Citation Nr: 1329466 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 07-06 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for a left hip disability to December 18, 2008. 2. Entitlement to a disability rating in excess of 40 percent for a left hip disability from December 18, 2008 to January 31, 2013. 3. Entitlement to a disability rating in excess of 70 percent for a left hip disability from February 1, 2013 to the present. 4. Entitlement to a disability rating in excess of 30 percent for a right hip disability prior to December 18, 2008. 5. Entitlement to a disability rating in excess of 40 percent for a right hip disability from December 18, 2008 to January 31, 2013. 6. Entitlement to a disability rating in excess of 70 percent for a right hip disability from February 1, 2013 to the present. 7. Entitlement to a disability rating in excess of 40 percent for a low back disability. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1976 to August 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, continued 30 percent evaluations for avascular necrosis of the left and right femoral heads and a 40 percent evaluation for excessive lordosis with pain and limitation of motion of the lumbar spine. The Board remanded the Veteran's claims in July 2008, November 2010, and October 2012. In August 2007, the Veteran presented sworn testimony during a Travel Board hearing in Columbia, South Carolina, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In January 2009 and May 2013 rating decisions, the Appeals Management Center (AMC) increased the Veteran's disability ratings for his bilateral hip disabilities to 40 percent each effective December 18, 2008 and 70 percent each effective February 1, 2013. A combined schedular rating of 100 percent became effective as of February 1, 2013. A total disability evaluation based on individual unemployability had also been effect since January 1999. Nevertheless, because the AMC did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed an NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Since the Veteran perfected his appeal from the November 2006 continuance of 30 percent disability ratings for the bilateral hips, the Board will address whether he was entitled to disability ratings higher than 30 percent prior to December 18, 2008, disability ratings higher than 40 percent from December 18, 2008 to January 31, 2013, and disability ratings higher than 70 percent from February 1, 2013 to the present. Therefore, the issues on appeal have been rephrased as shown above. The Veteran is not prejudiced by such recharacterization of the issues. FINDINGS OF FACT 1. Prior to December 18, 2008, the Veteran's service- connected left hip disability was manifested by marked hip disability, flexion limited to 55 degrees and essentially no extension or internal or external rotation; however, there was no evidence of ankylosis, flail joint, or fracture of the shaft, anatomical head, or surgical head of the femur. 2. From December 18, 2008 to January 31, 2013, the Veteran's service-connected left hip disability was manifested by flexion limited to 10 degrees, abduction limited to 5 degrees, and no extension, adduction, internal rotation, or external rotation; however, there was no evidence of ankylosis, flail joint, or fracture of the shaft, anatomical head, or surgical head of the femur. 3. From February 1, 2013 to the present, the Veteran's service-connected left hip disability is manifested by intermediate ankylosis with no evidence of unfavorable ankylosis or flail joint. 4. Prior to December 18, 2008, the Veteran's service- connected right hip disability was manifested by marked hip disability, flexion limited to 55 degrees and essentially no extension or internal or external rotation; however, there was no evidence of ankylosis, flail joint, or fracture of the shaft, anatomical head, or surgical head of the femur. 5. From December 18, 2008 to January 31, 2013, the Veteran's service-connected right hip disability was manifested by flexion limited to 10 degrees, abduction limited to 5 degrees, and no extension, adduction, internal rotation, or external rotation; however, there was no evidence of ankylosis, flail joint, or fracture of the shaft, anatomical head, or surgical head of the femur. 6. From February 1, 2013 to the present, the Veteran's service-connected right hip disability is manifested by intermediate ankylosis with no evidence of unfavorable ankylosis or flail joint. 7. Even when considering his complaints of pain, pain on motion, and functional impairment, the Veteran's service connected low back disability did not result in unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome at any point during the period on appeal. CONCLUSIONS OF LAW 1. Prior to December 18, 2008, the criteria for a disability rating in excess of 30 percent for a service- connected left hip disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5255 (2012). 2. From December 18, 2008 to January 31, 2013, the criteria for a disability rating in excess of 40 percent for a service-connected left hip disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Codes 5003-5252 (2012). 