Citation Nr: 18140697 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 14-16 042 DATE: ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for a left hip disorder, is reopened. To this extent only, the claim is granted. The claim of entitlement to service connection for a left hip disorder is denied. The claim of entitlement to service connection for a right shoulder disorder is denied. The claim of entitlement to service connection for a left shoulder is denied. An initial rating in excess of 20 percent for impairment of the right thigh is denied. An initial rating in excess of 10 percent for right hip bursitis is denied. FINDINGS OF FACT 1. In a May 2003 rating decision, the Regional Office (RO) denied service connection for a left hip disorder; the Veteran did not timely initiate an appeal of that decision or submit new and material evidence within one year of notification. 2. The evidence received since the May 2003 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a left hip disorder. 3. The Veteran’s current left hip conditions, first noted many years after service and currently diagnosed as trochanteric osteoarthritic changes and calcific tendinopathy, are not related to his active service. 4. The Veteran sustained an inservice injury (abrasions) to the shoulder, but it did not result in residual shoulder disability. Moreover, bilateral degenerative changes in the shoulders were not shown in service or within a year of discharge from service and are not related to any incident of service. 5. The Veteran’s impairment of the right thigh includes degenerative arthritis and is manifested by limited abduction; there is pain but no ankylosis and no flail joint or nonunion. 6. The Veteran’s right hip bursitis is manifested by limited adduction; there is pain but no ankylosis and no flail joint or nonunion. CONCLUSIONS OF LAW 1. The May 2003 RO decision that denied service connection for a left hip disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. The criteria for reopening the claim of entitlement to service connection for a left hip disorder have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for a left hip disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). 4. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 5. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 6. For the entire period on appeal, the criteria are not met for a rating in excess of 20 percent for service-connected impairment of the right thigh. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5253 (2018). 7. For the entire period on appeal, the criteria are not met for a rating in excess of 10 percent for service-connected right thigh bursitis. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.20, 4.45, 4.59, 4.71a, DCs 5003, 5251 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1977 to May 1987. In March 2016, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were previously before the Board in May 2017. The Board discussed the prior, relevant procedural history in that decision. It will not be repeated here. New and Material Petition to Reopen Claim for Service Connection for Left Hip. It is noted that the Veteran’s initial claim for service connection for a bilateral hip disorder was denied by the RO in May 2003, and the Veteran was notified that month. The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must find that new and material evidence has been presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). See also Winters v. West, 12 Vet. App. 203 (1999). Therefore, although the RO in the current appeal has reviewed the claim on a de novo basis, the issue is as stated on the title page. Moreover, even where the RO reopens a claim and a medical examination is conducted, the Board may still decide not to reopen the claim. In such cases, the adequacy of the examination is moot, though information from the examination is not entirely irrelevant. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In detail, prior to the filing of the current claim of entitlement to service connection for a left hip disorder, the Agency of Original Jurisdiction (AOJ) previously denied a claim of service connection for such in May 2003. Specifically, that RO decision denied service connection for a bilateral hip disorder. Subsequently dated RO decisions in August 2012 and April 2014 granted service connection for right hip disorders. As to the left hip, however, the Veteran did not initiate an appeal or submit new and material evidence, and the May 2003 decision became final. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1100 (2018). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105(b)(1) (2012); 38 C.F.R. §§ 3.103(b)(1), 19.25, 20.1103 (2018). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105(a) (2012); 38 C.F.R. § 20.200 (2018). An NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ’s decision and a desire to contest the result. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. § 20.201 (2018). If a timely NOD is not filed, as is the case here, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105(c) (2012). The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 (2012) defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a) (2018). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b) (2018), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Review of the May 2003 rating decision reflects that service connection for a left hip disorder was denied in that there was no evidence of left hip problems during service and because there was no post service diagnosis of such. Notice of the decision and of the Veteran’s appellate rights was mailed to the Veteran in May 2003 with a copy to his representative. No relevant evidence was submitted within one year of the decision, nor was a NOD filed. The evidence received since the May 2003 rating decision includes a March 2017 report as provided by J.C.R., M.D. The private doctor noted that the Veteran gave a history of being injured during service in 1983 when a jeep ran him over. This accident resulted in numerous injuries, to include both hips. There was progressive pain in the right hip, followed by pain in the left hip “after a couple of years.” It was noted that X-rays showed degenerative changes in both hips. Based on the account by the Veteran of the inservice injury, it was this physician’s opinion that his left hip degenerative changes were the result of the inservice accident. The examiner noted that the left hip changes were similar to the findings in the right hip. Also added to the record was an August 2017 VA examination report. This examination was conducted in order to obtain a medical opinion regarding the etiology of the Veteran’s left hip disorder. While his findings and opinion were not in the Veteran’s favor, the March 2017 private report and the August 2017 VA report include diagnosis of a left hip disorder. No left hip disorder had previously been medically reported. As such, the medical reports relate to an unestablished fact necessary to substantiate the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board concludes that the criteria for reopening the claim of service connection for a left hip disorder have been met. Service Connection – In General Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2018). “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). A compensable (10 percent) rating for arthritis requires establishment of arthritis by X-ray findings and limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. §4.71a, Diagnostic Code (DC) 5003. When addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board’s “authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence”). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (explaining that competency has to do with whether the evidence may be considered by the trier of fact); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). As to some of the factors that go into making credibility determinations both the United States Court of Appeals for Veterans Claims (Veterans Court) and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have provided guidance. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (stating that “the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.”); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that “[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character.”). As to non-expert or lay opinions with regard to diagnoses or a relationship of a condition to service (“nexus”), whether such opinions are competent evidence depends on the question at issue and the particular facts of the case. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the Federal Circuit drew from its earlier decision in Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed Cir. 2007) to explain its holding. Id. In that earlier decision, the Federal Circuit addressed the competency of lay diagnoses, stating as follows: “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau, supra. The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno, supra. Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for a Left Hip Disorder. The service treatment records (STRs) reflect that the Veteran was treated on September 10, 1983, following an accident involving a jeep trailer. There was a slight abrasion to the skull, and his neck was slightly sore. There was an abrasion to the right shoulder. There was an abrasion to the left knee and right leg. Follow-up treatment two days later noted contusion abrasions. Upon separation examination in 1987, there was no report of left hip problems and no left hip disorder was diagnosed. Post service records are negative for report of any left hip complaints for many years. As noted above, a March 2017 report as provided by a private physician, J.C.R., M.D, noted that the Veteran gave a history of being injured during service in 1983 when a jeep ran him over. This accident resulted in numerous injuries, to include both hips. There was progressive pain in the right hip, followed by pain in the left hip “after a couple of years.” It was noted that X-rays showed degenerative changes in both hips. Based on the account by the Veteran of the inservice injury, it was this physician’s opinion that his left hip degenerative changes were the result of the inservice accident. The examiner noted that the left hip changes were similar to the findings in the right hip. VA examination was conducted in August 2017 to address the etiology of any left hip disorder found to be present. To this end, the examiner reviewed the objective evidence of record, documented the Veteran’s current complaints, and performed a thorough clinical evaluation, then offered an opinion as to the nature of the claimed disability, accompanied by rationale. Following this examination, the left hip diagnoses included trochanteric osteoarthritic changes and calcific tendinopathy. The examiner’s review of the STRs showed that he noted the inservice injury in September 1983. The examiner also noted that when the Veteran was interviewed about the incident, he explained how the accident happened. The Veteran had to avoid being literally run over and dived under the trailer. The jeep and trailer were on a loose dirt surface (not on pavement) so by ducking under the moving trailer, he took advantage of the soft soil surface and space underneath the trailer when it moved over him. As a result, he was not “run over completely” by the wheels of the jeep trailer. The side of the wheel clipped his right pelvis and right thigh and both shoulders. Hence, he only suffered abrasions with no broken bones or dislocated joints. The examiner noted that his review of the treatment record showed no abrasions to the left shoulder. He also reviewed the follow-up treatment note from two days later. The examiner further noted that the Veteran complained of advancing left hip pain for the past several years. He denied any additional left hip injury. At the time of this examination, the Veteran reported left hip pain that was constant and limited his ability to stand or walk and obtain adequate sleep. He denied locking up or tingling in the leg. The examiner acknowledged the March 2017 private physician’s opinion that supported the Veteran’s claim that his left hip trochanteric osteoarthritic changes and calcific tendinopathy were related to the inservice accident. He disagreed, however, noting the Veteran’s left hip disorders were less likely than not related to service, to include the jeep trailer incident. For rationale, the VA examiner noted that the Veteran suffered superficial injuries to the right side of the body in the documented accident in 1983. At that time and thereafter for the following 20 plus years, there was no mention of left-sided complaints in the hip. The VA examiner opined that current left hip findings were consistent with aging changes. Moreover, the Veteran’s left hip disorders were less likely than not caused by stresses on the left hip by contralateral right hip dysfunction and bilateral knee dysfunction. The Board finds that the VA 2018 report, with the opinion as summarized above, is the evidence most probative to the etiology of the Veteran's left hip condition. The opinion is based on a review of the complete medical records and examination of the Veteran. Thus, it takes into account the medical evidence in favor and against the Veteran's claim, and makes references to specific physical findings set forth throughout the medical record. This latter fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. The March 2017 private examiner’s opinion that current left hip degenerative changes resulted from the 1983 injury has been considered, but as there is no explanation provided as to the many years between the accident and actual medical report of left hip problems (over 20 plus years), the opinion is given little probative value. Moreover, it does not appear that the private examiner actually reviewed the claims file in forming his opinion. The Veteran himself has linked current left hip problems to his active duty service. He is competent to provide evidence on the onset and duration of his hip pain. The question then becomes whether such evidence is credible. As noted above, the record does no show complaints of or treatment for left hip problems until many years after service. There simply is no medical evidence that he had any left hip problems until over 20 plus years after service as there is no evidence that he sought treatment for such in the years immediately following separation from service. These facts diminish the credibility of any statements asserting that he had left hip pain since the 1983 occurred. As such, the Board finds the medical records, to include the VA examination report from August 2017 to be more probative. For the reasons stated above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a left hip disorder, to include degenerative changes. His claim must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert, supra. Service Connection for Right and Left Shoulder Disorders. It is also claimed that service connection is warranted for bilateral shoulder disorders. Primarily, it is contended that current shoulder disorders, to include degenerative changes, resulted from the 1983 injury sustained during service. As already reported above, the September 1983 accident is documented in the STRs. There was report of abrasion to the right shoulder but not the left. The separation examination is negative for complaints of, or diagnoses of any shoulder disorders. Post service VA records reflect treatment for left shoulder pain after an injury moving bricks in February 2010. Subsequently dated treatment records show continued bilateral shoulder complaints and diagnoses of severe degenerative joint disease (DJD) in the shoulders as early as 2012. VA examination was conducted in June 2016 to address the etiology of any shoulder disorders found. To this end, the examiner reviewed the objective evidence of record, documented the Veteran’s current complaints, and performed a thorough clinical evaluation, then offered an opinion as to the nature of the claimed disabilities, accompanied by rationale. Following this examination, there were diagnoses of glenohumeral joint and acromioclavicular joint osteoarthritis. It was the examiner’s opinion that the current bilateral shoulder disorders were less likely than not due to or related to military service, to include the inservice jeep-trailer accident in 1983. For rationale, it was noted that there was no residual reflected in the record as a result of the right shoulder abrasion. Moreover, the examiner noted the many years that passed after this injury and the report of further shoulder problems. It was specifically noted that the Veteran worked for many years after service without report of shoulder problems. A private report of J.C.D., M.D., dated in March 2017 reflects that the Veteran related his problems in the shoulders to the inservice jeep injury. It was further noted that “13 years prior to consult, the [Claimant] started having bilateral shoulder pain.” This was more pronounced on the left side. He had since completed at least 3 physiotherapy programs, but continued to have bilateral shoulder pain. The examiner found arthritic changes in both shoulders. He stated that “based on the account of the patient being ran [sic] over by a vehicle, with his right shoulder showing the scars, and left shoulder having to bear the load while pinned to the ground, is most likely a direct sequela from the trauma he initially sustained.” The examiner further noted that from the history gathered from the Veteran, he never had strenuous activity or further trauma after the initial injury, but had experienced progressive pain in both shoulder joints. After reviewing this collective body of evidence, the Board concludes that service connection is not warranted for the Veteran’s right or left shoulder disorders – either on a direct or presumptive basis. Although he suffered abrasions in a 1983 accident, to include to the right shoulder, the probative medical evidence is convincing that no residual condition resulted. The probative evidence does not support a finding of a nexus between current bilateral shoulder degenerative changes and the inservice injury. The evidence does not show that his currently-diagnosed left shoulder disorder began in service or is otherwise related or attributable to his military service. 38 C.F.R. § 3.303(d) (2018). While he was treated in 1983 for a right shoulder abrasion, no left shoulder disorder was diagnosed. At time of service separation in 1987, no shoulder conditions were noted. Moreover, it was many years later before the Veteran was seen for additional shoulder complaints and before shoulder DJD was reported in 2012. Although the Veteran’s private physician has provided a positive opinion in March 2017 linking current shoulder disorders to the inservice accident in 1983, he did not provide explanation as to long period of time between the 1983 injury and the initial reports of shoulder problems in approximately 2010. His opinion was based on the medical history as related by the Veteran and not on review of the claims file which includes the STRs and post service medical records which were not considered by the examiner. Of greater significance are the post-service treatment records which do not contain any diagnosis of a right or left shoulder disorder until approximately 20 plus years after service. As such, the evidence does not support a finding that the onset or inception of a right or left shoulder disorder was during his service. In the appropriate circumstance, VA may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). Moreover, the opinion of the June 2016 VA examiner, shows that the Veteran’s currently diagnosed arthritic changes in the right and left shoulder did not have their onset in service or are otherwise related or attributable to his service. And since this opinion was formed after interviewing and examining the Veteran, reviewing the evidence that includes his contentions, and is supported by a well-reasoned rationale, the Board accords it a lot of probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that, to be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, instead, must also support the conclusion with sufficient rationale and explanation). Furthermore, as the evidence fails to show that arthritis manifested to a degree of 10 percent or more within one year of the Veteran’s discharge from service, the Board finds that service connection on a presumptive basis is not warranted. As discussed above, there is no diagnosis of arthritis until 2012. Similarly, the Board also finds that the probative evidence of record does not establish continuity of symptomatology following service which is linked to his current diagnoses. The overall evidence of record, as discussed above, weighs against a finding of a bilateral shoulder disorder being associated with the Veteran’s active duty service. Without the probative evidence, even on balance, showing an association between a shoulder disorder and his active duty, service connection for a right or left shoulder disorder is unwarranted. To reiterate, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. at 435, as to the specific issue in this case, the etiology of right or left disorders falls outside the realm of common knowledge of a lay person. See Jandreau, supra. The Board finds the medical evidence of record most probative in this critical respect. For these reasons and bases, the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for a right or a left shoulder disorder. And as the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule does not apply, and this claim resultantly must be denied. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert, supra. Increased Ratings – In General VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321 (2018); see generally, 38 C.F.R. § Part 4 (2018). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2018). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). 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. See 38 C.F.R. § 4.1 (2018). Separate diagnostic codes (DC) identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. See 38 C.F.R. § 4.7 (2018). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2018). The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14 (2018). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. Id. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2018). The schedular rating criteria also provide for rating by analogy based on similar functions, anatomical location, and symptomatology. See 38 C.F.R. § 4.20 (2018) (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology); see also Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010) (when a condition is not listed in the VA disability schedule, VA may undertake rating by analogy where the disability in question is analogous in terms of the functions affected, the anatomical localization, and the symptomatology of the ailments). The rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in evaluation based on the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (o)(2) (2018). Pertinent to this case, in rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2018). Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2018). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2018); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 (2018) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion (ROM) measurements of the opposite undamaged joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. The most recent VA examination of the right hip in August 2017 is responsive to the guidance provided in Correia and Sharp, and is adequate in that regard because the examiner explained why it was not medically possible or feasible to obtain such findings in this case. A claimant is entitled to the benefit-of-the-doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. 3.102 (2018); Gilbert, supra. Ratings for Right Hip Impairment of the Thigh and Bursitis. Service connection for right hip bursitis was established upon rating decision in August 2012. A 10 percent rating, effective September 14, 2010, was assigned based on extension of the thigh being limited to 5 degrees or less (as seen upon VA examination in March 2012. DCs 5003, 5251. Upon rating decision in April 2014, service connection was established (separately) for right hip impairment. A 20 percent rating was assigned, effective September 14, 2010. This rating was based on limitation of abduction of the thigh, motion lost beyond 10 degrees, pursuant to DCs 5003, 5253. See VA examination report of January 2014. Separate evaluations may be assigned under DCs 5251 (extension), 5252 (flexion), and 5253 (abduction, adduction, or rotation) for disability of the same joint. However, the Veteran may not receive two ratings based on the same disability manifestations. See 38 C.F.R. § 4.14 (2018); Esteban v. Brown, 6 Vet. App. 259 (1994). In a May 2017 remand decision, the Veteran’s January 2016 testimony regarding his right hip conditions was reported in detail. That decision also summarized VA treatment records from 2010 and subsequently accomplished VA examination reports in February 2012, March 2012, and February 2014. This decision will not repeat those findings, but considers them in the analysis below. The claims for increased ratings for the right hip were remanded, in part, for a contemporaneous VA examination to determine the current severity of the Veteran’s right hip/thigh conditions. The examination was to be compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). As explained earlier, to be compliant with Correia, supra, ROM testing should, to the extent possible, reflect ranges of motion on active and passive motion as well as in weight-bearing and non-weight-bearing (or the examiner must explain why it is not medically possible or feasible to obtain such findings). In this case, the examiner explained why it was not medically possible to obtain the ROM findings requested. The Board has considered all potentially applicable DCs that rate the Veteran’s right hip disabilities, to determine those most appropriate or more advantageous to the Veteran in this case. Thus, the Board will analyze whether a disability rating higher than the current 10 percent and 20 percent ratings may be awarded for the service-connected right thigh/hip disorders. Consideration will be given to DC 5251 (limitation of extension) 5252 (limitation of flexion of thigh), or 5253 (impairment of the thigh, contemplating limitation of abduction). The Board finds that DC 5250 (ankylosis of the hip), which allows for disability ratings of 60, 70 and 90 percent, is not for application in this case. That is, the medical evidence of record clearly shows that the Veteran’s right hip is not ankylosed at any level. Although the Veteran’s right hip disability does manifest in some limitation of motion from pain and stiffness, it is not in a fixed position without motion at any degree or angle, nor does the Veteran contend otherwise. DCs 5254 (hip, flail joint) and 5255 (impairment of the femur) are also not for application in this case. The medical evidence of record does not show that the Veteran has flail joint, and/or fracture of the shaft or anatomical neck of the femur with nonunion, fracture of the surgical neck of femur with false joint, or malunion or nonunion of the femur. The Board also finds that providing a higher rating under DC 5014 (osteomalacia) is inappropriate because DC 5014 is rated by limitation of motion, which would constitute pyramiding as the Veteran’s disability is already rated based on limitation of motion. DC 5251 (limitation of extension the thigh) provides a 10 percent disability rating if the thigh’s extension is limited to 5 degrees. DC 5252 (limitation of flexion of the thigh) provides a 10 percent disability rating if the thigh flexion is limited to 45 degrees. A 20 percent disability if the thigh flexion is limited to 30 degrees. A 30 percent disability if the thigh flexion is limited to 20 degrees. DC 5253 (thigh impairment) provides a 10 percent disability rating if either the veteran cannot cross his legs or cannot toe-out more than 15 degrees. A 20 percent disability rating if there is a limitation of abduction with motion lost beyond 10 degrees. As requested in the Board’s May 2017 remand, VA examination of the right thigh/leg was conducted in August 2017. The examiner noted that the claims file was reviewed, and an in-person examination was conducted. At this time, the Veteran reported difficulty with standing and walking for prolonged periods of time. Although the Veteran reported that he occasionally had flare-ups, it was specifically noted that the examiner was conducted during a period of time when there was no flare-up. The examiner noted that due to complaints of pain, he was unable to test the Veteran’s right hip ROM. He did note that adduction for the right leg was limited such that the Veteran could not cross his legs. Pain was noted upon rest/non-movement. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, in the right trochanter of moderate severity. There was evidence of pain with weight-bearing. There was no objective evidence of crepitus. The Veteran used a cane for ambulation. As to the claim for an initial rating in excess of 20 percent for impairment of the thigh, the claims is denied. First, under DC 5253, the Veteran is in receipt of the maximum rating of 20 percent for limitation of abduction of motion lost beyond 10 degrees. At no point during the appeal process was thigh flexion limited to 20 degrees for an increased rating of 30 percent pursuant to DC 5252. As to the claim for an initial rating in excess of 10 percent for right hip bursitis, the Veteran is in receipt of the maximum rating of 10 percent for limitation of extension of the thigh to 5 degrees. Additional DCs are not applicable as already discussed. Increased rating for the right hip impairment and for right his bursitis are not warranted. This is so even when functional loss due to pain and other factors noted in 38 C.F.R. §§ 4.40 and 4.45 (2018), and DeLuca, supra, are considered. Clearly, the Veteran reported experiencing pain. However, following review of the available treatment records, to include the numerous VA examination reports of record (2012, 2014, and 2017), it is noted that they do not support a finding that such symptoms result in functional loss that more nearly approximates flexion of the thigh limited to 20 degrees. There is no other competent, probative evidence on this point, to include any evidence indicating that the Veteran experiences significantly greater loss of hip motion during flare-ups of pain than that shown objectively. Thus, the Board finds that the evidence of record does not show additional functional limitation due to these symptoms that is tantamount to the degree of limitation required to achieve a higher evaluation for either claim. 38 C.F.R. § 4.71a, DCS 5251, 5253. As such, higher initial ratings under the applicable DCs are not assignable. K. OSBORNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith