolationist tendencies, all of which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Other symptoms in this period include multiple passive suicidal ideations, diminished interest, fatigue, and feelings of worthlessness, along with difficulty in maintaining work, school, and family relationships. The Veteran's symptoms have been somewhat consistent in this period, though worsening slowly over time, and they have resulted in an overall disability picture that more nearly approximates deficiencies in most areas. The Veteran has been on psychiatric medications and other psychiatric related therapies, such as TMS for his depression, throughout the appeal period, and the types and dosages have been adjusted, indicating the medication is only partially working.

The Board notes especially the Court's language of Bankhead v. Shulkin: "the language of the regulation indicates that the presence of suicidal ideation, alone, that is, a veteran's thoughts of his
ations, diminished interest, fatigue, and feelings of worthlessness, along with difficulty in maintaining work, school, and family relationships. The Veteran's symptoms have been somewhat consistent in this period, though worsening slowly over time, and they have resulted in an overall disability picture that more nearly approximates deficiencies in most areas. The Veteran has been on psychiatric medications and other psychiatric related therapies, such as TMS for his depression, throughout the appeal period, and the types and dosages have been adjusted, indicating the medication is only partially working.

The Board notes especially the Court's language of Bankhead v. Shulkin: "the language of the regulation indicates that the presence of suicidal ideation, alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." 29 Vet. App. 10, 21 (2017). Bankhead also clearly expressed that suicidal ideation in the 70 percent criteria includes a "broad continuum that encompasses both passive and active suicidal ideation." Id. at 21.

In light of the foregoing, the Board finds that the Veteran's persistent depressive disorder symptoms have resulted in an overall disability picture that more nearly approximates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: speech intermittently illogical, obscure, or irrelevant; frequent panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability); some neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The Board notes variation among the treatment notes and the examination during this period but also notes the Veteran has displayed declining symptoms and behaviors with increasing worsening since the beginning of this period. The Veteran has indicated frustration with his ongoing treatment, which indicates current therapy is only partially helping.

The Board notes that some of the multiple examiners provided detailed symptomatology that it characterizes as occupational and social impairment with reduced reliability and productivity for this period, but also that his symptoms over time since the original date of claim more closely aligns with the criteria of a 70 percent rating, vice a 30 percent or 50 percent rating for this period. However, other medical examiners provided assessments that were more indicative of occupational and social impairment with deficiencies in most areas, to include the more recent treatment sessions. A Veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Rather, the criteria ("such symptoms as") provides guidance as to the severity of symptoms contemplated for each rating in addition to permitting consideration of other symptoms particular to the Veteran. Id.

A rating in excess of 70 percent is not warranted at any time covered in this period. The evidence of record generally shows that the Veteran appeared oriented and understood the consequences of his actions. He has had employment difficulties directly due to his persistent depressive disorder. The Veteran has been married three times but experiences marital and domestic discord. The Veteran preferred isolation and exhibited significant avoidance behavior. Anxiety and panic attacks are noted in this period and are weekly or more than weekly in regularity. Multiple medical providers noted suicidal ideation in the Veteran, commencing back to and during active service, and the Veteran been treated because of active and passive suicidal ideation.

The Veteran's persistent depressive disorder symptoms do not more nearly approximate total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. For these reasons, and in consideration of all the evidence of record, the Board finds that total occupational and social impairment due to persistent depressive symptoms is not demonstrated during this period.

Accordingly, the evidence shows that the overall disability picture for this period persuasively weighs in favor for the criteria for the assignment of an increased evaluation of 70 percent, but no higher, for the Veteran's service-connected persistent depressive disorder during the period on appeal. Bankhead, 29 Vet. App. at 22; Mauerhan, 16 Vet. App. at 442; Vasquez-Claudio, 713 F.3d at 116-17; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

All potentially applicable diagnostic codes have been considered, and there is no basis
social impairment due to persistent depressive symptoms is not demonstrated during this period.

All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the ratings assigned herein for the appeal period. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Therefore, for the reasons stated above, the Board finds that a rating of 70 percent, but no higher, for the period on appeal for persistent depressive disorder is warranted. See Hart, 21 Vet. App. 505.

Increased Ratings - Musculoskeletal Disabilities

Additional Discussion for Increased Ratings for the Left Knee and the Right Foot

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").

The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016).

Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.

The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016).

Knee Disability - Legal Standards

The Veteran is rated for his left knee under Diagnostic Code 5261, limitation of extension, with a 10 percent rating from June 1, 2023, to June 5, 2024, and a 30 percent rating thereafter. The Veteran's left knee also has a separate rating for left knee limitation of flexion, with a noncompensable rating from June 5, 2024. The Board notes that Veteran's left knee ratings all originate after the effective date of the current musculoskeletal rating standards found in 38 C.F.R. § 4.71a, which has been in effect since February 7, 2021; the Board thus need not discuss the pertinent standards in effect prior to that date.

Under Diagnostic Code 5260, a non-compensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, a non-compensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II.

Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum).

However
71a, Plate II.

However, based on the medical evidence before the Board, ankylosis, other impairment to include recurrent subluxation or lateral instability, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, and genu recurvatum have not been found or associated with the Veteran's knee disabilities and thus will not be considered here.

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See also VAOPGCPREC 9-04 (holding that separate ratings under Diagnostic Code 5260 for limitation of flexion of the knee and Diagnostic Code 5261 for limitation of extension of the knee may be assigned).

Evidence and Analysis - Left Knee Limitation of Extension and Limitation of Flexion

VA provided an examination for the Veteran's knees and lower legs in January 2023. As only the left knee is on appeal here, the right knee evaluation will not be discussed. The examiner diagnosed a left knee strain with prepatellar bursitis. Flareups were noted as 1-2 times a month, lasting 1-2 hours each time, characterized with aching pain. The Veteran characterized the severity as moderate, and that running was a precipitating factor. There was no instability, recurrent subluxation, or frequent effusion of the left knee noted. Range of motion measurements were considered abnormal, and limited range was considered functional loss. In active range of motion, flexion was measured to 110, and extension to zero. There was no entry for passive range of motion. No evidence of pain with motion was noted, and no objective evidence of crepitus was noted. There was objective evidence of localized tenderness or pain on palpation of the left knee joint, described as tenderness of the superior pole of the patella. There was no loss of range of motion after three repetitions. Estimated range of motion after repeated use over time was 105 degrees in flexion and zero degrees in extension. No flareups were noted during the exam but flexion was estimated at 100 degrees during flareups and in zero degrees in extension. No muscle atrophy was noted and no ankylosis was noted. No joint instability was noted. No tibial or fibular impairment was noted. There were no meniscal conditions noted, and no history of surgery for either knee was noted. The Veteran required no assistive devices for his knees.

In September 2024, the Veteran's representative provided a private knee examination accomplished in August 2024 as part of his increased rating claim. Left knee prepatellar bursitis was diagnosed. Range of motion was considered abnormal and measured to 100 degrees in flexion and zero degrees in extension. Evidence of pain in non-weight bearing was noted in active motion and caused functional loss. No objective evidence of crepitus was noted. There was objective evidence of localized tenderness or pain on palpation of the left knee joint, described as tenderness of the superior pole of the patella. During flareups, flexion was estimated to 60 degrees and 25 degrees in extension. Additional factors causing disability included swelling and less movement than normal. No recurrent subluxation or persistent instability was noted. No muscle atrophy was noted and no ankylosis was noted. No meniscal conditions were noted.

2. Entitlement to an increased rating in excess 10 percent prior to June 5, 2024, and in excess of 30 percent thereafter for left knee strain with prepatellar bursitis (limitation of extension) is denied.

For the Veteran's left knee disability under Diagnostic Code 5261, for the period prior to June 5, 2024, the Board finds that a rating in excess of a 10 percent evaluation is not warranted. While the extension measurements in this period would not warrant a compensable rating for the left knee, a rating of 10 percent is appropriate here due to painful motion of the knee, where the minimum compensable evaluation is 10 percent because 38 C.F.R. § 4.59 allows for consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint, which for the left knee, is 10 percent. 38 C.F.R. § 4.59; see Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016); Petitti v. McDonald, 27 Vet. App. 415 (2015).

To warrant the next higher rating above the current 10 percent for painful motion, a 20 percent rating, knee flexion would have to be limited to 16-30 degrees or less, and/or knee extension would have to be limited to 15-19 degrees or greater. This has never been shown in this appeal period, even with consideration of additional loss of motion due to pain and swelling during flare-ups.

For the Veteran's left knee disability under Diagnostic Code 5261, for the period from June 5, 2024, the Board finds that a rating in excess of a 30 percent evaluation is not warranted. For this period, the Board finds that a 30 percent evaluation, but no higher, for the left knee disability is appropriate based on limitation of extension measured at worst as 25 degrees in an August 2024 medical examination. A higher rating of 40 percent for limitation of extension of the left knee is not warranted unless the evidence shows a measurement limited to 30-44 degrees in extension. Neither has been observed in any VA or private medical evidence.

3. Entitlement to a compensable rating for left knee limitation of flexion is denied.

For the Veteran's left knee disability under Diagnostic Code 5260, for the period from the initial effective date of service connection of June 5, 2024, the Board finds that a compensable rating in excess of a zero percent evaluation is not warranted. The worst reading in left knee flexion was observed on the August 2024 examination, noting a flexion measurement of 60 degrees.

To warrant the next higher rating above the current zero percent for limitation of flexion, a 10 percent rating, knee flexion would have to be limited to 31-45 degrees or less, or objective evidence of painful motion of the knee. This has never been shown in this appeal period, even with consideration of additional loss of motion due to pain and swelling during flare-ups.

Additionally, the Board has considered the statements regarding flareups by the Veteran, but based on the medical evidence, even with estimates of motion loss in terms of degrees during periods of flare-ups, the criteria for higher evaluations based on range of motion have not been met or approximated in this appeal period. Sharp v. Shulkin, 29 Vet. App. 26 (2017).

The Veteran has reported consistent symptoms of his left knee disability in lay statements and to his examiners on multiple occasions over all the periods on appeal. The Veteran is competent to report pain on motion and limitation of movement. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Moreover, the Board finds him credible, as his reports are internally consistent and there is no evidence to the contrary. Caluza v. Brown, 7 Vet. App. 498 (1995).

Increased Rating for Right Foot Degenerative Arthritis

Legal Standards for Foot Disabilities

The Veteran is service-connected for right foot degenerative arthritis under Diagnostic Code 5003-5284 with a 10 percent evaluation effective from June 1, 2023. The Veteran filed his claim for an increased rating on a VA Form 21-526EZ on March 9, 2024, which under
. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Moreover, the Board finds him credible, as his reports are internally consistent and there is no evidence to the contrary. Caluza v. Brown, 7 Vet. App. 498 (1995).

Increased Rating for Right Foot Degenerative Arthritis

Legal Standards for Foot Disabilities

Throughout the period on appeal, the Veteran has endorsed persistent pain in the right foot, as well as pain on walking and trouble with weight bearing, which he is competent to report. Jandreau, 492 F.3d 1372.

Under 38 C.F.R. § 4.71a, for Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. See also Petitti v. McDonald, 27 Vet. App. 415 (2015).

In the absence of limitation of motion, rate as follows: a 10 percent evaluation is assigned for painful or limited motion of a major joint or group of minor joints and may also be applied once to multiple joints if there is no limited or painful motion. A 20 percent is assigned for X-ray evidence that shows involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a.

Because DC 5003 requires that "satisfactory of evidence of pain" be "objectively confirmed," a Veteran's testimony, alone, is not enough. For the minimum compensable rating for motion which is painful but not actually limited to a compensable degree, a claimant's bare statement is not satisfactory evidence of painful motion. Petitti v. McDonald, 27 Vet. App. 415, 427 (2015) (holding that painful motion may be "objectively confirmed" by either a clinician, including a claimant's assertion of painful joints that is confirmed by a clinician's statement there is a history of "recurrent" joint pain or a layperson who witnessed the Veteran experience difficulty walking, standing, or sitting, or display a facial expression, such as wincing, indicative of pain). In other words, satisfactory lay evidence of painful motion also includes lay descriptions from other than the Veteran of painful motion; lay observations of witnesses of painful motion, lay statements of observed visible behavior or facial expressions during painful motion, as well as lay reports of difficulty walking, standing, sitting, or undertaking other activity. Id. at 429.

The Veteran's right foot disabilities are currently rated under Diagnostic Code 5284, governing other foot injuries. See 38 C.F.R. §§ 4.20, 4.71a; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (Diagnostic Code 5284 only applies to foot disabilities for which there is not already a specific Diagnostic Code). The Board has considered and rejected other Diagnostic Codes for the feet such as flatfoot, weak foot, claw foot pes cavus, metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or malunion or nonunion of tarsal or metatarsal bones, as those disabilities have not been found in this Veteran. As previously noted, the Veteran is separately service-connected for bilateral plantar fasciitis, but that issue is not on appeal here.

Diagnostic Code 5284 for "foot injuries, other" provides for a 10 percent rating for a moderate foot disability, a 20 percent rating for moderately severe foot disability, and the maximum 30 percent rating for severe foot disability.
Diagnostic Code). The Board has considered and rejected other Diagnostic Codes for the feet such as flatfoot, weak foot, claw foot pes cavus, metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or malunion or nonunion of tarsal or metatarsal bones, as those disabilities have not been found in this Veteran. As previously noted, the Veteran is separately service-connected for bilateral plantar fasciitis, but that issue is not on appeal here.

Diagnostic Code 5284 for "foot injuries, other" provides for a 10 percent rating for a moderate foot disability, a 20 percent rating for moderately severe foot disability, and the maximum 30 percent rating for severe foot disability. A 40 percent rating is assigned for actual loss of use of the foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note.

Descriptive words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. As with any regulatory interpretation where the terms are not defined in the regulation, we presume those terms carry their ordinary dictionary meaning. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018). The Board finds that these terms are unambiguous and, therefore, a plain dictionary meaning is an appropriate definition. Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); see also 38 C.F.R. § 4.6 (noting, in general, the Board does not evaluate evidence by applying a mechanical formula, but rather conscientiously to the end that its decisions are equitable and just). According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "mild" means gentle in nature or temperate. "Moderate" means limited in scope or effect or average in amount, intensity, quality, or degree. The term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." WEBSTER'S NEW WORLD DICTIONARY (2nd ed. 1999), 1012. "Severe" means very painful or harmful or of a great degree. "Considerable" is defined as "large in extent or degree." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 267 (11th ed. 2012). Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally welly served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether balance and propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

The Board is cognizant of the limit set forth by the amputation rule, which states that the combined rating for a disability shall not exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. Nevertheless, the Board will address the appropriate rating under the relevant Diagnostic Code, understanding that application of the amputation rule will limit the total combined evaluation.

In addition, the Veteran's right and left foot each have been found to have arthritis, as diagnosed by X-ray during regular VA treatment. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010, traumatic arthritis, substantiated by X-ray findings, is rated on limitation of motion of affected parts, as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate DCs, a 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. See also Petitti v. McDonald, 27 Vet. App. 415 (2015).

Evidence and Analysis - Right Foot

VA provided a VA foot conditions examination in January 2023. While both feet were examined, only the right foot degenerative arthritis is on appeal here in this decision, and the Board will not discuss the left foot evaluation. Right foot degenerative arthritis, other than post-traumatic, was diagnosed from 2021. The Veteran stated that his right foot stiffens up and that he has to massage it to give a little relief to bend, and that walking or standing makes it worse. Flareups were reported "a few times in last year," characterized as really painful in the right big toe, heel, and between the second and third toes. The VA examiner reported in the negative if the Veteran had pain on manipulation of the feet, and there were no swelling or characteristic calluses noted. The Veteran wore orthotics in his shoes. Decreased longitudinal arch height was noted on weight-bearing. There was no marked evidence of deformity, and no marked evidence of pronation. The weight-bearing line was not over or medial to the great toe. There was no lower extremity deformity other than pes planus. There was no inward bowing of the achilles tendon, and no marked inward displacement and severe spasm of the achilles tendon. There was no Morton's neuroma, metatarsalgia, hallux valgus condition, hallux rigidus condition, acquired pes cavus, or malunion or nonunion of the tarsal or metatarsal bones. The examiner noted an impression of osteoarthritis of the first MTP joint, moderately severe on the right foot. No pain on physical examination was noted.

The Veteran's representative provided a foot conditions examination performed in August 2024 by a private examiner, uploaded to the claims file in September 2024. Degenerative arthritis, other than posttraumatic, of the right foot was noted. Pain was noted in the right foot, with flareups noted on a weekly basis, characterized by the Veteran as moderate, and lasting several hours. The Veteran reported difficulty with prolonged standing or walking. Pes planus was also noted as a right foot diagnosis, with the examiner noting that disability was separately rated from the current right foot degenerative arthritis. Morton's neuroma, hammer toe, hallux valgus, hallux rigidus, acquired pes cavus, or malunion/nonunion of tarsal or metatarsal bones were not noted. On a scale mild to severe, the examiner characterized the Veteran's right foot degenerative arthritis as moderate, and that the condition did not compromise weight bearing. The Veteran was not noted as requiring arch supports or orthotics, and had never had surgery on his right foot. Pain on exam was noted and contributed to functional loss. No other symptoms contributing to functional loss were noted. The Veteran reported difficulty with prolonged walking or standing due to pain. Evidence of pain was noted with weight-bearing. No other physical findings were noted.

4. Entitlement to an increased rating in excess of 10 percent for right foot degenerative arthritis is denied.

Based on the medical evidence, the Board finds that for the period on appeal for the right foot, that an evaluation of 10 percent, but no higher, is warranted, under Diagnostic Code 5284. In that regard, the Board credits the Veteran's statements regarding the severity of his residual disabilities for the osteoarthritis for his right foot. The Veteran has consistently reported pain in the right foot, along with difficulty walking, difficulty bearing weight on standing, and limitation of motion. As noted above, DC 5284 provides a 10 percent rating for moderate disability. The regulations do not limit pain to objective or subjective pain. The Board finds that there is sufficient competent and credible evidence of pain. The Veteran is competent to report symptoms of pain as they are subject to his observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In addition, the Board notes that a compensable rating for arthritis can be awarded on the basis of X-ray findings and painful motion under 38 C.F.R. § 4.59 even without motion being compensable limited under the rating schedule, as here. VAOPGCPREC 9-98 (1998).

The Board further finds that the Veteran is not entitled to a higher rating under DC 5284 for this period because the degree of disability does not reach a moderately severe level where greater pain or other symptoms might otherwise limit the Veteran to a greater degree or cause greater functional loss. The Veteran is capable of wearing shoes, albeit only those that can be comfortably put on and off his feet.

Also, a higher evaluation of 20 percent is not warranted for degenerative arthritis unless medical evidence indicates x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010.

As such, then, the Board finds that an evaluation of 10 percent, but no higher, for the Veteran's right foot is warranted for the entire period on appeal under Diagnostic Code 5284.

Neely M. Peden

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Setter, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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