Citation Nr: 18144138 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 16-26 832 DATE: October 24, 2018 ORDER Entitlement to an initial 10 percent rating for right hip degenerative joint disease (DJD), with painful motion, from October 30, 2002, is granted. Entitlement to a 100 percent rating for right hip disability, status post total hip arthroplasty, from August 2, 2007 to October 31, 2008, is granted. Entitlement to a 50 percent rating for right hip disability, status post total hip arthroplasty, from November 1, 2008 to April 28, 2011, is granted. Entitlement to a 30 percent rating for right hip disability, status post total hip arthroplasty, from April 29, 2011 is granted. Entitlement to a 30 percent rating for right hip disability, status post total hip arthroplasty, from April 1, 2014, is dismissed. REMANDED Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left hip disability is remanded. Entitlement to a rating in excess of 30 percent for right knee disability, status post total knee arthroplasty, is remanded. Entitlement to a rating in excess of 30 percent for left knee disability, status post total knee arthroplasty, is remanded. Entitlement to a compensable rating for surgical scars is remanded. FINDINGS OF FACT 1. In a February 2018 brief, prior to the promulgation of a decision in the appeal, the Veteran’s attorney requested a withdrawal of his appeal of his claim for an increased rating for his right hip disability from April 1, 2014. 2. Providing the Veteran the greater benefit, his right hip disability was caused by his right knee disability. A baseline severity of his right hip disability is therefore removed. 3. The Veteran’s right hip DJD with objective painful motion, did not include loss of flexion to 30 degrees or less, limitation of abduction lost beyond 10 degrees, inability to cross his legs, inability to toe out, or extension limited to 5 degrees. 4. The Veteran underwent right total hip arthroplasty on August 2, 2007. He was discharged August 6, 2007. With application of a 1-month period of convalescent total rating (38 C.F.R. § 4.30), and a 1-year period commencing after the convalescent period (38 C.F.R. § 4.71a, DC 5054), the Veteran warrants a 100 percent rating from August 2, 2007 to October 31, 2008. 5. From November 1, 2008 to April 28, 2011, the Veteran’s right hip disability had less than moderately severe residuals of weakness, pain or limitation of motion. During this period, he had “excellent, pain-free” range of motion, the Veteran’s report of “just a little twinge of pain” that “rarely bothers him.” The Board will not reduce the 50 percent rating the RO provided for this period (with restoration of the “baseline” 10 percent). 6. From April 29, 2011, the Veteran’s right hip disability had moderately severe residuals of weakness, pain or limitation of motion with increased pain, flare-ups, loss of extension (November 2011 examination), and inability to cross his legs. He did not have markedly severe residuals as his flexion remained to 75 degrees or greater, and he maintained abduction greater than 10 degrees, and the ability to toe-out more than 15 degrees. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of a claim for an increased rating for a right hip disability, from April 1, 2014, have been met. 38 U.S.C. § § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for an initial 10 percent rating, and no greater, for a right hip DJD with painful motion are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5003-5251. 3. The criteria for a 100 percent rating for right hip disability, status post total hip arthoplasty, from August 2, 2007 to October 31, 2008, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.30, 4.71a, Diagnostic Code 5054. 4. The criteria for entitlement to a 50 percent rating for right hip, status post total hip arthroplasty, from November 1, 2008 to April 28, 2011 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.30, 4.71a, Diagnostic Code 5054. 5. The criteria for an increased 50 percent rating for right hip, status post total hip arthroplasty, from April 29, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.30, 4.71a, Diagnostic Code 5054. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Air Force from September 1972 to September 1980, and from May 1984 to February 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2013 (right hip), and March 2016 (remaining) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The April 2013 rating decision granted entitlement to service connection for right hip DJD. The rating decision provided an initial noncompensable rating from October 30, 2010, and a 20 percent rating from April 29, 2011. The noncompensable and 20 percent ratings were provided after subtraction of a 10 percent “baseline” severity. The Veteran has appealed this finding of a baseline 10 percent severity as well, which will be addressed in the increased ratings section below. An April 2016 rating decision provided increased 90 percent rating for his right hip disability from August 2, 2007 to September 30, 2008, and an increased 40 percent rating from October 1, 2008 to April 28, 2011. The 90 percent and 40 percent ratings also contemplate subtraction of the “baseline” 10 percent rating. Thus, the Veteran had four staged ratings on appeal: noncompensable from October 30, 2003, 90 percent from August 2, 2007, 40 percent from October 1, 2008, and 20 percent from April 29, 2011. The April 2016 rating decision also granted entitlement to total disability based on unemployability from April 1, 2014. Entitlement to TDIU prior to this date is not on appeal, as April 1, 2014 is the last day of the Veteran’s prior employment, and the February 2018 attorney’s brief indicated that this satisfied their claim of entitlement to TDIU. The Board notes that the February 2018 attorney’s brief addition stated that the Veteran did not wish to pursue “a higher evaluation for the right hip during any other time periods where a 100 percent disabling evaluation is in place and not under separate appeal.” The most recent code sheet in the Veteran’s file showed that he was in receipt of periods of 100 percent ratings for convalescence from August 24, 2004 to November 30, 2004, from June 11, 2007 to July 31, 2007, and from August 2, 2007 to September 30, 2008. However, given that these periods were limited to months, and are cushioned by the evaluations currently on appeal, the Board is not going to specifically withdraw the claims of entitlement to higher ratings for his right hip disability during these periods on appeal. Additionally, the August 2, 2007 to September 30, 2008 which is listed as 100 percent on the code sheet (July 2017), is specifically under appeal according to the attorney’s brief, as the desire to remove the “baseline” 10 percent and its impact on the 90 percent rating during total hip arthroplasty are cited in the argument section. APPEALS WITHDRAWAL An appellant or an appellant’s accredited representative may withdraw an appeal in writing or on the record at a hearing on appeal at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. When an appellant does so, the withdrawal effectively creates a situation where there no longer exists any allegation of error of fact or law. Consequently, in such an instance, the Board does not have jurisdiction to review the appeal, and the appropriate action by the Board is dismissal of the appeal. 38 U.S.C. §§ 7104, 7105(d). In the present case, the Veteran has withdrawn the appeal as to the issue of entitlement to an increased rating for his right hip disability from April 1, 2014. On his attorney’s February 2018 withdrawal statement, the attorney noted that the Veteran “did not wish to pursue the matter of further entitlement for the right hip from April 1, 2014 to current as he is already 100% total and permanent from that date.” As such, there remain no allegations of errors of fact or law for appellate consideration with regards to this issue. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed. This withdrawal is permissible under the Board’s rules of practice. See 38 C.F.R. § 20.204. Given the attorney’s clear intent to withdraw his appeal, further action by the Board in this matter would not be appropriate. 38 U.S.C. § 7105. Increased Rating The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. 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. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating 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). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Initially, the Board notes that in Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016) CAVC held that to be adequate a VA examination of the joints must, wherever possible, 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 measurements of the opposite undamaged joint. Here, the VA examinations were provided prior to 2016 and do not include such criteria. Although, according to Correia, these examinations are therefore not adequate, it is not possible to provide the Veteran with an updated examination which could provide adequate joint testing that would be applicable to the claim on appeal because the joint was replaced in August 2007. The Diagnostic Code which addresses hip prostheses does not provide ratings based on specific range of motion, but on aggregate symptoms post-implantation. As such, the Board must provide ratings prior to August 2, 2007 based on the available medical and lay evidence of record. Normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. The terms “moderately severe” and “markedly severe” as used under Diagnostic Code 5054 are not defined in the Schedule. Rather than applying a mechanical formula to determine when symptomatology is “moderately severe” or “markedly severe,” the Board must evaluate all of the evidence to ensure an “equitable and just” decision. 38 C.F.R. § 4.6. 1. Entitlement to an initial compensable rating for right hip degenerative joint disease (DJD), with painful motion, from October 30, 2003 to August 1, 2007. Initially, the Board will address the Veteran’s claim to remove the “baseline” 10 percent severity of his right hip, prior to aggravation by his service-connected right knee. The Board grants this request. The April 2013 rating decision which granted entitlement to service connection for a right hip disability, provided the grant on the basis that his right hip disability was aggravated by his service-connected right knee disability. In order to grant service connection on the basis of aggravation, VA is required to cite medical evidence of the baseline severity of the nonservice-connected disability (here: the right hip), prior to aggravation by the service connected disability (here: the right knee). A secondary service-connection grant based on causation (that the right knee disability caused the right hip disability) would not address aggravation. The 10 percent “baseline” severity was found based on evidence of painful motion and limited range of motion of the right hip with a diagnosis of arthritis, under Diagnostic Code 5003 (degenerative arthritis). The Board notes that at the time of the April 2013 rating decision granting entitlement to service connection for a right hip disability, the record contained positive nexus opinions related to both secondary aggravation of the right hip and secondary causation of the right hip, by the service-connected right knee. The opinions were provided by medical experts after examination of the Veteran. The VA examiner’s opinion used to grant secondary aggravation service-connection included a review of the record, examination and interview of the Veteran, and citations to studies. The March 2010 positive nexus opinion based upon secondary causation was provided by the Veteran’s treating orthopedist. Although the treating orthopedist did not cite studies, his expertise is sufficient that the Board here will find the opinions to be in equipoise. As such the greater benefit is provided to the Veteran that his right hip disability was caused by his service-connected right knee disability, and with this the Board removes the baseline 10 percent severity of his right hip disability. The Veteran’s initial 10 percent rating for his right hip DJD was provided under Diagnostic Code (DC) 5003. See 38 C.F.R. § 4.71a, DC 5003. Under DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Id. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion; the limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The applicable Diagnostic Codes for limitation of motion of the hip are 38 C.F.R. § 4.71a, DCs 5251, 5252 and 5253. A 10 percent disability rating is warranted where extension of the thigh is limited to 5 degrees (DC 5251); or where flexion is limited to 45 degrees (DC 5252). 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned where flexion is limited to 30 degrees; a 30 percent disability rating is assigned where flexion is limited to 20 degrees; and a 40 percent disability rating is assigned where flexion is limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. A 10 percent disability rating is also warranted for limitation of rotation of the thigh if the affected leg cannot toe-out more than 15 degrees; a 10 percent rating is warranted where adduction is limited such that legs cannot be crossed; and a 20 percent rating is assigned for limitation of abduction of the thigh with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Diagnostic Code 5255 outlines the following rating criteria: an 80 percent rating will be assigned for impairment of femur, fracture of shaft or anatomical neck, with nonunion, with loose motion (spiral or oblique fracture); a 60 percent rating will be assigned for impairment of femur with nonunion, without loose motion, weight bearing preserved with aid of brace, or for fracture of surgical neck of the femur with false joint; a 30 percent rating will be assigned for malunion of the femur with marked knee or hip disability; a 20 percent rating will be assigned for malunion of the femur with moderate knee or hip disability; and a 10 percent rating will be assigned for malunion of the femur with slight knee or hip disability. See 38 C.F.R. § 4.71a, DC 5255. The Board has considered the applicability of other diagnostic codes. Disabilities of the hips and thighs are set forth in Diagnostic Codes 5250 through 5255. Diagnostic Code 5250 is not applicable in the instant case because there has been no medical record indicating ankylosis of the right hip. Diagnostic Code 5254 is not for