3. From February 1, 2013, the criteria for a disability rating in excess of 70 percent for a service-connected left hip disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Codes 5003-5250 (2012). 4. Prior to December 18, 2008, the criteria for a disability rating in excess of 30 percent for a service- connected right hip disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5255 (2012). 5. From December 18, 2008 to January 31, 2013, the criteria for a disability rating in excess of 40 percent for a service-connected right hip disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Codes 5003-5252 (2012). 6. From February 1, 2013, the criteria for a disability rating in excess of 70 percent for a service-connected right hip disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Codes 5003-5250 (2012). 7. The criteria for a disability rating in excess of 40 percent for a service-connected low back disability have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5292 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED NEXT PAGE) I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in September 2006 of the criteria for establishing an increased rating for his service-connected bilateral hip and low back disabilities, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in November 2006. Nothing more was required. VA's duty to assist has also been satisfied. The Veteran's service treatment records, VA treatment records, records from the Social Security Administration (SSA), and VA examination reports are in the claims file. Identified private treatment records have been obtained to the extent possible. No outstanding evidence has been identified that has not otherwise been obtained. The Veteran was most recently provided a VA examination for his bilateral hips and low back in February 2013. The examiner obtained a thorough history, including reviewing the claims file, and provided detailed a physical examination. Thus, the Board finds that the February 2013 examination is adequate for determining the disability rating for the Veteran's service-connected bilateral hip and low back disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). There is no evidence indicating that there has been a material change in the severity of the Veteran's service- connected left hip, right hip, or low back disabilities since he was last examined. 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. A new VA examination is not necessary at this time. Some discussion of the Veteran's August 2007 personal hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issues on appeal were identified. Information was also elicited from the Veteran concerning his contentions regarding his bilateral hip and low back symptoms. Notably, the Veteran's testimony, in part, triggered the Board's decision to remand the matter to obtain an updated VA examination in July 2008. The Board remanded the Veteran's claims of entitlement to increased ratings for his bilateral hip and low back disabilities to the AMC in July 2008, November 2010, and October 2012 for further evidentiary development, including obtaining updated VA treatment records, private treatment and SSA records, and providing the Veteran with new VA examinations. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC obtained updated VA treatment records and SSA records. Additionally, a January 2013 letter from the AMC asked the Veteran to identify any outstanding relevant private treatment records and provide a release of information for any such records. The Veteran did not respond to this letter. Finally, the Veteran was provided new VA examinations in December 2008 and February 2013. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claims Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). A. Bilateral Hips The Veteran's left and right hip disabilities are evaluated as 30 percent disabling each prior to December 18, 2008 under Diagnostic Code 5255, 40 percent disabling each from December 18, 2008 to January 31, 2013 under Diagnostic Codes 5003-5252, and 70 percent disabling each from February 1, 2013 to the present under Diagnostic Codes 5003-5250. He seeks higher ratings for the entire period on appeal. Under Diagnostic Code 5255, a 30 percent evaluation is assigned for malunion of the femur with marked knee or hip disability. A 60 percent evaluation is assigned for fracture of the surgical neck of the femur with false joint or impairment of the femur with nonunion, without loose motion and weight-bearing preserved with the aid of a brace. An 80 percent evaluation is assigned for fracture of the shaft or anatomical neck of the femur with nonunion and loose motion (spiral or oblique fracture). 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2012). Under 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. 