Citation Nr: 20007809 Decision Date: 01/31/20 Archive Date: 01/29/20 DOCKET NO. 14-28 134 DATE: January 31, 2020 ORDER A rating in excess of 20 percent prior to April 8, 2011, and in excess of 10 percent thereafter, for a right knee disability is denied. A rating in excess of 20 percent for a lumbar spine disability is denied. A rating in excess of 20 percent for residuals of a right femur fracture with hip disability prior to September 5, 2019 is denied. A rating of 30 percent for residuals of a right femur fracture with hip disability is granted, from September 5, 2019, forward, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to April 8, 2011, the Veteran’s right knee disability did not result in ankylosis; recurrent subluxation or lateral instability; dislocated or removed meniscus causing locking, pain and effusion in to the joint; flexion functionally limited to 15 degrees or less; extension functionally limited to 10 degrees or more; an impairment of the tibia and fibula; or genu recurvatum. 2. Since April 8, 2011, the Veteran’s right knee disability has not been shown to result in ankylosis; recurrent subluxation or lateral instability; dislocated or removed meniscus causing locking, pain and effusion in to the joint; flexion functionally limited to 30 degrees; extension functionally limited to 10 degrees or more; an impairment of the tibia and fibula; or genu recurvatum. 3. The Veteran’s lumbar disability was not shown to result in forward flexion functionally limited to 15 degrees or less; ankylosis of the spine has not been shown; and incapacitating episodes, requiring prescribed bedrest, having a total duration of at least one week during a 12-month period are not shown. 4. From September 5, 2019, forward, the Veteran’s right hip disability has manifested itself with malunion of the femur with marked hip disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to April 8, 2011, and in excess of 10 percent thereafter, for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5256-5263. 2. The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5237. 3. The criteria for a rating of 30 percent for residuals of a right femur fracture with hip disability have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5255. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1990 to September 1990 and from February 1991 to March 1995. In October 2017, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A complete transcript of the hearing is of record. In March 2018, the Board remanded the Veteran’s claims for additional development which has since been completed. Increased Ratings 1. A rating in excess of 20 percent prior to April 8, 2011, and in excess of 10 percent thereafter, for a right knee disability is denied. On March 21, 2011, the Veteran filed an increased rating for his right knee disability, which was initially rated under Diagnostic Code 5257-5258. A May 2011 rating decision decreased the Veteran’s rating for his right knee disability, from 20 percent to 10 percent, effective April 8, 2011, the date of a VA examination. An April 2015 rating decision code sheet shows that the regional office changed the classification of Veteran’s currently assigned 10 percent rating for his right knee disability to Diagnostic Code 5260-5024. A March 2018 Board decision remanded for a new VA examination. After a new right knee VA examination, a September 2019 supplemental statement of the case (SSOC) found that the Veteran was not entitled to increased ratings. Therefore, the Board must consider whether a rating in excess of 20 percent is warranted before April 8, 2011, and a rating in excess of 10 percent, thereafter. The Board notes that the March 2018 Board decision discussed the Veteran’s decreased rating and found that it did not violate the Veteran’s procedural safeguards, and thus, will not be discussed further within this decision. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate 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, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5256 evaluates ankylosis of the knee. The record contains no evidence of knee ankylosis. As such, this Diagnostic Code is not applicable. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee. The record contains no evidence and the Veteran has denied recurrent subluxation or lateral instability of the right knee. As such, this Diagnostic Code is not applicable. Diagnostic Code 5262 evaluates impairment of the tibia and fibula. The record contains no evidence of an impairment of the tibia and fibula. As such, this Diagnostic Code is not applicable. Diagnostic Code 5263 evaluates genu recurvatum. The record contains no evidence of genu recurvatum. As such, this Diagnostic Code is not applicable. Diagnostic Code 5258 evaluates semilunar cartilage, which is synonymous with the meniscus. A 20 percent rating is assigned for a meniscus that is dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 evaluates removal of the meniscus. A 10 percent rating is assigned for removal of the meniscus. Under Diagnostic Codes 5260 and 5261 (limitation of knee flexion and knee extension respectively), a noncompensable rating may be assigned where either knee flexion is limited to 60 degrees or knee extension is limited to 5 degrees. A compensable (i.e. at least 10 percent) rating is assigned for either flexion limited to 45 degrees or extension limited to 10 degrees. A 20 percent rating is assigned for either flexion limited to 30 degrees or extension limited to 15 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. The Veteran was afforded a VA examination for his right knee disability in April 2011. The examiner noted that the Veteran experienced no right knee pain at rest. Additionally, he had no symptoms of swelling, locking, catching, or instability. The examiner noted that the Veteran would occasionally experience some giving way in the right knee secondary to pain, and he reported that the right knee was a little stiff in the morning. The Veteran ambulated with a normal gait and could walk on his toes and heels. The examiner noted that there was no effusion. On examination, the Veteran demonstrated range of motion in his right knee from 0 to 135 degrees, which was unchanged with three repetitions. He was noted to have patellofemoral crepitus, which causes pain. The examiner reported that the knee was stable and had a negative McMurray test. The Veteran was afforded a VA examination in June 2016. The examiner noted that the Veteran’s right knee still bothered him, although he denied having sought any treatment since the April 2011 examination. The examiner noted that he did not use a knee brace, and swam for exercise, which seemed to help his knee. The Veteran reported flare-ups, which decreased his range of motion. He also reported having functional loss due to decreased range of motion and increased pain. On examination, the Veteran showed flexion to 120 degrees and extension to 0 degrees, with pain on flexion. The examiner noted that there was evidence of pain on weight bearing and evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time or during a flare-up, but noted that pain, weakness, fatigability, or incoordination significantly limited functional ability under both circumstances. The examiner was unable to describe in terms of range of motion, but noted that the Veteran reported a reduced range of motion. The Veteran showed full strength in flexion and extension on muscle strength testing and the examiner noted that he did not have muscle atrophy. There was no ankylosis, current meniscus condition, recurrent subluxation, or joint instability found. The examiner noted that the Veteran did have a tibial and/or fibular impairment and noted that his right leg measured 97 cm and his left leg measured 99 cm. The Board notes that the difference in leg measurement was due to a femur fracture, which will be discussed later in this decision. The Veteran was afforded a VA examination in September 2019. The Veteran reported chronic pain in the right knee with limited range of motion when walking downstairs, kneeling, squatting, getting up off the toilet, lifting, carrying, bending, twisting, and getting out of chairs. He reported that his right knee pain goes from a dull ache around the kneecap to more severe, and occasionally resulted in some swelling. He denied recent traumatic injuries to the right knee or falling. The examiner noted that he used a knee sleeve and cane. The Veteran reported flare-ups and stated that he cannot lift, carry, bend/twist, or walk/run for an extended period of time due to knee pain that is dull to sharper, which caused limited motion. On examination, the Veteran demonstrated flexion to 130 degrees and extension to 0 degrees, with pain on flexion. There was evidence of pain with weight bearing and mild tenderness of the peripatellar structures and moderate tenderness on the medial joint line on palpation. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional functional loss or range of motion. The Veteran was not examined immediately after repetitive use over time, but the examiner estimated that pain would cause a functional loss in flexion to approximately 125 degrees, with full extension. The Veteran was not examined during a flare-up, but the examiner opined that pain would cause a functional loss in flexion to 120 degrees, with full extension. The Veteran showed full strength in flexion and extension on muscle strength testing and the examiner noted that he did not have muscle atrophy. There was no ankylosis, recurrent subluxation, or joint instability found. The examiner noted the Veteran’s meniscal injury history, which caused frequent episodes of joint pain. The examiner reported that the Veteran’s right knee disability was moderate in severity. The Veteran’s treatment records show he was referred to physical therapy for his right knee, but do not show he ever received treatment. He reported at his hearing that VA was supposed to contact him regarding physical therapy, but had yet to do so. Treatment records do not reveal any range of motion testing and do not reveal any findings that would warrant a rating in excess of 20 percent prior to April 8, 2011, or in excess of 10 percent, thereafter. The Veteran has asserted that he has decreased strength and atrophy in his right knee. He testified to the fact that he had a loose patella, that his kneecap was “floating” and not completely attached. He also asserted that he cannot stand or walk for long periods of time, nor can he run or jog due to his right knee condition. He stated that swimming is the only exercise he can do that does not hurt his knee. He also asserted that the April 2011 and June 2016 VA examinations were not adequate because he was not asked to take his jeans off and that the 2016 VA examiner did not place the goniometer against him, but rather held it up and “eye-balled” the measurements. As a result, a new VA examination was ordered to determine the severity of his right knee disability. The Board is sympathetic to the Veteran’s assertions and does not doubt that the Veteran’s right knee causes pain and restricts him from certain activities. Regarding flexion, at the April 2011 VA examination, he demonstrated flexion to 135 degrees, thus, he does not meet the criteria for a compensable rating for limitation of flexion, which requires flexion limited to 60 degrees. Regarding extension, he showed full extension at the April 2011 VA examination. There was no evidence of severe recurrent subluxation or lateral instability, tibia and fibula impairment, any current meniscus problems, or genu recurvatum. Here, the evidence from the April 2011 VA examination was the reason the regional office decided to reduce his 20 percent rating, as his examination showed improvement of his right knee condition. The two subsequent examinations have confirmed the Veteran’s extensive range of motion in his right knee, and have not supported the assignment of a higher rating for the right knee. Accordingly, a rating in excess of 20 percent for a right knee disability, prior to April 8, 2011, is denied. The Veteran credibly testified in 2017 that his right knee is painful, especially when going up and down a hill or on uneven ground. He described it as a sharp pain that goes across the top of his kneecap. The Veteran’s VA examinations also show that he has shown a slight worsening in his range of motion testing from 2011 to 2019, however, they still do not warrant an increased rating under the rigid rating criteria for knee disabilities. As previously mentioned, the Board is sympathetic to the Veteran’s assertions and acknowledges the fact that the right knee is painful at time. However, the Veteran is currently assigned a rating to account for the pain, as the Veteran has not demonstrated compensable limitation of motion at any time during the course of the appeal. Moreover, the examiner in 2019 estimated that even during flare-ups the Veteran’s right knee flexion would not be limited to a compensable level. As such, the weight of the evidence is against a finding that he is entitled to a rating in excess of 10 percent, after April 8, 2011. Here, the Veteran showed flexion, at worst, to 120 degrees, well in excess of the 60 degree limitation for a noncompensable rating and showed full extension at all of his VA examinations. There is no evidence of ankylosis of the right knee, any clinical evidence of subluxation or instability, any current meniscus problems, tibia or fibula impairment, or genu recurvatum. The Board notes that the 2019 examiner attempted to quantify the Veteran’s pain during flare-ups, but felt that even then, range of motion in the knee would not be limited to a compensable level. Accordingly, a rating in excess of 10 percent for a right knee disability, after April 8, 2011, is denied. 2. A rating in excess of 20 percent for a lumbar spine disability is denied. In March 2011, the Veteran filed for an increased rating for his lumbar spine disability, rated at 20 percent, effective May 14, 2002. His claim was continued in a May 2011 rating decision. A March 2018 Board decision remanded the issue for a new VA examination to determine the current severity of the Veteran’s lumbar disability. A September 2019 SSOC confirmed the denial for a rating in excess of 20 percent for his lumbar disability. Therefore, the Board must determine whether the Veteran is entitled to a rating in excess of 20 percent, at any time during the appeal period. The Veteran’s lumbar disability is rated under Diagnostic Code 5237 and is rated using the General Rating Formula for Diseases and Injuries of the Spine. Back disabilities are currently rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has experienced any IVDS. The March 2017 VA examiner indicated that the Veteran did not have IVDS. Moreover, there is no evidence showing that the Veteran has been prescribed any bed rest to treat either his lumbar spine disability. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s thoracic spine disability and lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; if there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Veteran was afforded a VA examination in April 2011. The Veteran reported pain across his low back on a regular basis, with flare-ups at the end of the day, based on his activities. He reported some loss of range of motion, but no significant loss of strength or endurance and no totally incapacitating days due to his back condition. On examination, he showed flexion to 85 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 50 degrees. With three repetitions, he did have pain at the endpoints of motion, but did not decrease his range of motion. The examiner noted that he had downgoing toes and had a negative straight leg raise. The Veteran was afforded a VA examination in June 2016. The Veteran reported that his back condition still bothered him, but has not changed in severity since the 2011 VA examination. He reported that he had received treatment for his back since the 2011 VA examination. He reported flare-ups, which resulted in functional loss, described as decreased range of motion due to pain. On examination, he showed flexion to 80 degrees, extension to 25 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 20 degrees, with pain noted in all areas. There was evidence of pain on weight bearing, with mild diffuse lumbosacral tenderness. The Veteran was able to perform repetitive use testing and did not result in additional loss of function or range of motion. The Veteran was not tested after repetitive use over time, or during a flare-up, but the examiner noted that pain, weakness, fatigability, or incoordination significantly limited functional ability due to pain, but could not describe in terms of range of motion. The examiner noted that the Veteran had muscle spasms and localized tenderness, but did not result in abnormal gait or abnormal spinal contour. There was no evidence of guarding. On muscle strength testing, the Veteran showed full strength in all areas and there was no muscle atrophy. All reflexes were normal and straight leg testing results were negative. There was no evidence of radiculopathy, IVDS, or ankylosis. The examiner reported that the Veteran’s back condition was mild to moderate and was stable. The Veteran was afforded a VA examination in September 2019. The Veteran reported that his back was sore and stiff with limited range of motion because he could not bend, lift, or carry. He stated that he could not walk normally because of his sore and stiff back. He reported flare-ups that resulted in limited motion with lifting, carrying, bending, or twisting, which starts as a dull pain and increases in severity with all daily activities. He also reported functional loss due to limited motion because of pain. On examination, the Veteran showed flexion to 65 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees, with pain noted in all areas. The Veteran was able to perform repetitive use testing, which did not result in additional loss of function or range of motion. The Veteran was not tested after repetitive use over time, or during a flare-up, but the examiner noted that pain, weakness, fatigability, or incoordination significantly limited functional ability due to pain. The examiner estimated that range of motion with repeated use would cause forward flexion to decrease to approximately 60 degrees, extension to 10 degrees, right and left lateral flexion and rotation to 20 degrees. Regarding flare-ups, the examiner estimated that range of motion would cause flexion to decrease to approximately 55 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 15 degrees. The Veteran did not have guarding and did not report muscle spasms. On muscle strength testing, the Veteran showed full strength in all areas. Reflex, sensory and straight leg testing all showed normal testing results. There was no radiculopathy, IVDS, or ankylosis noted. The examiner reported that the Veteran’s low back was mild to moderate in severity. The Veteran’s treatment records show treatment for his low back pain. While his treatment records show that he has received treatment for his low back condition, they do not describe any limitation of range of motion greater than the examination findings. The Veteran has asserted that his back condition has gotten worse over the years, which warrants an increased rating. He has credibly testified that he has significant low back pain, which increases throughout the day, through normal daily life activities, which has interfered with the type of work and exercise he can engage in. He credibly testified that his back pain has interfered with his sleep because he cannot get into a comfortable position. The Board does believe that the Veteran’s low back condition does cause him hardship and pain, however, the examination results do not warrant an increased rating under the rigid regulations governing the rating criteria for disabilities of the spine. Here, the Veteran has not demonstrated limitation of motion for forward flexion of the thoracolumbar spine, limited to 30 degrees or less is consistent with a 40 percent rating; here, at worst, he showed forward flexion to 55 degrees, well in excess of the criteria for a 40 percent rating. The examiner reported that there was no ankylosis of the spine. Here, the weight of the evidence does not support findings consistent with a rating in excess of 20 percent. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran reported experiencing pain on range of motion testing. However, 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. Id. at 43; see 38 C.F.R. § 4.40. In this case, the Veteran demonstrated forward flexion limited to 65 degrees at his 2019 VA examination, and the examiner estimated that even during flare-ups, his forward flexion would only be limited to 55 degrees which is significantly more than the 30 degree limitation of flexion which would be required for a higher rating. Here, range of motion was tested after repetitive motion testing and the examiner estimated the limitation that would be produced during flare-ups (as no medical evaluations appear to have been conducted during a flare-up). However, as described, the forward flexion in the Veteran’s back has not been shown to be functionally limited to 30 degrees or less, even as a result of his back pain. Accordingly, a rating in excess of 20 percent for a lumbar spine disability is denied. 3. A 30 percent rating for residuals of a right femur fracture with hip disability is granted, from September 5, 2019, forward. In March 2011, the Veteran filed a claim for an increased rating for his right hip disability, rated at 20 percent, under Diagnostic Code 5255, effective July 1, 2001. His claim was continued in a May 2011 rating decision. A March 2018 Board decision remanded the issue for a new VA examination to determine the current severity of the Veteran’s right hip disability. A September 2019 SSOC confirmed the denial for a rating in excess of 20 percent for his right hip disability. Therefore, the Board must determine whether the Veteran is entitled to a rating in excess of 20 percent, at any time during the appeal period. With respect to disabilities of the hip, 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255 set forth the relevant provisions. Diagnostic Code 5250 evaluates ankylosis of the hip. The medical record does not document right hip ankylosis. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5251 evaluates limitation of extension. A 10 percent rating is assigned for extension limited to 5 degrees. Diagnostic Code 5252 evaluates limitation of flexion. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 20 degrees. A 40 percent rating is assigned for flexion limited to 10 degrees. Diagnostic Code 5253 evaluates an impairment of the thigh. A 10 percent rating is assigned for limitation of rotation to 15 degrees or limitation of adduction resulting in an inability to cross legs. A 20 percent rating is assigned for loss of abduction beyond 10 degrees. Diagnostic Code 5254 evaluates hip flail joint. The medical record does not document a right hip flail joint. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5255 evaluates impairment of the femur. A 10 percent rating is assigned for malunion of the femur with slight knee or hip disability. A 20 percent rating is assigned for malunion of the femur with moderate knee or hip disability. A 30 percent rating is assigned for malunion of the femur with marked hip or knee disability. A 60 percent rating is assigned for a fracture of the surgical neck with a false joint. A 60 percent rating is also assigned for a fracture of the shaft or anatomical neck with nonunion but without loose motion and with weightbearing preserved with aid of brace. An 80 percent rating is assigned for a fracture of the shaft or anatomical neck with nonunion or loose union. The Board notes that the Veteran is currently in receipt of a 20 percent rating under this Diagnostic Code, for a moderate hip disability. 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. The Veteran has also asserted that he is entitled to separate ratings for his right hip disability. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. Although it is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, the critical element in permitting the assignment of several evaluations under various Diagnostic Codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). From the beginning of the appeal period, the Veteran’s residuals of a right femur fracture with hip disability was rated under Diagnostic Code 5255, with the hip issue being trochanter bursitis with pain and loss of motion. In 2010, the Veteran was diagnosed with right hip degenerative disease and a VA examiner gave a positive nexus opinion that it was likely caused by his femur/hip issue. The RO did not assign a separate rating, but instead included the degenerative disease in the rating that was assigned under Diagnostic Code 5255 as being part of his moderate hip disability. While the Veteran’s hip disability diagnosis changed, his hip disability manifestations and functional impairment did not change and are considered in his current evaluation. As such, assigning a separate evaluation for right hip degenerative disease would constitute pyramiding and is not warranted. Essentially, degenerative joint disease is rated based on pain and limitation of motion, which are the specific symptoms rated under Diagnostic Code 5255. The Veteran was afforded a VA examination in April 2011. On range of motion testing, the Veteran showed flexion to 100 degrees, extension to 0 degrees, abduction to 45 degrees, adduction to 10 degrees, internal rotation to 30 degrees, and external rotation to 45 degrees. His range of motion was unchanged after three repetitions. Pain was noted in the groin at terminal flexion and internal rotation. The Veteran was afforded a VA examination in June 2016. The Veteran reported pain across the mid-thigh and over the greater trochanteric region, where the surgical incision was. He reported a low level of pain on a regular basis in the mid-thigh, but could increase significantly in the lateral hip if he rolls over on that side, which interferes with his sleep. He reported that he experienced flare-ups, which caused functional loss resulting in decreased range of motion due to pain. On examination, flexion was shown to 100 degrees, extension to 25 degrees, abduction to 45 degrees, adduction to 20 degrees, external rotation to 60 degrees, and internal rotation to 30 degrees, with pain noted in all areas. The Veteran was able to cross his legs. There was evidence of pain with weight bearing and evidence of localized tenderness in the directly over greater trochanter. There was no evidence of crepitus. He was able to perform repetitive use testing with at least three repetitions with no additional functional loss. The Veteran was not examined immediately after repetitive use over time or during a flare-up, but noted that pain, weakness, fatigability, or incoordination significantly limited functional ability under both circumstances. The examiner was unable to describe in terms of range of motion, but noted that the Veteran reported a reduced range of motion. On muscle strength testing, he showed full strength in all areas. No ankylosis was found. The examiner noted that there was leg length discrepancy, with the right leg measuring 97 cm and the left leg measuring 99 cm. The examiner reported that the right hip condition was mild to moderate in severity and stable. The Veteran was afforded a VA examination in September 2019. The Veteran reported that his hip was sore and stiff and constantly painful. He could not sleep on his right side or touch the area over the trochanteric area, as it has a burning sensation. He reported that the pain increased when he stands, walks, lifts, carries, or is on uneven ground. He reported that swimming helped in keeping his hip loose, but it was hard to fit in a busy schedule. He dealt with the pain by resting and changing positions, but there is a dull ache that never goes away. He reported flare-ups, that are caused by lifting, sleeping on, or touching his right hip, or walking on uneven ground, which results in burning sensations, to sharp pain. The flare-ups caused functional loss, resulting in limited range of motion due to pain. On examination, flexion was shown to 100 degrees, extension to 5 degrees, abduction to 25 degrees, adduction to 15 degrees, external rotation to 60 degrees and internal rotation to 5 degrees, with pain noted in all areas. He was able to cross his legs. There was evidence of pain with weight bearing and evidence of localized tenderness directly over the greater trochanter area. There was no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional loss of function. The Veteran was not tested after repetitive use over time, or during a flare-up, but the examiner noted that pain, weakness, fatigability, or incoordination significantly limited functional ability due to pain. The examiner opined that range of motion with repeated use would cause flexion to be limited to 90 degrees, extension to 5 degrees, abduction to 25 degrees, adduction to 15 degrees, external rotation to 60 degrees, and internal rotation to 5 degrees. The examiner opined that range of motion during flare-ups would limit flexion to 90 degrees, extension to 5 degrees, abduction to 25 degrees, adduction to 15 degrees, external rotation to 60 degrees, and internal rotation to 0 degrees. On muscle strength testing, he showed full strength in all areas, with no muscle atrophy. There was no ankylosis noted. The examiner noted that there was leg length discrepancy, with the right leg measuring 96 cm and the left leg measuring 99 cm. The examiner reported that the right hip condition was moderate to severe in severity. After a careful review of the Veterans treatment records, it does show that he complained of and received treatment for his right hip condition, but they do not reveal any findings that would warrant increased ratings. The Veteran has asserted that the condition of his right hip has gotten worse over time, and the contemporaneous medical evidence of record supports this assertion. He has credibly testified and made statements that his right hip condition has caused him to switch jobs, caused him to have difficulty exercising, caused sleep problems, and significant pain. The Board finds that the medical evidence of record supports a finding that there is femur impairment that results in a marked hip disability, which results in an increased rating under Diagnostic Code 5255. Here, the September 2019 VA examiner found that the Veteran’s right hip condition was moderate to severe in severity. The Veteran’s range of motion testing supports this finding. The initial range of motion testing showed that he had severely limited extension and internal rotation, both to 5 degrees. The examiner opined that during flare-ups, internal rotation would be limited to 0 degrees. The Veteran has also credibly stated that he has developed a burning sensation in his greater trochanteric area, which he had never described before during VA examinations or in treatment records. He stated to the June 2016 and September 2019 VA examiners that his right hip interfered with his sleep because he could not lie on his right side, due to the sharp pain that it would cause. He further stated that simply walking on uneven ground causes pain to worsen in his right hip. When taking the Veteran’s right hip disability picture as a whole into account, the Board finds that it amounts to a marked hip disability. Here, the September 2019 VA examiner found that the Veteran’s right hip condition was moderate to severe, he had severely limited range of motion for extension and internal rotation in the right hip, along with his credible statements that he has developed burning sensations in his right hip, he has difficulty sleeping, and it has altered his career and the way he exercises. However, a higher 60 percent evaluation is not warranted as the medical evidence does not demonstrate a fracture of the surgical neck of the femur or nonunion of the femur. A rating in excess of 20 percent, prior to September 5, 2019, is not warranted because the June 2016 VA examiner found that the severity of his right hip condition was mild to moderate and he had not developed the burning sensation in his hip. The weight of the evidence does not support a finding of a marked hip disability, prior to the September 2019 VA examination. Accordingly, a 30 percent rating for the Veteran’s right hip disability is granted, from September 5, 2019, forward. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.