application because there has been no medical evidence showing that the Veteran has a flail hip joint. The following evidence is relevant to the Veteran’s claim for a rating in excess of 10 percent for right hip DJD from October 30, 2003 to August 1, 2007: A June 2001 VA treatment record noted complaints of minimal hip stiffness, with good painless passive ranges of motion in both hips. X-rays showed maintained hip joint space with minimal spurring. A January 2003 Gulf Coast Orthopaedic Specialists (Gulf Coast) record noted the Veteran denied any “significant hip pain,” and he had a “good range of motion with some minimal groin discomfort upon maximal internal rotation.” An August 2003 Gulf Coast record included physical examination of the right hip revealing “full range of motion but with groin pain at the extremes of rotation and with flexion past 110 degrees.” X-rays showed a little narrowing of the cartilage space on the right side and a little early flattening of the femoral head consistent with early osteoarthritis. In January 2004, the Veteran was afforded a VA examination. He complained of having right hip problems for the past 15 years, with pani in the anterior aspect. He stated that it did not ache sometimes, and caused sharp pain other times. He denied stiffness, giving way, swelling, or popping. Examination of the hips revealed flexion to 125, extension to 30, adduction to 25, and abduction to 40 degrees. He had external rotation to 55 and internal rotation to 30 degrees, all bilateral. He had tenderness to palpation of the anterior aspect of the right hip near the head of the femur and had mild grinding with flexion on the right. He had normal muscle strength. X-rays showed a normal right hip. He was assessed with probable right hip bursitis without evidence of arthritic change. In February 2004, the Veteran reported to Gulf Coast that he had “jammed” his right hip stepping off a ledge. His range of motion was only “minimally” reduced with “a little groin pain” with extremes of internal rotation and with wide abduction. An April 2004 Gulf Coast record noted the Veteran had undergone right total knee arthroplasty (TKA) in January 2003. Upon returning to work found that the level of activity caused him to be symptomatic in both knees as well as the right hip. He was “currently being treated for mild to moderate osteoarthritis of the left knee and right hip.” The Veteran continued to have problems with his right knee and in June 2005 he returned to Gulf Coast. A liner exchange was discussed. He also complained of mild groin pain when ambulatory, which was associated with his right hip. On examination the right hip moved through “full pain-free range of motion without any groin pain.” X-rays of the Veteran’s right hip were taken and compared with x-rays from February 2004. “As before, changes of osteoarthritis [were] evidence, with some thinning of the cartilage space and hypertrophic osteophyte formation around the femoral head.” A July 2005 Sacred Heart Hospital record, where the Veteran was seen for complaints of left knee pain, included a notation of “full painless range of motion of the hips bilaterally.” By July 2006, the Veteran’s right hip “flexed well but he had significant groin pain with internal and external rotation. Leg lengths grossly equal.” X-rays showed moderate arthritis in the right hip. He was noted to be “likely a hip replacement candidate in the next few years.” A November 2006 Gulf Coast record included the Veteran’s complaint of increasing pain in the right anterior thigh and groin. He had right hip flexion to “only about 95 degrees, limited by pain in the groin and anterior thigh with rotation.” X-rays showed definite progression of his osteoarthritis, he had gone from very thin cartilage space to no cartilage space in the right hip. In January 2007, the Veteran was seen for complaints of hip and knee pain. His right knee continued to be painful with a lot of standing and walking and he had anterior thigh pain which the orthopedist thought was more likely related to his hip. He had a right limp. His right hip had flexion to only about 90 degrees before it was limited by pain in the anterior thigh and groin. X-rays showed “pretty far advanced osteoarthritis involving his right hip.” His right knee had a slight varus tilt to the tibial base plate and a very thin lucent line beneath the base plate. The orthopedist noted that they would need to do something “very soon” about his right knee, possibly a liner exchange or a total revision. He was also “going to be a candidate at some point for right total hip arthroplasty.” A January 2007 VA rheumatology consultation noted the Veteran had pending right hip arthroplasty. He was noted to have full passive range of motion of his hips, except for decreased internal rotation of the right hip. This was not recorded in terms of degrees of motion. A May 2007 record from an unknown source included the Veteran’s report of significant right hip and knee pain. On June 11, 2007, the Veteran underwent a liner exchange in his right knee due to impending failure of the right total knee prosthesis, secondary to varus stress with polyethylene wear. A July 2007 VA primary care record noted that the Veteran was scheduled for a right total hip replacement that week and that he had a “broad-based antalgic gait.” Record from the Veteran’s August 2007 right hip replacement include an evaluation of his hip just prior to surgery. On physical exam, his right lower extremity with complaints of groin and buttock pain with no other significant complaints. The right hip flexed to only 90 degrees before it was limited by pain in the anterior thigh and groin. There was no obvious ligamentous instability or pain on palpation. His leg lengths were noted to appear normal. The Veteran’s attorney has argued that the Veteran’s right hip warrants a rating in excess of 10 percent for the period prior to August 2, 2007 as evidenced by his need for a total hip replacement at that time. Additionally, the ongoing private and VA treatment records included the Veteran’s complaint of pain, which started as intermittent in 2001 and increased to severe by 2007. The Board notes that the 10 percent rating for the period prior to August 2, 2007 is provided based on x-ray evidence of arthritis combined with objective evidence of painful motion and loss of motion under DC 5003. DC 5003 does not provide increased ratings based on the severity of the Veteran’s pain. During this period, the evidence of record did not show that the Veteran met any criteria for a higher rating under the DCs which address disabilities of the hip and thigh. The evidence did not show flexion limited to 45 degrees (it showed flexion limited to 90 degrees); it did not show extension limited to 5 degrees; and there was no indication of ankylosis. The record did not that the Veteran had groin pain at “extremes” of rotation. Under DC 5253 for impairment of the thigh, a rating greater than 10 percent based on limitation of motion required limitation of abduction beyond 10 degrees. The only notation related to his abduction is the January 2004 VA examination which showed abduction limited to 40 degrees. The Board notes that the January 2004 examination is inadequate by current standards, as the examiner did not provide information based on the potential additional limitation of motion caused by flare-ups of pain and repeated use over time. Again, as the hip was replaced in 2007, remanding for additional examination would not provide greater detail related to his hip prior to replacement. A retrospective examination would also be limited to the same information provided in this decision. Although the Veteran’s ongoing statements to care providers, and to the 2004 examiner, included complaints of increasing pain, there are no lay statements which would indicate his hip abduction was limited to 10 degrees during this period on appeal. The 2004 examination included the Veteran’s statement that he was able to get in and out of his work vehicle, although his hip “bothered” him doing so. Even assuming that during a flare-up of pain the Veteran’s hip flexion was further limited, the Board would not be able to find that the evidence shows it would be limited by an additional 60 degrees (as a 20 percent rating requires flexion limited to 30 degrees). Indeed, during this period on appeal, the Veteran was noted to have full range of motion of the hip on several occasions. The preponderance of the evidence is against finding that the Veteran’s right hip DJD warranted a rating in excess of 10 percent prior to August 2, 2007. 2. Entitlement to rating in excess of 90 percent for a right hip disability, status post total hip arthroplasty, from August 2, 2007 to September 30, 2008. With removal of the 10 percent baseline severity of the Veteran’s right hip disability (described above), the Veteran’s rating from August 2, 2007 to September 30, 2008 is increased to 100 percent. The 100 percent rating is provided under DC 5054 which provides a 100 percent rating for prosthetic replacement of the head of the femur or of the acetabulum for one (1) year following implantation of prosthesis. Note (1): The 100 percent rating for 1 year following implantation of prosthesis will commence after initial grant of the 1-month rating assigned under 38 C.F.R. § 4.30 following hospital discharge. The Veteran was discharged August 6, 2007. His one-month convalescent would have begun August 2, 2007 and continued for a period of one month “from the first day of the month following such hospital discharge.” The first day of the month following hospital discharge was October 1, 2007. The convalescence period of one month would then be from October 1 to 31, 2007. The one-year period of prosthesis 100 percent would then commence November 1, 2007 and should have ended October 31, 2008. As such, the 100 percent rating for prosthesis implantation now correctly runs from August 2, 2007 to October 31, 2008. 3. Entitlement to a rating in excess of 40 percent rating for right hip, status post total hip arthroplasty, from November 1, 2008 to April 28, 2011. The Veteran was afforded a 40 percent rating for his right hip, status post total hip arthroplasty following his temporary 100 percent rating. This is based upon the RO’s evaluation of 50 percent for moderately severe residuals of weakness, pain, or limitation of motion following implantation of a prosthesis after deducting 10 percent (the baseline severity). The Board has removed the baseline severity in this case, and as such, the claim is now entitlement to a rating in excess of 50 percent from November 1, 2008 to April 28, 2011. Based on a review of the evidence, the Board does not find that a further increased rating is warranted. Under DC 5054 after one year following implantation of prosthesis (in which a 100 percent rating is granted), a 30 percent minimum rating is provided. A 50 percent rating is warranted where there are moderately severe residuals of weakness, pain, or limitation of motion; a 70 percent rating is warranted where there are markedly severe residual weakness, pain or limitation of motion; and a 90 percent rating is warranted where there is painful motion or weakness such as to require the use of crutches. Again, the normal range of motion of the hip is from 0 to 125 degrees of flexion, 0 to 30 degrees of extension, 0 to 45 degrees of abduction, 0 to 25 degrees of adduction, 0 to 60 degrees for external rotation, and 0 to 40 degrees for internal rotation. See 38 C.F.R. § 4.71, Plate II. The terms “moderately severe” and “markedly severe” as used under Diagnostic Code 5054 are not defined in the Schedule. Rather than applying a mechanical formula to determine when symptomatology is “moderately severe” or “markedly severe,” the Board must evaluate all of the evidence to ensure an “equitable and just” decision. 38 C.F.R. § 4.6. Following his August 2, 2007 total right hip arthoplasty the Veteran was in physical therapy. A December 2007 record noted he sat with his right hip slightly unloaded. He transitioned well and walked with a slightly guarded non-antalgic gait. A November 2009 Andrews Orthopedic and Sports Medicine Center record noted the Veteran had a new route as a postal carrier, and was not on his feet as much. He reported “that he gets just a little twinge of pain in the right groin, but this rarely bothers him and he was not terribly concerned about it.” On physical examination, the right hip had “excellent, pain-free” range of motion. X-rays showed no problems with his implants. Given the findings of “excellent, pain-free” range of motion, the Veteran’s report of “just a little twinge of pain” that “rarely bothers him,” and the limited records available for this period, the Board finds that a rating in excess of 50 percent is not warranted. A 70 percent rating requires a finding of markedly severe residual weakness, pain or limitation of motion. The “little twinge of pain” and “excellent” range of motion do not meet the standard of “markedly severe” pain or limitation of motion. The evidence of record does not more nearly approximates the criteria for a higher rating; therefore, a rating in excess of 50 percent is not warranted. 4. Entitlement to a rating in excess of 20 percent for right hip, status post total hip arthroplasty, from April 29, 2011. The April 2013 rating decision which provided an initial grant of service connection for a right hip disability, provided the staged 20 percent rating effective April 29, 2011. The April 2016 rating decision that provided increased staged ratings for the right hip did not alter the 20 percent rating assigned from April 29, 2011. The April 2013 rating decision provided the 20 percent rating based on the April 29, 2011 VA examination findings warranting the minimum rating for the right hip after hip replacement, 30 percent, minus the baseline 10 percent severity. The Board removes the baseline 10 percent severity, and the Veteran’s rating beginning April 29, 2011 is increased to the minimum 30 percent rating. The Veteran has argued his right hip warrants a rating in excess of 30 percent. On April 29, 2011, the Veteran was afforded a VA examination. He reported right hip symptoms roughly 6 months after his right knee was replaced. He reported progressive symptoms since onset, “until surgery, then improved.” He reported moderate (level 4- 6 out of 10) pain. He denied stiffness and swelling, but reported weakness. He used a single prong cane. His right hip disability did not affect his activities of daily living. He described his flare-ups as “increased pain with weather change or increased activity.” On evaluation, he had a normal gait. The examination report is strange in that it provides the range of motion after three repetitions, whereas most examination reports provide an initial range of motion and then a range of motion after repetitive testing. He had flexion to 90 degrees, extension to 25 degrees, external rotation to 35 degrees, and internal rotation to 15 degrees. The examiner noted that loss of function during a flare-up could not be determined without resorting to mere speculation, and that he did not have loss of function with repeated use on testing. He did not have deformity, malalignment, tenderness, edema, redness, spasms, guarding of movement, weakness, atrophy, or instability during evaluation. In November 2011, the examiner noted “claimed right hip disability. Mild functional limitation.” The Veteran reported flare ups of pain at 8-9/10, aggravated by prolonged standing and walking. His gait was listed as “normal.” He had flexion to 85 degrees with objective painful motion. His extension was limited to 0 degrees with objective pain, and his adduction was limited such that he could not cross his legs. His abduction was not lost beyond 10 degrees, and his rotation was not so limited that he could not toe-out more than 15 degrees. There was no change after repeat testing. His right hip muscle strength was limited to 4/5 (active movement against some resistance). He did not have leg length discrepancy at that time. He occasionally used a cane. His right hip made it difficult to stand for prolonged periods of time (At least 2 hours) when sorting mail and walking to and from business establishments delivering mail. A March 2012 treatment record from treating orthopedist Dr.R.S. noted the Veteran had “right hip full range of motion without pain and well-healed incision.” In March 2013, the Veteran was again afforded a VA examination. The Veteran reported that his hip condition made it difficult for him to stand for prolonged periods of time (at least 2 hours) when sorting out mail and walking to and from business establishments while delivering mail, though he used a truck as a means of transportation. Examination included reported flare ups of pain at 8 to 9 out of 10, lasting until pain medication took effect, and aggravated by prolonged standing and walking. He had hip flexion to 85, extension to zero with pain at zero, and his abduction was not lost beyond 10 degrees. His adduction was limited such that he could not cross his legs. His rotation was not limited such that he could not toe-out more than 15 degrees. His range of motion did not change after repeat testing. He had full muscle strength in his right hip, without ankylosis, malunion, nonunion, or flail hip joint. He had leg length discrepancy of 1 cm (right shorter than left). He was noted to have had total right hip replacement with “intermediate degrees of residual weakness, pain and/or limitation of motion.” It was noted his scars were not painful or unstable or greater than 39 square cm. The functional impact of his right hip condition was “pain aggravated by prolonged sitting, standing or walking.” The examiner noted that his chiropractor noted his leg length discrepancy. He “currently puts more weight on the right leg because of recent status post left hip replacement in 2012,” uses a cane at work, and walking but with breaks after 15 minutes. A July 2013 treatment record noted the Veteran had a non-antalgic gait. His right hip had “no pain with log roll, internal or external rotation.” Although the Veteran has withdrawn his claim of entitlement to an increased rating beyond April 1, 2014, the March 2015 VA examination can provide additional insight into the severity of his right hip, status post replacement. During the March 2015 VA examination, the Veteran reported ongoing decreased range of motion, chronic pain, and difficulty walking related to his hip conditions (both). He ambulated with a cane, but was very limited on distance. He reported flare-ups of functioning described as sharp pain, difficulty walking, and weakness which resulted in “severe” difficulties walking or standing up, and difficulty sitting for long periods of time. The Board notes that the Veteran’s difficulties related to walking, standing, sitting, etc. are a result of bilateral hip, bilateral knee, foot and ankle disabilities. He is also service connected for a low back disability with bilateral radiculopathy. His range of motion included flexion to 75 degrees, extension to 15 degrees, abduction to 30 degrees, adduction to 15 degrees, external rotation to 35 degrees, and internal rotation to 30 degrees. His adduction was limited such that he could not cross his legs. The range of motion contributed to his difficulty walking, squatting, and standing up. He had objective pain in all motions (flexions, extension, adduction, etc.) He had objective pain with weightbearing and he had crepitus. There was no additional loss of motion with repeated testing. The examiner noted that the Veteran was examined immediately after repetitive use over time and that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited his functional ability over time. His additional functional loss was described as flexion to 70 degrees, extension to 15 degrees, abduction to 30 degrees, external rotation to 35 degrees, internal rotation to 30 degrees, and adduction limited to 15 degrees with the inability to cross his legs. The examination was performed during a flare-up, which he noted happened once a week on average. The examiner described the additional loss due to a flare-up as resulting in the same loss of motion as above. He had 4/5 strength testing throughout flexion, extension, and abduction of his right hip. He did not have muscle atrophy. He did not have malunion or nonunion of a joint, flail hip, or leg length discrepancy. The scar was not noted to be painful or unstable. The Board finds that an increased 50 percent rating is warranted from April 29, 2011. The Veteran’s pain appeared to have progressed from 2011 to 2013, and again further progressed at some point between 2013 and his 2015 examination. He had loss of 80 degrees of motion of his hip from the April 2011 examination. Although his internal rotation improved by between 2011 and 2015, and his extension improved from 2013 to 2015, his flexion decreased overall and during the 2013 and 2015 examinations it was noted that his adduction was limited such that he could not cross his legs. The Board finds that these findings more nearly approximate the 50 percent rating based on moderately severe residuals of weakness, pain or limitation of motion. The Board does not find that a rating in excess of 50 percent is warranted, as the evidence does not more nearly approximate a 70 percent rating for markedly severe residual weakness, pain or limitation of motion. The Veteran’s flexion remains to 75 degrees, at worst. Although he had no extension in during the 2013 examination, he had 25 and 15 degrees of extension in the 2011 and 2015 examinations, respectively. His abduction was never limited to 10 degrees, and his rotation was never limited such that he could not toe-out 15 degrees. The Veteran described his pain as moderate during the April 2011 examination, but as severe (and severe during flare-ups) in his subsequent examinations. However, overall, the Board finds that the evidence more nearly approximates the 50 percent rating for moderately severe residuals. 5. Additional Considerations The Board has considered additional separate compensable ratings for leg length discrepancy and surgical scars, but finds that they are not warranted. DC 5275 provides a 10 percent rating for shortening of the lower extremity by 1.25 to 2 inches. The Veteran’s right leg was 1 cm shorter than his left leg, and therefore, does not meet the criteria for a separate compensable rating. Additionally, the Veteran’s right hip surgery scar has been described as deep, linear, non-painful, and stable throughout the claims file. It also did not meet measurement requirements for a compensable rating. REASONS FOR REMAND 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left hip disability is remanded, and increased ratings for the Veteran’s bilateral knees and surgical scars. A June 2015 rating decision provided a noncompensable rating for surgical scars of the knees and right hip, continued the 30 percent ratings for the Veteran’s knee disabilities (bilateral), and found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a left hip disability. A March 2016 rating decision continued the same decisions. In June 2016, the Veteran submitted a timely NOD to the June 2015 rating decision related to the issues of increased knee ratings and to reopen his left hip claim. In March 2017, the Veteran submitted a timely NOD to the March 2016 rating decision for the increased scar rating. The March 2017 NOD additionally sought to appeal the issues of increased ratings for his knees and to reopen his left hip claim. A statement of the case has not been issued regarding the Veteran’s claims. Accordingly, the Board is required to remand this issue to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the statement of the case, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The matters are REMANDED for the following action: Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to increased ratings for surgical scars, right knee disability, left knee disability, and to reopen a claim of entitlement to service connection for a left hip disability. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel