Citation Nr: 21003257 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 19-27 681 DATE: January 21, 2021 ORDER The claim of entitlement to an initial rating in excess of 60 percent for right total knee replacement residuals from July 1, 2020, is denied. The claim of entitlement to an initial rating in excess of 40 percent for degenerative arthritis of the spine with intervertebral disc syndrome is denied. The claim of entitlement to an initial rating in excess of 10 percent for right hip limitation of extension prior to December 30, 2019, is denied. The claim of entitlement to an initial compensable rating for right hip limitation of flexion prior to December 30, 2019, is denied. The claim of entitlement to an initial compensable rating for right hip impairment prior to December 30, 2019, is denied. The claim of entitlement to a disability rating in excess of 20 percent for a right ankle disorder is denied. REMANDED The claim of entitlement to an initial rating in excess of 10 percent for right knee degenerative arthritis prior to May 13, 2019, is remanded. The claim of entitlement to an initial rating in excess of 70 percent for right total hip arthroplasty from February 1, 2021, is remanded. FINDINGS OF FACT 1. Beginning on July 1, 2020, the Veteran has been in receipt of the maximum schedular rating allowable for right total knee replacement residuals. 2. Throughout the appeal period, the Veteran did not have unfavorable ankylosis of the entire thoracolumbar spine. He also did not have incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. 3. Prior to December 1, 2019, the Veteran was in receipt of the maximum schedular rating for right hip extension. 4. Prior to December 1, 2019, the Veteran’s right hip impairment was not manifested by limitation of abduction of the right hip, nor motion lost beyond 10 degrees. 5. Prior to December 1, 2019, the Veteran’s right hip flexion was not manifested by right thigh flexion limited to 45 degrees. 6. Throughout the appeal period, the Veteran did not have ankylosis of the right ankle. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for right total knee replacement residuals have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5055 (2019). 2. The criteria for an initial rating in excess of 40 percent for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5243 (2019). 3. The criteria for an initial rating in excess of 10 percent for right hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5251 (2019). 4. The criteria for an initial compensable rating for right hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5252 (2019). 5. The criteria for an initial compensable rating for right hip impairment have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5253 (2019). 6. The criteria for a disability rating in excess of 20 percent for the service-connected right ankle disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5271(2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from October 1961 to July 1962. During the pendency of the appeal, the Veteran received total (100 percent) disability ratings following his right total knee replacement surgery in May 2019 and his right hip replacement in December 2019. The rating for the right knee was in effect until July 1, 2020, and it was subsequently reduced to 60 percent following the period of convalescence. The rating for the right hip is in effect until February 1, 2021, and the RO reduced it to 70 percent following the period of convalescence. As a result, this is a full grant of benefits sought on appeal for the periods from May 13, 2019, to June 30, 2020, and from December 30, 2019, to January 31, 2021, and those periods are no longer on appeal. The issues are more accurately characterized as listed above. In January 2020, this case was remanded for additional development. In August 2020, the RO increased the disability ratings for the lumbar spine disorder from 10 percent to 40 percent and the right ankle disorder from 10 percent to 20 percent, both effective Februarys 22, 2018. Despite the increased disability ratings, the Veteran’s appeal remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Accordingly, the issues remain in appellate status. The Board has characterized the issues on appeal accordingly. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2018). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform 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 of these elements. 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2018) and Schafrath v. Derwinski, 1 Vet. App. at 589, the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities under review. In addition, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. 1. Entitlement to an initial rating in excess of 60 percent for right total knee replacement residuals from July 1, 2020, is denied. The Veteran’s right total knee replacement residuals are rated pursuant to Diagnostic Code 5055 for knee replacement. Pursuant to Diagnostic Code 5055, a 60 percent rating is the maximum rating for chronic residuals consisting of severe painful motion or weakness following a one-year period of convalescence. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Consideration of entitlement to an even higher rating is subject to 38 C.F.R. § 4.68 (i.e., the amputation rule), which stipulates that the combined rating for disabilities of an extremity shall not exceed the rating for amputation of the extremity at the elective level. Amputation at the elective level would be at thigh level, middle or lower thirds. Amputation at that level warrants only a 60 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5165. Accordingly, a schedular rating in excess of 60 percent for the Veteran’s service-connected right total knee replacement is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the current appeal. See 38 U.S.C. § 5107 (b) (2012). 2. Entitlement to an initial rating in excess of 40 percent for degenerative arthritis of the spine with intervertebral disc syndrome. The Veteran’s lumbar spine disorder has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243 used to rate intervertebral disc syndrome (IVDS). Disabilities of the spine are evaluated under the criteria set forth in the General Rating Formula for Diseases (General Rating Formula) and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever results in the higher evaluation. See 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Under the General Rating Formula, with or without symptoms such as pain, to include whether it radiates, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A maximum 100 percent disability rating is warranted when there is unfavorable ankylosis of the entire spine. Id. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). A January 2017 private treatment record noted L5-S1 ankylosis. The Veteran was afforded a VA examination in May 2018. The Veteran reported pain when walking short distances, sitting on hard furniture, and turning over in bed. He reported daily flare-ups. He described functional loss as major difficulty getting up from a chair, bending over to pick something up, and maintaining his balance when standing up. The examiner was unable to complete range of motion testing because the Veteran had a severe imbalance and was a high fall risk if he had to go through range of motion testing. The examiner noted pain on rest and non-movement. The physical examination revealed no guarding or muscle spasm, full muscle strength, normal reflex exam, normal sensory exam, negative straight leg raising test, mild to moderate radiculopathy symptoms, and no ankylosis. The examiner noted that the Veteran’s intervertebral disc syndrome did not require physician prescribed bed rest. The examiner noted that the functional impact was the inability to bend, carry heavy items, or rotate his waist. The Veteran was afforded another VA examination in July 2020. The Veteran reported back pain and stiffness. He described his flare-ups as severe, lasting all day, and occurring four to five times per week. The flare-ups were precipitated by prolonged walking, standing, sitting, bending, and lifting. His functional impairment was described as back pain, stiffness, limited range of motion, as well as difficulty with heavy lifting, prolonged walking, and climbing stairs. Range of motion testing revealed forward flexion to 30 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees, each with pain. There was additional loss of function after three repetitions. The examination revealed forward flexion to 25 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. There was additional loss of function with repeated use over time. The examiner found that the range of motion with repeated use over time was forward flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. There was additional loss of function during flare-ups. The examiner described such loss in terms of range of motion and found forward flexion to 15 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees. The examiner noted that there was less movement than normal due to pain and stiffness. The physical examination also showed no guarding or muscle spasm of the thoracolumbar spine, full muscle strength, no muscle atrophy, a normal reflex exam, decreased sensation to light touch, positive straight leg raising test results, moderate radiculopathy symptoms, no ankylosis, pain on passive motion, and pain on non-weight bearing. The Veteran’s intervertebral disc syndrome did not require physician prescribed bed rest. The examiner found that the Veteran’s lumbar spine disorder impacted his ability to work due to back pain with prolonged walking, standing, and using the stairs. He was unable to walk more than five to ten minutes without pain. After reviewing all of the evidence of record, the Board finds that a higher rating is not warranted at any point during the period on appeal. The evidence does not demonstrate unfavorable ankylosis of the entire thoracolumbar spine. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Specifically, a review of the VA examinations reports and private treatment records does not indicate that unfavorable ankylosis of the entire thoracolumbar spine was present. The Board acknowledges the private treatment records showing L5-S1 ankylosis, however, for a higher rating the medical evidence would have to show that his entire thoracolumbar spine was ankylosed. Moreover, the VA examinations mostly revealed some degree of forward flexion. Additionally, the evidence does not demonstrate that the Veteran was prescribed bedrest by a physician for his lumbar spine disorder. Accordingly, a higher rating under The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. Furthermore, the Board finds that the evidence weighs against a finding that the Veteran has any additional neurological deficiency due to his lumbar spine disorder. The Veteran is currently in receipt of separate 20 percent ratings for bilateral lower extremity radiculopathy associated with his lumbar spine disorder. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, higher ratings for the Veteran’s lumbar spine disorder is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain throughout the period, however, the effect of the pain on the Veteran’s lumbar spine is contemplated in the currently assigned disability rating. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Therefore, the Board finds that the Veteran’s lumbar spine disorder does not warrant a disability rating in excess of 40 percent. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim, that doctrine is not applicable in the current appeal. See 38 U.S.C. § 5107 (b). 3. Entitlement to an initial rating in excess of 10 percent for right hip limitation of extension prior to December 30, 2019. Please see discussion in paragraph 5. 4. Entitlement to an initial compensable rating for right hip limitation of flexion prior to December 30, 2019. Please see discussion in paragraph 5. 5. Entitlement to an initial compensable rating for right hip impairment prior to December 30, 2019. The Veteran’s right hip limitation of extension has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5251 for limitation of extension of the thigh. Under Diagnostic Code 5251 a 10 percent disability rating, the maximum rating, is warranted if the Veteran’s thigh is limited to 5 degrees of extension. Id. The Veteran’s right hip limitation of flexion has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252 for limitation of flexion of the thigh. Under Diagnostic Code 5252, a 10 percent disability rating is warranted if the Veteran’s thigh is limited to 45 degrees of flexion. Id. A 20 percent disability rating is warranted if the Veteran’s thigh is limited to 30 degrees of flexion. Id. A 30 percent disability rating is warranted if the Veteran’s thigh is limited to 20 degrees of flexion. Id. A maximum disability rating of 40 percent is warranted if the Veteran’s thigh is limited to 10 degrees of flexion. Id. The Veteran’s right hip impairment has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5253 for impairment of the thigh. Under Diagnostic Code 5253, a 10 percent disability rating is warranted if the Veteran’s thigh rotation is limited, cannot toe-out, more than 15 degrees of the affected leg. Id. A 10 percent disability rating is also warranted if the Veteran’s thigh adduction is limited so that the Veteran cannot cross his/her legs. Id. A maximum disability rating of 20 percent is warranted if the Veteran’s thigh abduction is limited or lost beyond 10 degrees. Id. The Veteran was afforded a VA examination in May 2018. The Veteran described intermittent hip pain that worsened with weightbearing, after a low back epidural, and when turning over in his bed. Range of motion testing revealed flexion to 70 degrees, extension to 20 degrees, abduction to 45 degrees, adduction to 20 degrees, external rotation to 25 degrees, and internal rotation to 25 degrees. Adduction was not so limited that the Veteran could not cross his legs. There was no additional loss of function or range of motion after three repetition. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use or during flare-ups. The examiner noted pain and stiffness when bending or extending the hip. There was also pain with weight bearing and on passive motion. There was no evidence of pain on non-weight bearing. The physical examination also revealed full muscle strength, no muscle atrophy, and no ankylosis. A July 2018 private medical record showed that the Veteran presented with moderate to severe right hip pain. His level of pain varied depending on his activities. The physical examination revealed localized tenderness to palpation over the greater trochanter. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that higher disability ratings are not warranted for the Veteran’s service-connected right hip disorders during the period prior to December 30, 2019. With respect to the Veteran’s right hip limitation of extension, the Veteran is rated at the highest schedular rating possible for limitation of extension of the thigh. Therefore, a rating in excess of 10 percent for limitation is not available under Diagnostic Code 5251. As to the Veteran’s limitation of flexion the evidence does not show flexion limited to 45 degrees. The May 2018 VA examination report noted right hip flexion to 70 degrees. As such, a 10 percent rating is not warranted under Diagnostic Code 5252. With respect to the Veteran’s right hip impairment rated under Diagnostic Code 5253, the evidence does not show limitation of rotation to 15 degrees or limitation of adduction such that he cannot cross his legs. The May 2018 VA examiner found that rotation was limited to 25 degrees and that adduction was not limited such that the Veteran could not cross his legs. The Board has considered other diagnostic codes and there is no other diagnostic code that would afford the Veteran higher initial disability ratings. For the period prior to December 30, 2019, the evidence has not demonstrated ankylosis of the hip, a flail joint, or impairment of the femur; thus, Diagnostic Codes 5250, 5254, and 5255 do not apply. Since the preponderance of the evidence is against the claims, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claims of entitlement to higher initial disability ratings for the Veteran’s right hip disabilities must be denied. 6. Entitlement to a disability rating in excess of 20 percent for right ankle instability. The Veteran’s right ankle disorder has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, used to rate limitation of motion of the ankle. The Veteran’s right ankle disorder is currently rated as 20 percent disabling for marked limitation of motion. A 20 percent rating is the highest schedular rating possible for limitation of motion of the ankle under Diagnostic Code 5271. Ankylosis of an ankle warrants a 20 percent evaluation if it is in plantar flexion, at less than 30 degrees. A 30 percent evaluation is warranted if the ankylosis is in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A 40 percent evaluation is warranted if the ankylosis is in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 20 percent for his service-connected right ankle disorder. A review of the April 2018 and July 2020 VA examination reports shows that at worst, dorsiflexion was limited to 5 degrees and plantar flexion to 10 degrees. The July 2020 VA examiner found that the right ankle range of motion was additionally limited with during flare-ups with dorsiflexion to 5 degrees and plantar flexion to 5 degrees. Moreover, the VA examination reports showed that there was no ankylosis of the right ankle. There is also no evidence that the right ankle disorder was manifested by malunion of the tibia and fibula with marked ankle disability. Therefore, the Veteran does not meet the schedular criteria for a rating higher than 20 percent for his right ankle disorder. 38 C.F.R. § 4.71a, Diagnostic Codes 5262 and 5270. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, higher ratings for the Veteran’s right ankle disorder is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain throughout the period, however, the effect of the pain in the Veteran’s right ankle is contemplated in the currently assigned disability rating. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Therefore, the Board finds that the Veteran’s right ankle disorder does not warrant a disability rating in excess of 20 percent. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim, that doctrine is not applicable in the current appeal. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. The claim of entitlement to an initial rating in excess of 10 percent for right knee degenerative arthritis prior to May 13, 2019, is remanded. The medical records are inconsistent as to whether the Veteran had right knee instability during the period prior to May 13, 2019. A May 2017 private medical record found that the Veteran had ligament instability and would benefit from an unloader brace. A May 2018 private medical record included a physical examination of the knee that showed valgus instability. However, a May 2018 VA examination report noted that joint stability testing did not show joint instability. The Board finds that a remand is required to obtain a medical opinion to reconcile the conflicting medical findings related to right knee instability. 2. The claim of entitlement to an initial rating in excess of 70 percent for right total hip arthroplasty from February 1, 2021, is remanded. As discussed above, the Veteran underwent a right total hip replacement on December 30, 2019. In a June 2020 rating decision, the RO assigned a 100 percent rating from December 30, 2019 to January 31, 2021. See 38 C.F.R. § 4.30 (2019). The RO assigned a 30 percent rating following the period of convalescence and later increased the rating from 30 percent to 70 percent, effective February 1, 2021. See 38 C.F.R. § 4.71a, Diagnostic Code 5054 (2019). The Veteran underwent a VA examination in July 2020, during the Veteran’s current period of convalescence. The Board finds that a remand is required to schedule the Veteran for another VA examination no sooner than February 1, 2020. The matters are REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the RO or the AMC should obtain a VA medical opinion by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected right knee disorder. Following a review of the relevant records and lay statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran had right knee instability during the relevant period from February 22, 2018 to May 12, 2019. If the examiner finds that the Veteran had right knee instability, the examiner must determine whether the instability was slight, moderate, or severe. The examiner must reconcile the private treatment records showing right knee instability and the May 2018 VA examination report showing no right knee instability. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Then, the RO or the AMC should afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected right hip disorder. The examination must occur no sooner than February 1, 2021. All pertinent evidence of record should be made available to and reviewed by the examiner. All necessary studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes, to specifically include the results of range of motion testing for pain on both active and passive motion, as well as on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. Furthermore, if any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. N. Nolley, 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.