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 Diagnostic Code 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, Diagnostic Code 5003 (2012). Diagnostic Codes 5251, 5252, and 5253 provide the criteria for rating limitation of motion of the hip. For VA compensation purposes, normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71a, Plate II (2012). Only Diagnostic Code 5252 provides an evaluation of 30 percent or greater for limitation of motion. Under Diagnostic Code 5252, a 30 percent evaluation is assigned for flexion limited to 20 degrees. A 40 percent evaluation is assigned for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2012). Finally, under Diagnostic Code 5250, a 60 percent evaluation is assigned for favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees and slight adduction or abduction. A 70 percent evaluation is assigned for intermediate ankylosis of the hip. A 90 percent evaluation is assigned for unfavorable or extremely unfavorable ankylosis of the hip with the foot not reaching the ground and crutches necessitated. 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 . Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id. ; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 . Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59 (2012). The Veteran was first examined for his bilateral hip disabilities in conjunction with his instant claim in November 2006. At that time, he complained of severe constant pain that worsened with activity and interfered with his sleep and most of his life. He denied any definitive flare ups of pain as his severe pain was constant. He used bilateral forearm-based crutches for ambulation, but denied any injections, surgery, or formal physical therapy. The Veteran was distally neurovascularly intact to his bilateral lower extremities, had range of motion of the hips from 55 degrees of flexion to 0 degrees of extension, and had essentially no extension or internal or external rotation of either hip. The examiner specifically noted that the Veteran's range of motion was not further limited by weakness, fatigue, or pain upon repetition. X-rays from June 2003 were observed to have shown severe bilateral arthrosis, Ficat stage IV avascular necrosis bilaterally with complete effacement of the joint space, flattening and cystic changes of his femoral head, and cystic and arthritic changes of the acetabulum, and slight limb length discrepancy. He also noted that the x- rays were three years old and likely did not fully demonstrate the severity of the Veteran's bilateral hip disease. He diagnosed the Veteran with bilateral severe femoral head avascular necrosis (Ficat stage IV). The Veteran was next examined in December 2008. At that time, he complained of bilateral hip pain, rated as 10 out of 10, that was aggravated with walking, standing, and any hip movement. He denied any flare ups as his severe pain was constant. He also reported locking and a feeling of instability in the hips, standing limited to one minute without crutches and five minutes with crutches, and sleep severely disrupted by pain. The examiner noted that he had been unemployed since 2001 due to his hips and was severely impaired in performing virtually all activities of daily living due to pain and limited range of motion of the hips. The examiner observed that the Veteran had bilateral greater trochanteric tenderness on palpation, severely affected ambulation, unsteadiness, and apparent excruciating pain throughout the examination. He recorded range of motion measurements of flexion to 10 degrees bilaterally with severe pain throughout and abduction to 5 degrees bilaterally with pain throughout. Neither was additionally limited due to pain or fatigue on repeated testing. Extension, adduction, internal rotation, or external rotation were not possible due to excruciating pain. X-rays taken earlier that month showed severe degenerative changes of the bilateral acetabuli, femoral heads, and greater trochanters and bilateral sclerosis the femoral heads. The Veteran was most recently examined in February 2013. He again complained of difficulty with ambulation due to pain. He also reported needing to use bilateral canes for ambulation and being limited to walking approximately 10 feet without his canes and 100 feet with his canes. The examiner observed antalgic gait, localized tenderness or pain and palpation, and that the Veteran had great difficulty getting up from a sitting position. He recorded range of motion measurements of 0 degrees of flexion with pain at 5 degrees and 0 degrees of extension with pain at 5 degrees bilaterally. Abduction was lost beyond 10 degrees, adduction was limited such that the Veteran could not cross his legs, and rotation was limited such that he could not toe-out more than 15 degrees bilaterally. The Veteran was unable to perform three repeated range of motion tests and had functional loss or impairment of the hip and thigh. Muscle strength was 3 out of 5 on hip flexion, abduction, and extension. He also had intermediate ankylosis, between favorable and unfavorable, bilaterally. A leg length discrepancy with the left leg 1 cm shorter than the right leg was recorded as well. The examiner diagnosed the Veteran with bilateral avascular necrosis and concluded that his hip disability would affect his employability as he would have great difficulty with all movement of his hips, including flexion, extension, abduction, and adduction. VA treatment records address the Veteran's bilateral avascular necrosis and complaints of bilateral hip pain, difficulty walking, and decreased range of motion of the hips. These records are generally consistent with the VA examiners' findings. Notably, a September 2012 VA treatment record noted decreased range of motion of the hips, but did not provide measurements. Upon review of all of the medical and lay evidence of record, the Board concludes that it does not establish that either of the Veteran's service-connected bilateral hip disabilities warrants more than a 30 percent disability rating prior to September 18, 2008, more than a 40 percent disability rating from September 18, 2008 to January 31, 2013, or more than a 70 percent disability rating from February 1, 2013 to the present. Prior to September 18, 2008, the Veteran's bilateral hip disability did not result in fracture of the surgical head of the femur with false joint or fracture of the shaft or anatomical head of the femur to warrant an increased rating under his assigned diagnostic code for that period (Diagnostic Code 5255). Such was simply not demonstrated. Flexion of both hips was to 55 degrees, which is well-shy of the criteria to support a higher rating under Diagnostic Code 5255. There is also no evidence of ankylosis of the hip or flail joint to warrant a rating in excess of 30 percent under any other diagnostic code relating to the hip and thigh. With regard to establishing loss of function due to pain, there is no indication that the Veteran's associated pain caused functional loss warranting a higher (40 percent) rating under the Diagnostic Codes for limitation of motion of the hip. The highest rating available is 10 percent for limitation of extension (Diagnostic Code 5251) and 20 percent for limitation of abduction (Diagnostic Code 5253). The functional factors specified in DeLuca are not applicable where the highest rating has been granted for limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The extent of his actual limitation of motion during this period did not even entitle him a 10 percent rating for loss flexion (DC 5252), even considering pain and stiffness on motion. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206. The VA examination clearly took the Veteran's complaints of pain and other functional loss into account when calculating his range of motion. From September 18, 2008 to January 31, 2013, the Veteran is currently in receipt of the maximum schedular rating for limitation of flexion of the thigh (40 percent). He thereby cannot receive a higher rating under his currently assigned diagnostic code (Diagnostic Code 5003-5252). See Johnston v. Brown, 10 Vet. App. 80 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). There is also no evidence of fracture of the surgical head of the femur with false joint, fracture of the shaft or anatomical head of the femur, ankylosis of the hip, or flail joint to warrant a rating in excess of 40 percent under any other diagnostic code relating to the hip and thigh. Finally, from February 1, 2013 to the present, there is no evidence of unfavorable ankylosis or extremely unfavorable ankylosis of the hip with the foot not touching the ground and crutches necessitated. Although the Veteran used bilateral forearm crutches/canes constantly and experiences a leg length discrepancy, he was able to walk up to 10 feet without them. More importantly the examiner specifically stated that his ankylosis of the hips was intermediate, not unfavorable. There is also no evidence of flail joint to allow an increased rating under the only other diagnostic code relating to the hip and thigh that provides for a rating in excess of 70 percent. Consideration has been to above referenced finding that the Veteran's left leg is 1 cm. short than his right leg. Under Diagnostic Code 5275, shortening of the lower extremity is rated from 10 percent to 60 percent at intervals of 10 percent, depending on the length of the shorter extremity. The minimum 10 percent rating is assigned when there is shortening between 3.2 cms. and 5.1 cms.. Notwithstanding the question of whether a separate rating could be assigned for the shortening of leg with the other ratings for fracture, evidence would not support the assignment of a compensable rating. The claims file includes statements and hearing testimony from the Veteran and statements from his wife, reiterating his complaints of hip pain, difficulty ambulating, and physical limitations. These complaints are consistent with those reported to the VA examiners and VA providers. Indeed, the Veteran is competent to report symptoms of his hip disability and his wife is competent to report what she observes. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). They are also deemed credible in their reports of symptoms/complaints and their effect on his activities. They are not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected bilateral hip disabilities has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints and his wife's lay observations of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). As discussed in detail above, the Board has reviewed the remaining diagnostic codes relating to hip and thigh disabilities and finds that they are either not applicable or do not allow for evaluations in excess of those already granted. As such, increased ratings cannot be assigned for either hip at any time throughout the appeals period under Diagnostic Codes 5250 to 5255. 38 C.F.R. § 4.71a, Diagnostic Codes 5250-5255 (2012). Additionally, there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 30 percent, 40 percent, and 70 percent disability ratings throughout the appeal period. As such, assignment of additional staged ratings is not warranted. See Hart, supra. In reaching the above-stated conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to increased ratings, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). B. Lumbar Spine The Veteran's low back disability is currently evaluated as 40 percent disabling. He seeks a higher rating. Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Under the current General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012). For VA compensation purposes, normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2012). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The Veteran was first examined in conjunction with his instant low back claim in October 2006. At that time, he complained of increasing pain in terms of frequency, intensity, and duration. He described the pain as constant and severe, rated as 9 out of 10, and radiating to his hips. He indicated that his pain occurred every day and lasted all day. He reported flare ups of pain that he rated as 10 out of 10 that were caused by sitting for more than 6 minutes. The examiner observed mild paravertebral muscle spasm and tenderness, antalgic gait with crutches, and negative straight leg raises. He recorded range of motion measurements of flexion from 0 to 42 degrees with pain, no extension, right lateral flexion from 0 to 5 degrees, left lateral flexion from 0 to 10 degrees, and rotation from 0 to 20 degrees bilaterally with pain. His range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use. Motor testing, left sensory testing, and deep tendon reflexes were normal. Sensation was decreased in the stocking configuration on the right lower extremity. X-rays showed mild scoliosis, lumbar straightening, and degenerative changes. The examiner diagnosed the Veteran with degenerative joint disease, scoliosis, and excessive lordosis of the lumbar spine and concluded that his low back disability resulted in difficulty with activities of daily living, including bathing, dressing, and recreational weight-bearing activities. The Veteran was next examined for his low back in December 2008. At that time, he complained of intermittent lumbosacral pain, he rated as 7 out of 10, that was aggravated with any back movement and weather changes and did not radiate or affect his ambulation. He reported one flare up of pain per year, lasting two days, during which he claims he is incapacitated. However, he also stated that he has not required bed rest, including physician-prescribed, for his back pain in the past year to qualify as an incapacitating episode for VA purposes. The examiner observed diffuse lumbosacral tenderness to palpation, mild right paraspinous muscle spasm, antalgic gait, and no radiculopathic symptoms or sensory problems. He recorded range of motion measurements of flexion to 35 degrees without pain and 45 degrees with pain, extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 40 degrees, and bilateral rotation to 40 degrees, with pain at the end of all the movements. His ranges of motion were not additionally limited due to pain or fatigue following repetitive use. The examiner diagnosed the Veteran with degenerative joint disease, scoliosis, and excessive lordosis of the lumbar spine and noted that he had difficulty putting on shoes and using stairs due to his back pain. The Veteran was most recently examined in February 2013. At that time, he complained of difficulty with flexion and needing to hold something for stability when bending to pick things up. He denied any radiculopathy, bowel or bladder incontinence, and flare ups. Range of motion measurements was15 degrees of forward flexion, 10 degrees of extension, 15 degrees of lateral flexion bilaterally, and 10 degrees of lateral rotation bilaterally, all without objective evidence of painful motion. The Veteran was able to perform repetitive use testing with no additional limitation of motion, but did experience less movement than normal, weakened movement, incoordination, instability of station, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. The examiner did not observe any localized tenderness or pain on palpation, guarding or muscle spasm, or any neurological abnormalities. He also noted that the Veteran did not have intervertebral disc syndrome or incapacitating episodes. He diagnosed the Veteran with degenerative joint disease of the lumbar spine and concluded that his limited range of motion impacted his ability to work. In addition to the VA examination reports, the medical evidence of record includes VA treatment records for the low back which are consistent with the VA examination findings. Notably, a July 2009 VA treatment record indicates that the Veteran's chronic low back pain was managed with a back brace. An August 2009 VA treatment record noted that the Veteran received a new back brace at that time. In addition to the medical evidence, the Veteran has submitted lay statements from his wife, as well as personal statements and hearing testimony. This lay evidence corroborates the Veteran's complaints and functional limitations as noted by the VA examiners. Notably, the Veteran testified at his August 2007 Board hearing that he had never been prescribed bed rest by a physician. Based on the medical and lay evidence of record, the Board finds that the Veteran does not meet the criteria for a disability rating in excess of 40 percent. It is reiterated that the General Rating Formula used to assign this evaluation applies with or without symptoms such as pain. DeLuca, Mitchell, and associated regulations further do not apply because this evaluation is the maximum allowable for limitation of motion of the thoracolumbar spine. See Johnston v. Brown, 10 Vet. App. 80 (1997). There is also no evidence of unfavorable ankylosis of any part of or the entire spine to warrant an increased rating of 50 or 100 percent. Notably, although the Veteran's lumbar spine motion was limited on each of the VA examinations, he had motion and there was no indication that the lumbar spine was ankylosed. As such, a disability rating in excess of 40 percent based on limitation of motion or ankylosis under the General Rating Formula for Diseases and Injuries of the Spine cannot be assigned at any point during the period on appeal. Turning to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board notes that there is no indication in the medical evidence of record that the Veteran has intervertebral disc syndrome or ahs experienced any incapacitating episodes as defined in VA regulations. Although the Veteran reported flare ups of pain to the VA examiners, he denied any incapacitating episodes to each of the examiners. VA treatment records are also negative for any notations of physician-prescribed bed rest to qualify as an incapacitating episode for rating purposes. Further, the Veteran specifically indicated at his August 2007 that a physician had never prescribed bed rest for his low back disability. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2012). Thus, an increased rating cannot be assigned under these criteria at any point during the appeals period. The Board also notes that, according to Note (1), any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, must be evaluated separately under the appropriate diagnostic code. There is no evidence of any radiculopathy, bowel or bladder impairment, or other neurologic abnormalities to warrant separate evaluations. As noted above, the VA examiners specifically found that the Veteran did not have any radiculopathy or bowel or bladder impairment. Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 40 percent disability rating throughout the appeal period. As such, assignment of staged ratings is not warranted. See Hart, supra. Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 40 percent for a low back disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz, supra. C. Extraschedular Considerations The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. With regard to the Veteran's service-connected bilateral hip and low back disabilities, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned 30 percent, 40 percent, and 70 percent disability ratings contemplate his complaints of pain, limitation of motion, and ankylosis. 38 C.F.R. §§ 4.40 and 4.45 adequately contemplate any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of the joint. Further, even if the Veteran's arthritis did not result in compensable limited motion, 38 C.F.R. § 4.59 allows for the minimum compensable evaluation for his painful motion. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-connected bilateral hip and low back disabilities present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). Thus, referral of any of these issues to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. (CONTINUED NEXT PAGE) ORDER Entitlement to a disability rating in excess of 30 percent prior to December 18, 2008 for a left hip disability is denied. Entitlement to a disability rating in excess of 40 percent from December 18, 2008 to January 31, 2013 for a left hip disability is denied. Entitlement to a disability rating in excess of 70 percent from February 1, 2013 to the present for a left hip disability is denied. Entitlement to a disability rating in excess of 30 percent prior to December 18, 2008 for a right hip disability is denied. Entitlement to a disability rating in excess of 40 percent from December 18, 2008 to January 31, 2013 for a right hip disability is denied. Entitlement to a disability rating in excess of 70 percent from February 1, 2013 to the present for a right hip disability is denied. Entitlement to a disability rating in excess of 40 percent for a low back disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs