Citation Nr: 21000919 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-31 317A DATE: January 6, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for left hip osteoarthritis with grade 3 avascular necrosis, is denied. Entitlement to an initial rating in excess of 10 percent for left hip limitation of abduction and adduction is denied. Entitlement to an initial compensable rating for left hip limitation of flexion is denied. Entitlement to an initial rating in excess of 10 percent right hip osteoarthritis with grade 3 avascular necrosis is denied. Entitlement to an initial rating in excess of 10 percent for right hip limitation of abduction and adduction is denied. Entitlement to an initial compensable rating for right hip limitation of flexion is denied. Entitlement to an initial 20 percent rating for right ankle osteoarthritis is granted. REMANDED Entitlement to a rating in excess of 10 percent for facial weakness and biting of the tongue due to acoustic neuroma excision is remanded. Entitlement to an initial compensable rating for scar behind right ear is remanded. FINDINGS OF FACT 1. The Veteran’s left hip disability is assigned the maximum 10 percent disability rating for limitation of extension. 2. The medical findings of record do not show that the Veteran’s left hip disability is manifested by limited abduction of motion lost beyond 10 degrees. 3. The Veteran’s left hip disability is not manifested by flexion limited to 45 degrees or less. 4. The Veteran’s right hip disability is assigned the maximum 10 percent disability rating for limitation of extension. 5. The Veteran’s left hip disability is not manifested by limited abduction of motion lost beyond 10 degrees. 6. The Veteran’s right hip disability is not manifested by flexion limited to 45 degrees or less. 7. The Veteran’s right ankle disability more nearly approximates marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left hip osteoarthritis with grade 3 avascular necrosis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 2. The criteria for an initial rating in excess of 10 percent for left hip limitation of abduction and adduction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 3. The criteria for an initial compensable rating for left hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 4. The criteria for an initial rating in excess of 10 percent right hip osteoarthritis with grade 3 avascular necrosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 5. The criteria for an initial rating in excess of 10 percent for right hip limitation of abduction and adduction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 6. The criteria for an initial compensable rating for right hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 7. The criteria for an initial 20 percent rating for right ankle osteoarthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from June 1954 to June 1958. These matters come before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is associated with the record. In June 2019, the Board remanded the Veteran’s claim for compensation for a lumbosacral spine disorder under 38 U.S.C. § 1151 for additional development. An August 2020 rating decision granted service connection for lumbosacral spine degenerative joint disease and degenerative disc disease. The Board finds that the issue has been granted in full and is no longer before the Board. The August 2020 rating decision granted compensation for surgical scar behind right ear and assigned an initial noncompensable rating effective February 6, 2014. Because this separate initial rating was granted as a result of his service-connected facial weakness and biting of the tongue due to acoustic neuroma excision that is on appeal, the matter remains on appeal. Regarding a finding of individual unemployability due to service-connected disabilities (TDIU), the Veteran was awarded TDIU from May 2010, years before the Veteran filed the initial rating claims on appeal and, therefore, TDIU is not an issue on appeal. Regarding special monthly compensation (SMC) under 38 U.S.C. § 1114(s), the Veteran was granted TDIU as a result of the combination of multiple service-connected disabilities. Therefore, SMC under 38 U.S.C. § 1114(s) is not considered a raised issue on appeal. Bradley v. Peake, 22 Vet. App. 280 (2008); Akles v. Derwinski, 1 Vet. App 118 (1991). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in November 2014. The RO associated the Veteran’s service and VA and private treatment records with the claims file. Updated VA treatment records were obtained and associated with the claims file in accord with the Board’s June 2019 remand directive. In December 2018, the Veteran testified that he received private medical treatment from Kaiser. In September 2019, the Veteran was provided a notice letter and asked to provide release forms or submit relevant private records. He did not respond, frustrating any additional efforts. Concerning the February 2015 VA examination report for the hips, the examiner indicated that active and passive range of motion was tested in addition to weight-bearing and non-weight-bearing and both hips were tested as they are both service connected. The examiner also provided the estimated limitation of motion (in all planes) during flare-ups and periods of repeated use. The Board finds the examination adequate for rating purposes. See Correia v. McDonald, 28 Vet. App. 158 (2016). Regarding the February 2015 VA examination report for the right ankle, range of motion was tested in both ankles, the examiner indicated range of motion that was painful on active, passive, and/or repetitive testing, and provided an estimated 5 degree range of motion loss during a flare-up or when the joint was repeatedly used over time. The Board finds the examination adequate for rating the right ankle disability. The Board notes that the May 2017 VA examiner could not provide opinions regarding estimated limitation of motion during flare-ups without resorting to speculation for the right ankle and the hips. The examiner did not provide sufficient reasoning for that opinion and, therefore, the Board will not use that examiner’s assessments regarding additional limitation of motion during flare-ups and periods of repeated use to deny the claims, but will address the other relevant findings in the examination reports. In December 2019, the Veteran was provided adequate VA examinations for his hips and right ankle disability that noted passive range of motion testing, tested opposing joints, addressed weight-bearing and non-weight bearing, and provided estimated limitation of motion during flare-ups and periods of repeated use. The December 2019 VA examination reports comply with the Board’s June 2019 remand directive. See Stegall, 11 Vet. App. at 271. As such, VA has satisfied its duty to assist. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating any disability based on limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). While pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Additionally, flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 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 measurements of the opposite undamaged joint. Hips Concerning the Veteran’s claims for higher initial ratings for his service-connected hip disabilities, the Board will list the evidence and then address each claim. VA and private treatment records show complaints of hip pain. In February 2015, the Veteran was provided a VA examination for his hips. The claims folder was reviewed. The report shows diagnoses of osteoarthritis of both hips and avascular necrosis of both hips. The Veteran reported flare-ups and described his bilateral hip flare-ups as pain when he bent or stooped a certain way, and he described the pain as sharp. The Veteran did not report functional loss or functional impairment. On examination, there was right hip flexion to 70 degrees; right hip extension to 25 degrees; right hip internal rotation to 30 degrees; right hip external rotation to 50 degrees; right hip abduction to 30 degrees; and right hip adduction to 20 degrees. Adduction was not limited such that the Veteran could not cross his legs. On examination, there was left hip flexion to 70 degrees; left hip extension to 20 degrees; left hip internal rotation to 25 degrees; left hip external rotation to 25 degrees; left hip abduction to 25 degrees; and left hip adduction to 20 degrees. Adduction was not limited such that the Veteran could not cross legs. The examiner stated that the Veteran’s range of motion contributed to functional loss. The Veteran was able to perform repetitive-use testing and there was no change in range of motion after repetitive testing. The examiner indicated that painful movement on active, passive, and/or repetitive testing contributed to functional loss. There was also pain when used in weight-bearing or non-weight-bearing and the pain contributed to functional loss. The examiner found that there was less movement than normal of the right and left hips; pain on movement of the right and left hips; interference with sitting of the right and left hips; and interference with standing of the right and left hips. Concerning the right hip, the examiner indicated that the above factors significantly limited functional ability during flare-ups or when the joint was used repeatedly over time. There was an estimated additional 5 degree loss for right hip flexion, extension, internal rotation, external rotation, abduction, and adduction. Concerning the left hip, there was an estimated additional 5 degree loss in flexion, extension, internal rotation, external rotation, abduction, and hip adduction. There was no functional loss other than limitation of motion associated with flare-ups or repeated use for either hip. Muscle strength testing was normal. There was no ankylosis of the right or left hip. The Veteran did not use an assistive device as a normal mode of locomotion. Concerning functional impact on work, the Veteran would have limitations with bending, stooping, and flexing of the hip. The examiner stated that the Veteran could perform activities of daily living except for the above limitations. A February 2017 private medical report regarding employability shows that the Veteran reported that his hips became very problematic over the years and that it was bothersome when he sat for too long or was on his feet for too long. In May 2017, the Veteran was provided a VA examination for his hips. The claims folder was reviewed. The report shows a diagnosis of avascular necrosis of the right and left hips. The Veteran reported that his condition worsened over time and that he used a cane. The Veteran reported flare-ups and described them as being limited by pain in activities such as prolonged sitting, standing, walking, repetitive bending and heavy lifting. Concerning functional loss and impairment, the Veteran had impaired prolonged sitting, standing, walking, repetitive bending, and heavy lifting. On examination, right hip flexion was 105 degrees; right hip extension was 25 degrees; right hip abduction was 35 degrees; right hip adduction was 20 degrees; right hip external rotation was 50 degrees; and right hip internal rotation was 35 degrees. Adduction was not limited such that the Veteran could not gross legs. It was noted that the range of motion contributed to a functional loss by impairing ambulation. The pain noted on examination caused functional loss and pain was noted on all planes of range of motion, and there was pain with weight-bearing. There was objective evidence of crepitus and mild tenderness to palpation of the hip joint girdle. On examination, left hip flexion was 105 degrees, left hip extension was 25 degrees, left hip abduction was 35 degrees; left hip adduction was 20 degrees; left hip external rotation was 50 degrees; left hip internal rotation was 35 degrees. Adduction was not limited such that the Veteran could not cross legs. It was noted that the range of motion contributed to a functional loss by impairing ambulation. The pain noted on examination caused functional loss and pain was noted on all planes of range of motion, and there was pain with weight-bearing. There was objective evidence of crepitus and mild tenderness to palpation of the hip joint girdle. On repetitive-use testing, there was additional loss of range of motion of both hips. Right hip flexion was 90 degrees; right hip extension was 20 degrees; right hip abduction was 30 degrees; right hip adduction was 15 degrees; right hip external rotation was 45 degrees; right hip internal rotation was 30 degrees. Post-test adduction was not limited such that the Veteran could not cross legs. Pain caused the additional functional loss. On repetitive testing, left hip flexion was 90 degrees; left hip extension was 20 degrees; left hip abduction was 30 degrees; left hip adduction was 15 degrees; left hip external rotation was 45 degrees; and left hip internal rotation was 30 degrees. Post-test adduction was not limited such that the Veteran could not cross legs. The examiner noted that the Veteran was being examined immediately after repetitive use over time and pain and lack of endurance limited functional ability with repeated use over a period of time. The examiner described the range of motion during such a period as right hip flexion to 75 degrees; right hip extension to 15 degrees; right hip abduction to 25 degrees; right hip adduction to 10 degrees; right hip external rotation to 40 degrees; and right hip internal rotation to 25 degrees. Post-test adduction was not limited such that the Veteran could not cross his legs. Regarding the left hip, the examiner noted that the Veteran was being examined immediately after repetitive use over time. The examiner found that pain and lack of endurance caused functional loss and left hip flexion would be limited to 75 degrees; extension to 15 degrees; abduction was 25 degrees; adduction to 10 degrees; external rotation to 40 degrees; and internal rotation to 25 degrees. Post-test adduction was not limited such that the Veteran could not cross legs. Regarding flare-ups, the examination was not completed during a flare-up. The examiner found that pain, fatigue, and weakness would cause functional loss during a flare-up of the right or left hip. Concerning any description of loss of range of motion for either hip, the examiner stated that he was unable to say without resorting to mere speculation. The examiner explained that the objective determination of whether the Veteran is experiencing a flare-up or not could only be determined by someone like PMD/PCP who had prior acquaintance with the Veteran’s body and has determined a non-flare-up base line for comparison. The examiner stated that he could neither confirm nor refute flare-up status and could not verify if the objective range of motion that he observed after repetitive use represents range of motion during flare-up or not without resorting to speculation. The examiner noted that there were additional factors contributing to the left and right hip disabilities including less movement than normal; disturbance of locomotion; interference with sitting; and interference with standing. Muscle strength testing was normal in all areas tested and the Veteran did not have muscle atrophy. There was no ankylosis. The Veteran used a cane as a regularly used assistive device. The functional impact of the disabilities was impaired prolonged standing, walking, and running. The examiner noted that there was objective evidence of pain on passive range of motion testing of both hips and no evidence of pain on non-weight bearing testing of either hip. In December 2018, the Veteran testified that he felt that he was experiencing increased problems with his hips and that he could hardly walk around. He stated that he used a cane and obtained a walker. He stated that he walked maybe a block before he had to sit or lie down. He reported that he received shots in his hips about once a month. In December 2019, the Veteran was provided another VA examination. The claims folder was reviewed. The report shows a diagnosis of right and left hip osteoarthritis with grade three avascular necrosis. The Veteran reported constant pain in the hips and that the pain worsened with prolonged standing and walking. He used Tylenol for pain. The Veteran reported flare-ups and described them as pain and stiffness in the hips. He also reported functional loss or impairment described as that he could not stand or walk for prolonged time. On examination, right hip flexion was 100 degrees; right hip extension was 25 degrees; abduction was 35 degrees; adduction was 20 degrees; external rotation was 50 degrees; and internal rotation was 30 degrees. Adduction was not limited such that the Veteran could not cross legs. Range of motion itself contributed to a functional loss in that it caused an antalgic gait. There was no pain noted on examination and no objective evidence of tenderness or pain on palpation of the joint or soft tissue. There was evidence of pain with weight bearing and objective evidence of crepitus. On examination, left hip flexion was 100 degrees; left hip extension was 25 degrees; left hip abduction was 35 degrees; left hip adduction was 20 degrees; left hip external rotation was 50 degrees; and left hip internal rotation was 30 degrees. Adduction was not limited such that the Veteran could not cross legs. The range of motion itself did not contribute to a functional loss. There was no pain on examination and no objective evidence of tenderness or pain on palpation of the joint or soft tissue. There was pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive-use testing and there was no change in the right hip or left hip range of motion findings. Regarding repeated use over time, pain, fatigue, weakness and lack of endurance would impact repeated use over time. The examiner stated that repeated use over time would result in right hip flexion to 100 degrees; right hip extension to 25 degrees; right hip abduction to 35 degrees; right hip adduction to 20 degrees; right hip external rotation to 50 degrees and internal rotation to 30 degrees. Regarding repeated use of the left hip, pain, fatigue, weakness, and lack of endurance would cause functional loss. The examiner stated that repeated use over time would result in left hip flexion to 100 degrees; left hip extension to 25 degrees; left hip abduction to 35 degrees; left hip adduction to 20 degrees; left hip external rotation to 50 degrees; and left hip internal rotation to 30 degrees. With respect to flare-ups, pain, fatigue, weakness, and lack of endurance would cause functional loss of the right hip. The examiner stated that flare-ups would result in right hip flexion to 100 degrees; right hip extension to 25 degrees; right hip abduction to 35 degrees; right hip adduction to 20 degrees; right hip external rotation to 50 degrees; and internal rotation to 30 degrees. Post-test adduction was not limited such that the Veteran could not cross legs. Regarding flare-ups of the left hip, pain, fatigue, weakness, and lack of endurance would cause functional loss during flare-ups. The examiner stated that during a flare-up, left hip flexion would be limited to 100 degrees; left hip extension limited to 25 degrees; left hip abduction limited to 35 degrees; left hip adduction limited to 20 degrees; left hip external rotation limited to 50 degrees; and left hip internal rotation limited to 30 degrees. Post-test adduction was not limited such that the Veteran could not cross legs. The examiner noted that instability of station, disturbance of locomotion, and interference with standing contributed to the left and right hip disability. The examiner noted that the Veteran could not stand or walk for a prolonged time and that he had a slightly antalgic gait. Muscle strength testing was normal and there was no muscle atrophy. There was no ankylosis. The Veteran regularly used a cane. Regarding functional impact on work, the Veteran would not be able to stand or walk for a prolonged time. There was no objective evidence of pain on non-weight bearing for the right and left hips and the passive range of motion findings were the same as active range of motion findings for the right and left hips. In addition, the pain present on passive range of motion was the same as active range of motion for the right and left hips. Left Hip Osteoarthritis with grade 3 avascular necrosis 1. The Veteran’s left hip osteoarthritis is rated as 10 percent disabling under Diagnostic Codes 5010-5251. Diagnostic Code 5251 provides a maximum 10 percent rating for extension limited to 5 degrees. Because the Veteran is in receipt of the maximum rating under this code, a higher rating is not warranted. He has not described any signs, symptoms, or manifestations not contemplated by the schedular rating, particularly as actual functional impairment has been considered. 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Limitation of abduction and adduction The Veteran’s left hip disability is rated as 10 percent disabling under Diagnostic Code 5253. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation, cannot toe-out more than 15 degrees of affected leg or limitation of adduction, cannot cross legs. A 20 percent rating is warranted for limitation of abduction of, motion lost beyond 10 degrees. The medical findings of record do not reflect abduction with motion lost beyond 10 degrees and a higher rating is not warranted. Even considering additional functional loss and impairment during flare-ups and periods of repeated use, the evidence does not reflect that such impairment would be akin to motion lost beyond 10 degrees. The February 2015 VA examination report indicated a loss of five degrees during flare-up and repeated use, resulting in a finding of 20 degrees of abduction, and the December 2019 VA examination report shows that the Veteran’s abduction would still be 35 degrees during periods of flare-up and/or repeated use. A higher rating is therefore not warranted. A preponderance of the evidence is against a rating in excess of 10 percent and the claim for a higher initial rating is denied. Limitation of flexion The Veteran’s left hip flexion is rated as 0 percent disabling under Diagnostic Code 5252. Normal ranges of motion of the hip are hip flexion from 0 degrees to 125 degrees and hip abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion of the thigh that is limited to 45 degrees; a 20 percent rating is for flexion of the thigh that is limited to 30 degrees; a 30 percent rating is for flexion of the thigh that is limited to 20 degrees; and a 40 percent rating is for flexion of the thigh that is limited to 10 degrees. 38 C.F.R. § 4.71a, Code 5252. Here, the medical findings of record do not reflect flexion of the thigh limited to 45 degrees or less and a compensable rating is not warranted. Even considering additional functional impairment and loss during flare-ups and/or periods of repeated use, the medical evidence does not show that the Veteran’s left hip disability would more nearly approximate 45 degrees of flexion or less during flare-ups or repeated use. The February 2015 VA examination report indicated that the Veteran would only lose an additional 5 degrees during flare-ups and periods of repeated use resulting in a finding of flexion to 65 degrees, and the December 2019 VA examination report shows that the Veteran would still exhibit flexion to 100 degrees during flare-ups or periods of repeated use. A compensable rating is not warranted. A preponderance of the evidence is against a compensable rating and the claim is denied. Other applicable codes Increased evaluations under other potentially applicable Diagnostic Codes have also been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Here, there is no evidence of ankylosis, hip, flail joint, or impairment of femur. See Diagnostic Codes 5250, 5254, 5255. Therefore, these codes are not applicable. Additionally, while, as demonstrated above, separate ratings may be assigned for functional disability in differing planes of movement, as they measure different impairments, multiple ratings for a single joint under 38 C.F.R. § 4.59 for generalized painful motion is not permitted. Such is applied regardless of plane of motion, and so assigning more than a single 10 percent under that regulation, or in addition to a compensable rating for a joint-specific Code, would be duplicative and constitute prohibited pyramiding. 38 C.F.R. § 4.14. Right Hip Osteoarthritis with grade 3 avascular necrosis The Veteran’s right hip osteoarthritis is rated as 10 percent disabling under Diagnostic Codes 5010-5251. Diagnostic Code 5251 provides a maximum 10 percent disability rating for extension limited to 5 degrees. Because the Veteran is in receipt of the maximum rating under this code, a higher rating is denied. He has not described any signs, symptoms, or manifestations not contemplated by the schedular rating, particularly as actual functional impairment has been considered. 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Limitation of abduction and adduction The Veteran’s right hip disability is assigned a 10 percent rating under Diagnostic Code 5252. A higher rating is not warranted as the medical findings do not reflect limited of abduction such that motion is lost beyond 10 degrees. Even considering additional functional impairment during flare-ups and/or periods of repeated use, the evidence does not show that abduction would be lost beyond 10 degrees during flare-ups or a period of repeated use. The February 2015 VA examination report indicated only a loss of 5 degrees, resulting in abduction to 25 degrees during a flare-up or period of repeated use, and the December 2019 VA examination report shows that abduction would be limited to 35 degrees during a flare-ups and periods of repeated use. A higher rating is not warranted. A preponderance of the evidence is against a rating in excess of 10 percent and the claim for a higher initial rating is denied. Limitation of flexion The Veteran’s right hip disability is assigned a 0 percent rating under Diagnostic Code 5252. A compensable rating is not warranted as the evidence does not flexion limited to 45 degrees or less. Even considering additional functional impairment during periods of flare-ups and/or repeated use, the evidence does not show that flexion would be limited to 45 degrees or less. The February 2015 VA examination report indicated an estimated loss of 5 degrees of flexion during a flare-up or period of repeated use, resulting in a finding of flexion to 65 degrees. The December 2019 VA examination report shows that the examiner estimated that the Veteran would have flexion to 100 degrees during flare-ups and periods of repeated use. A compensable rating is not warranted. A preponderance of the evidence is against a compensable rating and the claim for a higher initial rating is denied. Other applicable codes Here, there is no evidence of ankylosis, hip, flail joint, or impairment of femur. See Diagnostic Codes 5250, 5254, 5255. Therefore, these codes are not applicable. rating under these codes is not warranted. Additionally, while, as demonstrated above, separate ratings may be assigned for functional disability in differing planes of movement, as they measure different impairments, multiple ratings for a single joint under 38 C.F.R. § 4.59 for generalized painful motion is not permitted. Such is applied regardless of plane of motion, and so assigning more than a single 10 percent under that regulation, or in addition to a compensable rating for a joint-specific Code, would be duplicative and constitute prohibited pyramiding. 38 C.F.R. § 4.14. Right ankle osteoarthritis The Veteran’s right ankle disability is rated as 10 percent disabling under Diagnostic Code 5271. Under that code, a 10 percent rating is warranted for moderate limitation of motion and a 20 percent rating is warranted for marked limitation of motion. Normal range of motion of the ankle includes plantar flexion from 0 degrees to 45 degrees and dorsiflexion (extension) from 0 degrees to 20 degrees. 38 C.F.R. § 4.71a, Plate II. An October 2013 right ankle x-ray shows an assessment of severe talonavicular osteoarthritis with joint space narrowing and osteophytosis. An October 2013 statement from Dr. P.P. noted that the Veteran had chronic ankle problems and wore a brace. VA treatment records show complaints of pain. A January 2014 VA treatment record noted severe ankle pain and a February 2017 VA treatment record noted occasional right ankle pain and difficulty with gait. In February 2015, the Veteran was provided a VA examination for his right ankle. The claims folder was reviewed. Currently, the Veteran reported that he continued to have dull, intermittent pain in the right ankle, denied swelling or tenderness with palpation and continued to ambulate with no limitations. The Veteran reported that flare-ups impact the function of the ankle. He described the flare-ups as when he walked the pain was there all the time, it was a dull pain, and the pain was worse with increased movement in the ankle. He did not report any functional loss or impairment. On examination, range of motion was normal. The Veteran was able to perform repetitive-use testing and there was no change in range of motion after repetitive testing. The examiner indicated that there were range of motion movements painful on active, passive and/or repetitive use testing. There was pain on movement and interference with standing. The examiner indicated that the pain on movement and interference with standing would limit functional ability during flare-ups or when the joint is used repeatedly over time. The examiner estimated an additional 5-degree of loss of plantar flexion and an additional 5-degree loss of dorsiflexion. Muscle strength testing was normal, and the Veteran did not have muscle atrophy. There was no ankylosis. He did not use an assistive device for normal mode of locomotion. The examiner indicated that the Veteran had limitations with prolonged walking and standing, running, jumping, climbing, and walking on uneven terrain. The Veteran could perform activities of daily living except the above limitations. A February 2017 private record regarding employability, shows that the Veteran reported that his ankle as very painful and that pain increased with every step he took. He continued to walk with a cane. In May 2017, the Veteran was provided a VA examination for his right ankle. The claims folder was reviewed. The report lists a diagnosis of osteoarthritis of the ankle. The Veteran reported that his condition was worsened over time. He reported flare-ups and described them as limited by pain in activities such as prolonged standing, walking, and running. The Veteran reported functional impairment consisting of impaired prolonged standing, walking, and running. On examination, range of motion testing was normal. The examiner indicated that pain noted on examination caused functional loss and that dorsiflexion and plantar flexion exhibited pain. There was mild tenderness to palpation of the medial and lateral aspects. There was evidence of pain with weight bearing. There was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing and there was additional loss of function or range of motion after three repetitions. Plantar flexion was reduced to 35 degrees and dorsiflexion was reduced to 15 degrees. Regarding repeated use over time, the Veteran’s pain and lack of endurance caused this functional loss. Dorsiflexion would be reduced to 10 degrees and plantar flexion to 30 degrees. With respect to flare-ups, the Veteran’s pain would cause functional loss during flare-ups. The examiner was unable to determine the range of motion during a flare-ups without resorting to mere speculation. The examiner explained that objective determination of whether the Veteran is experiencing a flare-up or not can only be determined by someone like PMD / PCP who has prior acquaintance with the Veteran’s body and has determined a non-flare-up base like for comparison. The examiner stated that he could neither confirm nor refute flare-up status and could not verify if the objective range of motion that he observed after repetitive use represents range of motion during flare-up or not without resorting to speculation. The additional factors contributing to disability included less movement than normal and interference with standing. Muscle strength testing was normal. There was no ankylosis. There was no suspected instability or dislocation. The Veteran used a cane on a regular basis for his right ankle pain and bilateral hip pain. The functional impact on employment would be impaired prolonged standing, walking, and running. In December 2018, the Veteran stated that his right ankle had worsened and that it caused some imbalance problems. He also stated that he has pain and that when he walks or moves his ankle, it hurts most of the time. He also reported instability and very little swelling if any. In December 2019, the Veteran was provided a VA examination for his ankle. The report shows a diagnosis of osteoarthritis of the ankle. The Veteran reported pain that gets worse with prolonged standing and walking and occasional swelling. He reported that he takes Tylenol. He reported flare-ups and described them as pain and swelling of the right ankle. The Veteran also reported functional loss or impairment and stated that he could not stand or walk for prolonged time. On examination, dorsiflexion was 15 degrees and plantar flexion was 35 degrees. Range of motion itself did not contribute to a functional loss. There was no pain noted on examination. There was no objective evidence of tenderness or pain on palpation and no evidence of pain with weight bearing. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing and there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time and the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time. The examiner noted that dorsiflexion would be 15 degrees and plantar flexion to 35 degrees. Regarding flare-ups, the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with flare-ups. During a flare-up, dorsiflexion would be limited to 10 degrees and plantar flexion to 25 degrees. Additional factors contributing to disability include disturbance of locomotion and interference with standing. The examiner noted that the Veteran could not stand or walk for a prolonged time. Muscle strength testing was normal, and the Veteran did not have muscle atrophy. There was no ankylosis. There was no instability suspected. The Veteran regularly used a cane as an assistive device as a normal mode of locomotion. The examiner noted that passive range of motion was the same as active range of motion and the pain present was the same on active range of motion and there was no evidence of pain when the right ankle was used in non-weight bearing. Here, when considering additional functional impairment and loss during flare-ups and periods of repeated use, the Board finds that the evidence supports the assignment of a 20 percent for marked limitation of motion. Though the February 2015 VA examination report indicated a minimal loss of range of motion during flare-ups and repeated use, the May 2017 VA examiner determined that the Veteran’s dorsiflexion would be reduced to 10 degrees during a period of repeated use, and the December 2019 VA examiner explained that during a period of repeated use, dorsiflexion would be limited to 15 degrees and plantar flexion to 35 degrees and during flare-ups, dorsiflexion would be limited to 10 degrees and plantar flexion to 25 degrees. Resolving doubt in the Veteran’s favor, the Board finds that the Veteran’s right ankle disability more nearly approximates marked limitation of motion and a 20 percent rating is warranted. Because this is the maximum rating allowable under Diagnostic Code 5271, a rating in excess of 20 percent is not warranted. Increased ratings under other potentially applicable Diagnostic Codes have also been considered. The evidence of record does not show that the Veteran has tibia and fibula impairment, ankylosis, a heel bone fracture, or has had an astragalectomy. Therefore, a rating under Diagnostic Codes 5262, 5270, 5272, 5273, or 5274 is not warranted. 38 C.F.R. §§ 4.7, 4.71a. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for facial weakness and biting of the tongue due to acoustic neuroma excision is remanded. In June 2019, the Board remanded the Veteran’s claim to obtain a new VA examination. The examiner was asked to address the Veteran’s reported symptoms including inability to close the jaw on the right side and need for dental appliances, face drooping, muscle atrophy, and inaudible speech. In January 2020, the Veteran was provided a VA examination for cranial nerves. The Board finds the examination adequate concerning the manifestations of his disability, other than his reported dental issues. The examiner mentioned the Veteran’s report of a loose denture, but did not otherwise examine the Veteran’s teeth or dental appliances, and did not discuss whether the Veteran had any dental disabilities as a result of his facial weakness and biting of the tongue due to acoustic neuroma excision. Accordingly, a new VA examination is required. Entitlement to an initial compensable rating for scar behind right ear is remanded. The claim for an initial compensable rating for scar behind right ear must also be remanded because the ordered VA examination for the Veteran’s facial weakness and biting of the tongue may also provide additional information regarding his scar. The matters are REMANDED for the following action: 1. Schedule a new VA examination for the Veteran’s facial weakness and biting of the tongue due to acoustic neuroma excision. The claims folder must be reviewed. All manifestations must be addressed, and the examiner must discuss the Veteran’s reported dental issues and symptoms and whether any dental disability is part and parcel of his service-connected facial weakness and biting of the tongue due to acoustic neuroma excision. Referral to a dental clinic may be necessary. A full and complete rationale must be provided for any opinion reached. 2. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issues. If the issues remain denied, return the matters to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.