Citation Nr: 1329633	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  02-15 060A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 
10 percent prior to December 17, 2008; and a disability 
rating in excess of 30 percent from December 17, 2008; for a 
left hip disability.

2.  Entitlement to an initial disability rating in excess of 
10 percent prior to December 17, 2008; and a disability 
rating in excess of 30 percent from December 17, 2008; for a 
right hip disability.

3.  Entitlement to a disability rating in excess of 20 
percent for instability of the left knee.  

4.  Entitlement to a disability rating in excess of 20 
percent for instability of the right knee.  


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

A. Haddock, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1974 to June 1994.  

These matters come before the Board of Veterans' Appeals 
(Board) on appeal from July 2001 and August 2004 rating 
decisions by the Roanoke, Virginia Department of Veterans 
Affairs (VA) Regional Office (RO).  

The Veteran testified in support of his claims at hearings 
held before a member of the Board in Washington, D.C., in 
January 2006, February 2008, and December 2009; the 
Veteran's spouse also provided testimony at the January 2006 
and December 2009 Board hearings.  The transcripts of these 
hearings are associated with the record.  The Board notes 
that in a June 2013 letter, the Veteran was advised that the 
Veterans Law Judge who presided over his Board hearings was 
no longer with the Board and he was asked whether he would 
like the opportunity to have a hearing before a current 
member of the Board.  In a July 2013 response, the Veteran 
indicated that he did not want a new Board hearing and that 
he would like to have his claims decided based on the 
evidence currently of record.

In April 2010, the Board issued a decision which denied the 
Veteran's claims disability ratings in excess of 10 percent, 
prior to December 17, 2008; and ratings in excess of 30 
percent, from December 17, 2008; for left and right hip 
disabilities.  The April 2010 decision also granted the 
Veteran service connection for instability of the left and 
right knees, assigning a separate 10 percent disability 
rating for each.  The Veteran appealed the Board decision to 
the United States Court of Appeals for Veterans Claims 
(Court).  In March 2011, based on a Joint Motion for Remand 
(Joint Motion), the Court issued an Order remanding this 
case to the Board for compliance with the Joint Motion.  In 
accordance with the Joint Motion, the Board issued a 
decision in March 2012, which again denied the Veteran's 
claims for initial disability ratings in excess of 10 
percent prior to December 17, 2008; and ratings in excess of 
30 percent from December 17, 2008; for left and right hip 
disabilities.  In that same decision, the Board granted the 
Veteran's claims for increased disability ratings, of 20 
percent, for left and right knee instability and also 
granted a single 10 percent disability rating for limitation 
of adduction for his left and right hip disabilities.  

The Veteran appealed the Board's March 2012 decision to the 
United States Court of Appeals for Veterans Claims (Court).  
In March 2012, based on a Joint Motion for Remand (Joint 
Motion), the Court issued an Order again remanding this case 
to the Board for compliance with the Joint Motion.  The 
claims have now returned for appellate consideration.

The Board has not only reviewed the Veteran's physical 
claims file but also the Veteran's file on the "Virtual VA" 
system to insure a complete review of the evidence.  

Finally, the Board notes that the Veteran is in receipt of a 
combined 100 percent disability rating, effective August 24, 
2000, for all his service-connected disabilities.  


FINDINGS OF FACT

1.  Prior to February 4, 2008, the Veteran's left and right 
hip disabilities were manifested by flexion limited to, at 
worst, 90 degrees; abduction limited to, at worst, 25 
degrees; and pain on motion.  

2.  Beginning February 4, 2008, the Veteran's left and right 
hip disabilities were manifested by flexion limited to, at 
worst, 20 degrees; pain; weakness; and stiffness.

3.  The Veteran's left and right knee instability more 
nearly approximates moderate instability, with symptoms of 
buckling, giving way, and sporadic falling; but without 
objective findings of instability.   


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating in excess 
of 10 percent for a left hip disability, prior to February 
4, 2008, have not been met.  38 U.S.C.A. §§ 1155, 5103, 
5103A, 5107(b) (West 2002); 38 C.F.R. § 4.71a, Diagnostic 
Codes 5019, 5252 (2012).

2.  The criteria for a disability rating of 30 percent, but 
no higher, for a left hip disability, beginning February 4, 
2008, have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 
5107(b) (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 
5019, 5252 (2012). 

3.  The criteria for an initial disability rating in excess 
of 10 percent for a right hip disability, prior to February 
4, 2008, have not been met.  38 U.S.C.A. §§ 1155, 5103, 
5103A, 5107(b) (West 2002); 38 C.F.R. § 4.59, 4.71a, 
Diagnostic Codes 5019, 5252 (2012).

4.  The criteria for a disability rating of 30 percent, but 
no higher, for a right hip disability, beginning February 4, 
2008, have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 
5107(b) (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 
5019, 5252 (2012).

5.  The criteria for a disability rating in excess of 20 
percent for left knee instability have not been met.  38 
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (b) (West 2002); 38 
C.F.R. § 4.71a, Diagnostic Code 5257 (2012). 

6.  The criteria for a disability rating in excess of 20 
percent for right knee instability have not been met.  38 
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (b) (West 2002); 38 
C.F.R. § 4.71a, Diagnostic Code 5257 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Upon receipt of a substantially complete application for 
benefits, VA must notify the claimant what information or 
evidence is needed in order to substantiate the claim and it 
must assist the claimant by making reasonable efforts to get 
the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 
C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 
183, 187 (2002).  The notice required must be provided to 
the claimant before the initial unfavorable decision on a 
claim for VA benefits, and it must (1) inform the claimant 
about the information and evidence not of record that is 
necessary to substantiate the claim; (2) inform the claimant 
about the information and evidence that VA will seek to 
provide; (3) inform the claimant about the information and 
evidence the claimant is expected to provide; and (4) 
request or tell the claimant to provide any evidence in the 
claimant's possession that pertains to the claim.  38 
U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. 
Principi, 18 Vet. App. 112, 120 (2004). 

The Board notes that 38 C.F.R. § 3.159 was revised, 
effective May 30, 2008.  See 73 Fed. Reg. 23353 -56 (Apr. 
30, 2008).  The amendments apply to applications for 
benefits pending before VA on, or filed after, May 30, 2008.  
The amendments, among other things, removed the notice 
provision requiring VA to request the Veteran to provide any 
evidence in the Veteran's possession that pertains to the 
claim.  See 38 C.F.R. § 3.159(b)(1). 

Here, the VCAA duty to notify was satisfied by way of 
letters sent to the Veteran in September 2000, April 2003, 
April 2004, June 2005, May 2006, July 2006, October 2008, 
April 2009, June 2011, and June 2012.  These letters advised 
the Veteran of the foregoing elements of the notice 
requirements.  See Quartuccio v. Principi, 16 Vet. App. 183, 
187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 
(1993); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) 
(noting that a VCAA defect may be cured by issuance of a 
fully compliant notification followed by a re-adjudication 
of the claim).  With respect to the Dingess requirements, 
the May 2006 letter provided the Veteran with notice of what 
type of information and evidence was needed to establish a 
disability rating, as well as notice of the type of evidence 
necessary to establish an effective date.  With these 
letters, the RO effectively satisfied the notice 
requirements with respect to the issue on appeal.

In addition, the duty to assist the Veteran has also been 
satisfied in this case.  The Veteran's service treatment 
records, as well as all identified and available VA and 
private medical records pertinent to the years after 
service, are in the claims file and were reviewed by both 
the RO and the Board in connection with his claims.  
Additionally, of record are September 2000, December 2000, 
April 2001, April 2004, and December 2008 examination 
reports.  The Board notes that when VA undertakes to provide 
a VA examination or obtain a VA opinion, it must ensure that 
the examination or opinion is adequate.  Barr v. Nicholson, 
21 Vet. App. 303, 312 (2007).  The Board notes that in 
January 2001 and March 2001 statements, the Veteran asserted 
that the December 2000 VA examination of his hips was 
inadequate as the examiner did not use a goniometer to 
establish ranges of motion.  As such a new VA examination 
was performed in April 2001.  The Board further notes that 
the September 2000, April 2001, and April 2004 VA 
examination reports provide no indication that the claims 
files were reviewed in conjunction with the examination; 
however, the Board notes that the failure to perform a 
review of the claims files during a VA examination does not 
immediately render a VA examination inadequate.  Snuffer v. 
Gober, 10 Vet. App. 400 (1997).  Further, the Board notes 
that the December 2008 VA examination report indicates that 
a review of the claims files was conducted.  Additionally, 
the VA examination reports of record provide explanations of 
rationale for the opinions stated, citing the objective 
examination findings and the Veteran's subjective 
complaints.  Accordingly, the Board finds that VA's duty to 
assist with respect to obtaining a VA examination or opinion 
regarding the issue on appeal has been met.  38 C.F.R. 
§ 2.159(c)(4).  

Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the 
United States Court of Appeals for Veterans Claims (Court) 
held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who 
conducts a hearing fulfill two duties to comply with the 
regulation.  They consist of (1) the duty to fully explain 
the issues and (2) the duty to suggest the submission of 
evidence that may have been overlooked.  In this case, the 
Veteran was afforded Board hearings January 2006, February 
2008, and December 2009 by a VLJ who is no longer with the 
Board.  In this case, during the Veteran's Board hearings, 
the presiding VLJ fully explained the various issues on 
appeal and asked questions focused on the functional 
impairment of the disabilities in question.  The Veteran was 
assisted at his hearings by an accredited representative 
from Paralyzed Veterans of America and at his January 2006 
and December 2009 hearings, additional testimony was 
provided by his spouse.  The VLJ also sought to identify any 
evidence pertinent to the issues on appeal that was 
outstanding, or had been overlooked.  The Veteran did not 
identify any outstanding evidence and the Board notes that 
neither the Veteran nor his representative has asserted that 
VA failed to comply with 38 C.F.R. § 3.103(c)(2) or 
identified any prejudice in the conduct of the Board 
hearing.  As such, the Board finds that, consistent with 
Bryant, the VLJ who presided over the Veteran's Board 
hearings complied with the duties set forth in 38 C.F.R. § 
3.103(c)(2), and that any error in notice provided during 
the Veteran's hearing constitutes harmless error. 

Finally, neither the Veteran nor his representative has 
identified, and the record does not otherwise indicate, any 
additional existing evidence that is necessary for a fair 
adjudication of the claim that has not been obtained.  
Hence, no further notice or assistance to the Veteran is 
required to fulfill VA's duty to assist in the development 
of his claim.  Smith v. Gober, 14 Vet. App. 227 (2000), 
aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 
15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 
Vet. App. 183 (2002).

II.  Legal Criteria

The Board has reviewed all of the evidence in the claims 
folders.  Although the Board has an obligation to provide 
reasons and bases supporting this decision, there is no need 
to discuss, in detail, the extensive evidence of record.  
Indeed, the Federal Circuit has held that the Board must 
review the entire record, but does not have to discuss each 
piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 
(Fed. Cir. 2000).  Therefore, the Board will summarize the 
relevant evidence where appropriate, and the Board's 
analysis below will focus specifically on what the evidence 
shows, or fails to show, as to these claims.

Disability Ratings Generally

Disability evaluations are determined by the application of 
the VA's Schedule for Rating Disabilities (Rating Schedule), 
38 C.F.R. Part 4 (2012).  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 their residual 
conditions in civil occupations.  38 U.S.C.A. § 1155; 38 
C.F.R. §§ 3.321(a), 4.1 (2012).

Where there is a question as to which of two evaluations 
shall be applied, the higher evaluation will be assigned if 
the disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating will 
be assigned.  38 C.F.R. § 4.7.

When an unlisted condition is encountered it will be 
permissible to rate under a closely related disease or 
injury in which not only the functions affected, but the 
anatomical localization and symptomatology are closely 
analogous.  38 C.F.R. § 4.20.

The evaluation of the same disability under various 
diagnoses is to be avoided.  38 C.F.R. § 4.14.  38 C.F.R. § 
4.14 does not preclude the assignment of separate 
evaluations for separate and distinct symptomatology where 
none of the symptomatology justifying an evaluation under 
one diagnostic code is duplicative of or overlapping with 
the symptomatology justifying an evaluation under another 
diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 
(1994). 

The Court has held that evaluation of a service-connected 
disability involving a joint rated on limitation of motion 
requires adequate consideration of functional loss due to 
pain under 38 C.F.R. § 4.40 and functional loss due to 
weakness, fatigability, incoordination or pain on movement 
of a joint under 38 C.F.R. § 4.45.  See, in general, DeLuca 
v. Brown, 8 Vet. App. 202 (1995).

The provisions of 38 C.F.R. § 4.40 state that the 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.  
According to this regulation, it is essential that the 
examination on which ratings are based adequately portrays 
the anatomical damage, and the functional loss, with respect 
to these elements. In addition, the regulations state that 
the functional loss may be due to pain, supported by 
adequate pathology and evidenced by the visible behavior of 
the veteran undertaking the motion.  Weakness is as 
important as limitation of motion, and a part which becomes 
painful on use must be regarded as seriously disabled.  38 
C.F.R. § 4.40.

The provisions of 38 C.F.R. § 4.45 state that when 
evaluating the joints, inquiry will be directed as to 
whether there is less movement than normal, more movement 
than normal, weakened movement, excess fatigability, 
incoordination, and pain on movement.

The intent of the schedule is to recognize painful motion 
with joint or periarticular pathology as productive of 
disability.  It is the intention to recognize actually 
painful, unstable, or malaligned joints, due to healed 
injury, as entitled to at least the minimum compensable 
rating for the joint.  38 C.F.R. § 4.59.

Degenerative arthritis established by X-ray findings will be 
rated on the basis of limitation of motion under the 
appropriate diagnostic code for the specific joint involved.  
38 C.F.R. § 4.71a, Diagnostic Code 5003.

Left and Right Hip Disability Ratings

Limitation of motion of the hip is rated under Diagnostic 
Codes 5251, 5252, and 5253.  See 38 C.F.R. § 4.71a, 
Diagnostic Codes 5251, 5252, and 5253 (2012). 

Hip flexion is measured from 0 degrees to 125 degrees; 
abduction is measured from 0 degrees to 45 degrees. 38 
C.F.R. § 4.71a, Plate II. 

For limitation of extension of the thigh, where extension is 
limited to 5 degrees, a 10 percent evaluation is assigned.  
38 C.F.R. § 4.71a, Diagnostic Code 5251 (2012). 

For limitation of flexion of the thigh, where flexion is 
limited to 45 degrees, a 10 percent evaluation is assigned; 
where flexion is limited to 30 degrees, a 20 percent 
evaluation is assigned; where flexion is limited to 20 
degrees, a 30 percent evaluation is assigned; and where 
flexion is limited to 10 degrees, a 40 percent evaluation is 
assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5252 (2012). 

Diagnostic Code 5253 addresses impairment of the thigh.  A 
10 percent evaluation is assigned for limitation of rotation 
where the affected leg cannot toe-out more than 15 degrees. 
38 C.F.R. § 4.71a, Diagnostic Code 5253 (2012).  A 10 
percent evaluation is assigned for limitation of adduction 
where the legs cannot be crossed. Id.  A 20 percent 
evaluation is assigned for limitation of abduction with 
motion lost beyond 10 degrees.  Id.

Other diagnostic codes relating to the hip are Diagnostic 
Code 5250 (ankylosis), Diagnostic Code 5254 (Hip, flail 
joint), and Diagnostic Code 5255 (femur, impairment of: 
fracture/malunion).  As noted below, these conditions are 
not shown on examination and application of these diagnostic 
codes is not warranted.  38 C.F.R. § 4.71a

Left and Right Knee Disability Ratings

The Board notes that the Veteran's left and right knee 
disabilities are manifested by various symptomatology that 
has resulted in several disability ratings under various 
diagnostic codes.  Currently, the Veteran's left and right 
knee disabilities are rated under Diagnostic Codes 5010 
(arthritis due to trauma), 5259 (removal of cartilage, 
symptomatic), 5261 (limitation of extension), and 5257 
(recurrent subluxation or lateral instability).  However, 
the only manifestation of the Veteran's left and right knee 
disabilities that is currently on appeal is his left and 
right knee instability.  Therefore, the Board will only 
address Diagnostic Code 5257.  

Diagnostic Code 5257 provides ratings for impairment of the 
knee that includes recurrent subluxation or lateral 
instability.  Slight recurrent subluxation or lateral 
instability of the knee is rated as 10 percent disabling; 
moderate recurrent subluxation or lateral instability of the 
knee is rated as 20 percent disabling; and severe recurrent 
subluxation or lateral instability of the knee is rated as 
30 percent disabling.  38 C.F.R. § 4.71a 

III. Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) 
and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the 
Board has reviewed all evidence of record pertaining to the 
history of the service-connected disabilities.  The Board 
has found nothing in the historical record which would lead 
to the conclusion that the current evidence of record is not 
adequate for rating purposes.

Evaluation of Left and Right Hip Disabilities

The Veteran contends that he is entitled to an initial 
disability rating in excess of 10 percent prior to December 
17, 2008 and a disability rating in excess of 30 percent 
from December 17, 2008, for his left and right hip 
disabilities.  

The Veteran was afforded a VA examination of the bilateral 
hips in December 2000.  At that time he reported that he 
developed a hip condition in 1991 and that it had been 
bothering him since.  He reported that prolonged standing 
and walking increased the pain in both of his hips.  On 
physical examination, the Veteran's posture and gait were 
normal and he had no limitation of function on standing and 
walking.  Range of motion measurements for the hips were as 
follows: flexion to 90 degrees, bilaterally; extension to 30 
degrees, bilaterally; adduction to 15 degrees with pain, 
bilaterally; abduction to 25 degrees with pain, bilaterally; 
external rotation to 30 degrees with pain, bilaterally; and 
internal rotation to 30 degrees with pain, bilaterally.  
There was additional pain with repetitive testing, but no 
additional limitation of motion was noted following 
repetitive testing.  X-ray of the bilateral hips showed 
normal hips; there was no bone, joint, or soft tissue 
abnormality.  The examiner diagnosed chronic bursitis of 
both hips.  

The Board notes that the Veteran has asserted that the 
December 2000 VA examination was inadequate, as the examiner 
did not perform the range of motion measurements using a 
goniometer.  In order to ensure accurate measurement, 
38 C.F.R. § 4.46 states that "the use of a goniometer in the 
measurement of limitation of motion is indispensable in 
examinations conducted" by VA.  The Board finds that while 
the failure to use a goniometer does not render the entire 
examination inadequate, the range of motion measurements 
cannot be considered completely accurate, and are therefore, 
unreliable.  

The Veteran was afforded another VA examination of his hips 
in April 2001.  At that time, he reported pain, weakness, 
stiffness, swelling, inflammation, fatigue, and lack of 
endurance in his bilateral hips.  He reported significant 
limitation of walking up stairs, bike riding, and bending 
movements.  He reported the symptoms were constant and 
horrible in nature.  He reported that he took Celebrex twice 
daily, which gave somewhat good results, and also received 
physical therapy in the past without any significant impact.  
He denied any prior surgeries or prosthetic implants for his 
bilateral hip disabilities.  He reported that because of his 
bilateral hip disabilities, combined with various other 
disabilities, his daily activities were very much limited.  

On physical examination, the Veteran's posture and gait were 
normal.  There was evidence of abnormal weight bearing on 
the feet, including callosities at the medial side of both 
great toes and hallux valgus on the right more than the 
left.  The Veteran did not require any assistive devices for 
ambulation and he did not have any limitation of standing 
and walking during examination.  Examination of the hips 
revealed that both hips appeared within normal limits.  
Range of motion measurements were as follows: flexion of the 
right hip to 90 degrees, with pain; flexion of the left hip 
to 95 degrees, with pain; extension bilaterally to 20 
degrees, with pain; adduction bilaterally to 25 degrees; 
abduction of the right hip to 35 degrees, with pain; 
abduction of the left hip to 30 degrees, with pain; external 
rotation of the right hip to 40 degrees, with pain; external 
rotation of the left hip to 45 degrees, with pain; and 
internal rotation bilaterally to 30 degrees, with pain.  The 
examiner noted that the December 2000 X-rays showed no bone, 
joint, or soft tissue abnormalities.  The examiner diagnosed 
bilateral hip strain and noted that there was no localized 
tenderness or muscle spasm during examination, but range of 
motion was severely limited due to pain with active 
resistence during examination.  The examiner noted that the 
Veteran's various disabilities had effects on his usual 
occupation as a custodian which involved a lot of weight 
lifting, pushing, pulling and bending maneuvers, and as such 
the Veteran's various joint disabilities caused severe 
limitation of his occupation.  It was also noted that the 
Veteran's daily activity was moderately limited due to his 
inability to stand or drive for a long time.  

The Veteran was afforded another VA examination in April 
2004.  At that time, the Veteran reported that he had 
stiffness in his hips when walking up and down steps, 
standing, or driving.  He reported that his symptoms were 
constant and painful.  He denied any incapacitation and 
reported that he treated his hip symptoms with Ultram and 
Lidoderm.  He denied the use of any prosthetic implants.  He 
reported stiffness while walking, bending, driving, and 
sleeping.  He reported that he lost 10 hours per week from 
work.  

On physical examination, the Veteran's posture and gait were 
normal.  There was no leg length difference in the 
anterosuperior iliac spine to the medial malleolus.  
Examination of the feet revealed no signs of abnormal 
weightbearing, including calluses or breakdown.  The Veteran 
did not require the use of assistive devices, crutches, or 
braces for ambulation.  Examination of the hips revealed 
that that hips were normal in general appearance.  Range of 
motion measurements were as follows: flexion to 125 degrees; 
extension to 30 degrees; adduction to 25 degrees; abduction 
to 45 degrees; external rotation to 60 degrees; and internal 
rotation to 40 degrees.  The examiner noted that the 
Veteran's entire body was rigid, making examination 
difficult, as any movement of the joint or muscle would 
cause "cogwheel rigidity" as if he had Parkinsonism.  The 
examiner also noted that there was no issue with additional 
pain, fatigue, weakness, lack of endurance, or 
incoordination on repetitive testing.  There was also no 
ankylosing of the hip joint.  It was noted that X-ray showed 
degenerative changes in the hip.  The examiner diagnosed 
degenerative changes of the bilateral hips.  

The Veteran was afforded another VA examination in December 
2008.  At that time, the Veteran reported that he started 
having hip problems after an in-service fall.  He reported 
that he was later given a diagnosis of trochanteric bursitis 
by his private doctor at Kaiser-Permanente.  He reported 
receiving steroid injections at Kaiser, and described this 
treatment as fair in managing his symptoms.  It was noted 
that a 2001 VAMC X-ray report had revealed normal hips.  On 
physical examination, the Veteran was noted to have an 
antalgic gait and there was no evidence of abnormal weight 
bearing.  There was moderate tenderness to palpation 
directly over the greater trochanter.  Tenderness and 
guarding was noted bilaterally.  Range of motion 
measurements were as follows: flexion to 20 degrees 
bilaterally; extension to 0 degrees bilaterally; and 
abduction to 10 degrees bilaterally.  It was noted that the 
Veteran would not let the examiner complete range of motion 
testing because of trochanteric pain and he would not permit 
repetitive passive or active range of motion testing.  The 
Veteran was unable to cross his right leg over his left leg, 
or his left leg over his right leg.  He was unable to toe 
out greater than 15 degrees with either leg.  After 
examination and review of the claims files, the examiner 
diagnosed bilateral trochanteric bursitis and noted that 
such a diagnosis had no significant effects on the Veteran's 
usual occupation.  The examiner did note that the diagnosis 
had effects on Veteran's usual daily activities, including: 
moderate effects on his ability to do chores, shopping, 
exercise, and driving; and mild effects on his dressing and 
toiling activities.  

Also of record are extensive VA and private treatment 
records that show the Veteran receives regular care for 
chronic pain in multiple joints, including his bilateral 
hips.  These treatment records indicate that the Veteran has 
received treatment in the form of pain and medication 
management, physical therapy, and an injection of depomedrol 
into his left trochanteric bursa.  However, there are no 
range of motion measurements of record in the VA or private 
treatment notes showing the Veteran to have limitation of 
motion in excess of that reported at his VA examinations.  

Additionally, the Veteran testified at February 2008 and 
December 2009 Board hearings regarding his bilateral hip 
disabilities.  In February 2008, the Veteran stated that his 
hips were really tight when he walked and that, as a result, 
he was forced to shorten his steps.  He stated that he was 
told by his doctor that there's something [the bursa] on the 
bone that rubs causing irritation.  In December 2009, the 
Veteran testified regarding how his hip condition had 
worsened since he first filed his claim for service 
connection in 2000.  He stated that in 2000, he started 
having pain and tightness in the outside of his hips, and so 
he sought treatment.  He stated that his symptoms progressed 
to include stiffness and increased pain and tightness.  He 
reported that he had a cortisone shot in one of his hips, 
which provided no relief, and that he was required to take 
several breaks a night at his job as a custodian with the 
United States Postal Service.  

Based on the evidence of record, the Board finds that prior 
to February 4, 2008, disability ratings in excess of 10 
percent for both the Veteran's left and right hip 
disabilities, are not warranted.  In this regard, the Board 
notes that the evidence of record, including the April 2001 
and April 2004 VA examination reports, shows that prior to 
February 4, 2008, the Veteran had at worst, 90 degrees of 
flexion in his hips, bilaterally.  Further, while the 
Veteran has consistently complained of pain, weakness, and 
stiffness in his hips to the VA examiners and his VA and 
private treatment providers since he filed his claim for 
service connection in August 2000, the Board notes that 
these subjective complaints are encompassed in the separate 
10 percent disability ratings assigned for his right and 
left hips through February 4, 2008.  38 C.F.R. § 4.59. 

The Board has considered the Veteran's complaints of 
additional pain, weakness, and stiffness, and the objective 
findings on VA examination of additional pain, on repetitive 
testing in the hips bilaterally.  However, there is no other 
evidence showing that the Veteran has more limitation of 
motion than that found at his VA examinations, prior to 
February 4, 2008.  Thus, considering all pertinent 
disability factors, to include the DeLuca factors discussed 
above, there is no appropriate basis for assigning schedular 
ratings in excess 10 percent, for pain on motion, prior to 
February 4, 2008 for the Veteran's left and right hip 
disabilities.  

The Board has considered assigning higher disability ratings 
for the Veteran's left and right hip disabilities for the 
period prior to February 4, 2008, under any diagnostic code 
applicable to the hip.  However, upon review of the record, 
the Board finds that there is no objective evidence of 
flexion limited to 30 degrees in either hip or limitation of 
abduction causing motion lost beyond 10 degrees in either 
hip.  38 C.F.R. §§ 4.71a, Diagnostic Codes 5252, 5253.  
Additionally, the Board notes that the medical records, 
including the various VA examination reports, provide no 
indication that the Veteran suffers from ankylosis of either 
hip (Diagnostic Code 5250), hip, flail joint (Diagnostic 
Code 5254), or impairment of the femur (Diagnostic Code 
5255).  Therefore, the Board finds that higher disability 
ratings for the Veteran's left and right hip disabilities 
are not warranted for the period prior to February 4, 2008.  
38 C.F.R. § 4.71a.

The Board finds that from February 4, 2008, the date of the 
Veteran's Board hearing when he reported a worsening of the 
symptoms of his bilateral hip disabilities, the Veteran is 
entitled to 30 percent disability ratings for his left and 
right hip disabilities.  In this regard, the Board notes 
that at his February 4, 2008 Board hearing, the Veteran 
testified that the symptoms of his left and right hip 
disabilities had worsened.  Specifically, he testified that 
the tightness in both of his hips had caused him to shorten 
his steps when walking.  Based on his hearing testimony, the 
Board remanded the Veteran's claim and instructed the RO to 
afford him a new VA examination.  At his December 2008 VA 
examination, the Veteran's range of motion was severely 
limited, with flexion only to 20 degrees bilaterally.  
Further, it was noted that the Veteran was unable to 
complete range of motion testing due to the pain in his 
hips.  The December 2008 VA examination also revealed that 
the Veteran was unable to cross his right leg over his left 
leg or his left leg over his left leg.  Based on the 
objecting findings of the December 2008 VA examination, and 
the subjective complaints made at his February 4, 2008 Board 
hearing, the Board finds that 30 percent disability ratings 
are warranted for the Veteran's left and right hip 
disabilities beginning February 4, 2008.  38 C.F.R. § 4.71a, 
Diagnostic Code 5252.

The Board has considered the Veteran's complaints, and the 
findings on examination, of additional pain, weakness, and 
stiffness in the hips bilaterally.  However, there is no 
other evidence showing that the Veteran has more limitation 
of motion than that found at his VA examinations.  Thus, 
considering all pertinent disability factors, to include the 
DeLuca factors discussed above, there is no appropriate 
basis for assigning schedular ratings in excess 30 percent, 
for flexion limited to 20 degrees bilaterally, from February 
4, 2008 for the Veteran's left and right hip disabilities.  

Consideration has been given to assigning the Veteran higher 
disability ratings for his left and right hip disabilities 
from February 4, 2008.  However, the medical evidence of 
record does not show that the Veteran's left or right hip 
disabilities are manifested by limitation of flexion to 10 
degrees.  Therefore, higher disability ratings are not 
warranted at this time.  Id.

Consideration has also been given to assigning the Veteran 
higher disability ratings under other diagnostic codes 
applicable to the hips.  However, there is no medical 
evidence that the Veteran has ankylosis of the hips, hip 
flail joint, or impairment of the femur.  Therefore, higher 
disability ratings under other diagnostic codes applicable 
to the hips are not warranted at this time.  38 C.F.R. 
§ 4.71a, Diagnostic Codes 5250, 5254, 5255.

Additionally, the Board notes that the objective findings 
from the December 2008 VA examination, that the Veteran was 
unable to cross his right leg over his left leg and his left 
leg over his right leg, entitles the Veteran to separate 10 
percent disability ratings under Diagnostic Code 5253 for 
each hip.  As noted in the March 2013 Joint Motion, the 
Board improperly granted the Veteran a single 10 percent 
disability rating for these objective findings in its March 
2012 decision.  However, upon review of the record, the 
Board notes that in the March 2012 rating decision 
implementing that Board decision, the RO correctly applied 
38 C.F.R. § 4.25(b) and assigned the Veteran separate 10 
percent disability ratings for his left and right hips under 
38 C.F.R. § 4.71a, Diagnostic Code 5253.  As such, the Board 
finds that further discussion of this matter is not 
necessary.   



Evaluation of Left and Right Knee Instability

The Veteran contends that he is entitled to a higher 
disability rating for his left and right knee instability.  

The Veteran was afforded a VA examination of his right and 
left knees in September 2000.  At that time, the Veteran 
reported that he had pain and weakness in both of his knees 
that had been present for many years.  He reported that he 
had flare-ups approximately once a month, which lasted about 
three days.  He reported symptoms of pain, weakness, and 
stiffness.  He reported treatment in the form of occasional 
physical therapy and various pain medications, including 
Celexa, amitriptyline, and Flexeril.  He reported that he 
underwent a lateral meniscectomy in 1994 of his right knee, 
but he denied any prosthetic implants.  He reported that his 
bilateral knee disabilities affected his daily activities in 
that he had to reduce the amount of time he spent doing 
physical activities.  

On physical examination, the Veteran's posture and gait were 
noted to be normal.  There were no signs of abnormal weight 
bearing and he did not require the use of any assistive 
devices for ambulation.  The Veteran's pain and touch 
sensation and motor function in his bilateral lower 
extremities were within normal limits.  Examination of the 
knees revealed flexion to 90 degrees bilaterally and 
extension to 0 degrees.  It was noted that the Veteran 
refused to bend his knees past 90 degrees due to pain.  The 
examiner noted that the drawer and McMurray tests were 
negative bilaterally and there was no additional pain, 
fatigue, weakness, or incoordination on repetitive testing.  
X-ray showed degenerative osteoarthritis bilaterally.  The 
examiner diagnosed degenerative changes of the left knee and 
degenerative osteoarthritis with status post partial medial 
and lateral meniscectomy of the right knee.  

The Veteran was afforded another VA examination of his left 
knee in April 2004.  At that time the Veteran reported pain 
in his left knee and a history of a partial medial and 
lateral meniscectomy, with a subsequent diagnosis of DJD.  
He reported constant pain and stiffness, increased pain when 
walking downstairs, and that the knee would give out.  He 
reported that the pain was constant, that it made it 
difficult to work, and he tired easily while standing and 
sitting down.  He reported that he treated his knee pain 
with Lidoderm and other pain medication.  He reported that 
he was unable to bend his knees and that he could not walk, 
sit, or drive for prolonged periods of time.  He reported 
that he lost 10 hours per week from work.  

On physical examination, the Veteran's posture and gait were 
normal.  There was no leg length difference in the 
anterosuperior iliac spine to the medial malleolus.  
Examination of the feet revealed no signs of abnormal 
weightbearing, including calluses or breakdown.  The Veteran 
did not require the use of assistive devices, crutches, or 
braces for ambulation.  Examination of the knees revealed 
that the right and left knee were normal in general 
appearance and there was minimum tenderness in the knee.  
Range of motion measurements were as follows: flexion to 140 
degrees bilaterally and extension to 0 degrees bilaterally.  
The examiner noted that there was pain throughout the ranges 
of motion, bilaterally, with pain, fatigue, weakness, and 
lack of incoordination.  There was no ankylosing present in 
the knee.  There was some crepitus and tenderness present in 
both the left and right knees.  The examiner noted that the 
Veteran had normal range of motion, but pain throughout, and 
diagnosed degenerative changes of the left knee, status post 
partial medial and lateral meniscectomy.  

The Board notes that the April 2004 VA examiner indicates 
that the Veteran had a history of a partial medial and 
lateral meniscectomy to his left knee.  However, a review of 
the record shows that this procedure was actually performed 
on the Veteran's right knee, and he was awarded service 
connection for residuals of such in July 1994.  However, the 
April 2004 VA examination report contains objective findings 
for both the Veteran's left and right knees and, therefore, 
while the examiner appears to have mistakenly reported the 
Veteran's right knee disability, the examination report is 
adequate to evaluate the functional impairment caused by 
both the Veteran's right and left knee disabilities.  

The Veteran was afforded another VA examination in December 
2008.  At that time, he reported pain and decreased range of 
motion in both of his knees.  He reported that his bilateral 
knee symptoms began in the 1970s and that they had 
progressively worsened since that time.  He reported that he 
had meniscectomy of his right knee and had also been 
diagnosed with chondromalacia.  He reported that he received 
steroid injections in both of his knees from his private 
doctor at Kaiser, the last of which had been approximately 6 
months prior to his VA examination, and that the injections 
did a good job and relieving his symptoms.  On physical 
examination, the Veteran was noted to have an antalgic gait 
and there was no evidence of abnormal weight bearing.  
Examination of the knees revealed tenderness and guarding of 
movement, bilaterally.  There was no crepitation, cricks or 
snaps, grinding, instability, patellar abnormality, or 
meniscus abnormality present in either the left or right 
knee.  The Veteran was noted to have flexion to 100 degrees 
bilaterally and normal extension bilaterally.  The examiner 
noted that there was objective evidence of pain with active 
range of motion, bilaterally, but there was no additional 
pain following repetitive testing.  On X-ray the Veteran was 
noted to have bilateral, rather severe, DJD.  The examiner 
diagnosed DJD of the left and right knees and noted that 
such a diagnosis caused pain and decreased range of motion.  
The examiner also noted that the Veteran's bilateral knee 
DJD had significant effects on his usual occupation, in the 
form of increased absenteeism and also had effects on his 
usual daily activities, including: moderate effects on his 
ability to do chores, shopping, exercise, and driving; and 
mild effects on his dressing and toiling activities.  
 
Also of record are extensive VA and private treatment 
records that show the Veteran receives regular treatment for 
chronic pain in multiple joints, including his bilateral 
knees.  The VA and private treatment records note that the 
Veteran has a diagnosis of DJD of his knees, bilaterally, 
and the treatment for his knees is noted to include pain and 
medication management, a brace and cane, and steroid 
injections.  The treatment records show that the Veteran 
consistently complained throughout the course of his 
treatment for his bilateral knee disability that his knees 
would sometimes buckle and "give way," and a March 2007 
private treatment record notes that the Veteran reported 
that he fell after an episode of his knees giving way.  
However, a review of the extensive treatment notes of 
record, both VA and private, contain no objective findings 
of instability in the ligaments or tendons in either the 
left or right knee.  In fact, there are frequent notations 
of "no evidence of cruciate or collateral ligament 
instability" or "no varus/valgus instability."  The 
treatment notes of record further relate the Veteran's 
complaints of knee instability to atrophy of his quadriceps 
muscles.  

Also of record is a January 2006 statement from a Mr. M.S., 
the Veteran's supervisor at the United States Postal 
Service.  In his statement, Mr. M.S. stated that he 
observed, on numerous occasions, the Veteran's knees "give 
away underneath him" while he was walking.  Mr. M.S. stated 
that this would occur on a daily basis and sometimes it 
would seem as if the Veteran might fall.  

Additionally, the Veteran testified at January 2006, 
February 2008, and December 2009 Board hearings regarding 
his bilateral knee disabilities.  In January 2006, the 
Veteran stated that he had constant pain in his knees, that 
they would buckle when he walked, and that he had fallen 
because of his knee problems.  He also stated that he began 
using knee braces in 2001 or 2002.  In February 2008, the 
Veteran stated that when he walked, his knees would give way 
and he would fall down sometimes, he further stated that he 
had fallen numerous times while at work.  He stated that he 
had been told by his doctor that his bilateral knee 
disabilities would only be resolved with bilateral total 
knee replacements, but that he was not yet a candidate for 
such procedures due to his age.  In December 2009, the 
Veteran reported that he wore knee braces off and on during 
his time in active service, and that he was prescribed 
braces by his VA doctor sometime between 2000 and 2003 as 
his knees had been "giving out."

Based on the evidence above, the Board finds that disability 
ratings in excess of 20 percent for the Veteran's left or 
right knee instability are not warranted.  In this regard, 
the Board acknowledges that the Veteran has consistently 
complained that his left and right knee disabilities cause 
his knees to buckle and "give way" sometimes and that he had 
fallen on numerous occasions as a result, a statement from 
the Veteran's supervisor corroborates the Veteran's 
assertions that he suffers from frequent symptoms of his 
knees "giving way," and the Veteran has reported that he 
requires the use of knee braces.  However, the Board notes 
that the medical evidence of record, including the various 
VA examinations and the Veteran's VA and private treatment 
records, contain no objective findings of instability.  In 
fact, the Veteran's private treatment records note on 
several occasions that there was no evidence of instability, 
the September 2000 and April 2004 examination reports 
contain no complaints or findings of instability, and the 
December 2008 VA examination report specifically noted that 
there was no evidence of instability in the Veteran's left 
or right knee.  Further, while the Veteran has reported that 
he has fallen on numerous occasions as a result of his 
bilateral knee instability, the medical evidence of record 
documents only one such fall in a March 2007 treatment 
record when the Veteran reported to his private doctor hat 
he fell after his knees gave way.  Additionally, while the 
Veteran's supervisor stated that he witnessed the Veteran's 
knees give way on numerous occasions, almost every day, he 
specifically stated that sometimes it would seem as if the 
Veteran might fall; he did not report that he ever saw the 
Veteran actually fall.  Therefore, the Board finds that the 
lack of objective medical evidence of instability and the 
limited treatment notes documenting actual falls as a result 
of his bilateral knee instability, suggests that the 
Veteran's bilateral knee instability is not severe in 
nature, but rather that it is moderate.  As such, disability 
ratings in excess of 20 percent for the Veteran's left and 
right knee instability are not warranted at this time.  
38 C.F.R. § 4.71a, Diagnostic Code 5257.

Consideration has also been given to assigning staged 
ratings for the Veteran's left and right knee instability.  
However, at not time during the period in question has the 
Veteran's left and right knee instability warranted higher 
schedular ratings.  See Fenderson v. West, 12 Vet. App. 119 
(1999).

Extra-Schedular Consideration

The Board has also considered whether this case should be 
referred to the Director of the VA Compensation and Pension 
Service for extra-schedular consideration under 38 C.F.R. 
§ 3.321(b)(1).  

The Court has held that the threshold factor for extra-
schedular consideration is a finding on part of the RO or 
the Board that the evidence presents such an exceptional 
disability picture that the available schedular evaluations 
for the service-connected disabilities at issue are 
inadequate.  Therefore, initially, there must be a 
comparison between the level of severity and the 
symptomatology of the disability with the established 
criteria provided in the rating schedule for the 
disabilities.  If the criteria reasonable describe the 
claimant's disability level and symptomatology, then the 
disability picture is contemplated by the rating schedule, 
the assigned evaluations are therefore adequate, and no 
referral for extra-schedular consideration is require.  Thun 
v. Peake, 22 Vet. App. 111 (2008).

In the case at hand, the record reflects that the 
manifestations of the Veteran bilateral hip and bilateral 
knee disabilities are contemplated by the schedular 
criteria.  There is no indication from the evidence of 
record that the Veteran has required frequent 
hospitalizations or has even received frequent emergency 
treatment for any of his service-connected disabilities 
discussed herein.  Additionally, while the record indicates 
that the Veteran's employment is somewhat impacted by his 
bilateral hip and bilateral knee disabilities, in that some 
of his duties and abilities are limited, there is no 
indication that he is unable to work as a result of his 
service-connected disabilities.  In fact, the record 
reflects that the Veteran works as a custodian for the 
United States Postal Service.  In sum, there is no 
indication that the average industrial impairment from the 
Veteran's combined disability picture would be in excess of 
that contemplated by the assigned ratings.  Accordingly, the 
Board has determined that referral of this case for extra-
schedular consideration is not in order.  

ORDER

The Veteran's left hip disability does not warrant an 
initial disability rating in excess of 10 percent prior to 
February 4, 2008; to this extent, the benefit sought on 
appeal is denied.  

The Veteran's left hip disability warrants a disability 
rating of 30 percent, but no higher, beginning February 4, 
2008; to this extent, the benefit sought on appeal is 
granted, subject to the criteria applicable to the payment 
of monetary benefits.  

The Veteran's right hip disability does not warrant an 
initial disability rating in excess of 10 percent prior to 
February 4, 2008; to this extent, the benefit sought on 
appeal is denied.  

The Veteran's right hip disability warrants a disability 
rating of 30 percent, but no higher, beginning February 4, 
2008; to this extent, the benefit sought on appeal is 
granted, subject to the criteria applicable to the payment 
of monetary benefits.  

Entitlement to a disability rating in excess of 20 percent 
for left knee instability is denied.  

Entitlement to a disability rating in excess of 20 percent 
for right knee instability is denied.  


____________________________________________
M. TENNER
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs