Citation Nr: 21003693 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 18-06 526 DATE: January 22, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for degenerative changes of the lumbar spine is denied. Entitlement to an initial rating in excess of 10 percent for right hip extension is denied. FINDINGS OF FACT 1. The Veteran’s degenerative changes of the lumbar spine was manifested by, at worst, forward flexion of the thoracolumbar spine to 40 degrees in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis, intervertebral disc syndrome (IVDS) requiring medically prescribed bedrest or associated objective neurological abnormalities other than right lower extremity neuropathy and left lower extremity neuropathy. 2. The Veteran’s right hip extension was manifested by, at worst, extension to 15 degrees, at worst, due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis, flail joint, or impairment of the femur. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for degenerative changes of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for an initial rating in excess of 10 percent for right hip extension have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.404, 4.45, 4.59, 4.71a, Diagnostic Code 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1987 to November 1990. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Atlanta, Georgia. In April 2019, the Board issued a decision denying entitlement to increased initial ratings for degenerative changes of the lumbar spine and right hip extension. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 Order, the Court granted a Joint Motion for Partial Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion. This case was most recently before the Board in August 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the Board directed the AOJ to obtain additional VA examinations with regard to the Veteran’s claims. On remand, such VA examinations were conducted. Thus, the AOJ substantially complied with the August 2020 Board remand directives. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The case has now been returned to the Board for appellate action. The Board notes that service connection is currently in effect for right hip abduction, right hip flexion, bilateral lower extremity radiculopathy associated with the Veteran’s lumbar spine disorder. In the June 2017 rating decision, the AOJ denied entitlement to increased ratings for right hip abduction and flexion. In the April 2019 Board decision, entitlement to service connection for the bilateral lower extremity radiculopathy was granted, and initial ratings and effective dates were assigned. To date, the Veteran has not submitted notice of disagreements with these decisions; and the Board notes that the July 2017 notice of disagreement specifically limited his appeal to the limitation of extension of the right hip. Accordingly, the Board finds the issues are limited to entitlement to increased initial ratings for the lumbar spine disorder and right hip extension. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509–10 (2007). The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings 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). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the veteran’s case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Veteran’s degenerative changes of the lumbar spine is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. Under the General Rating Formula for Rating Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 20 percent 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 is not greater than 120 degrees; or when there are muscle spasms 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 rating is warranted when there is evidence of favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine is 30 degrees or less. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Id. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 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. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See Note (2); see also Plate V. The Veteran’s right hip extension is rated under Diagnostic Code 5251. 38 C.F.R. § 4.71a. Diagnostic Code 5251 affords a single 10 percent disability based on limitation of extension of the thigh when extension is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Also applicable to the hip and thigh are Diagnostic Codes addressing ankylosis, flail joint, and impairment of the femur (nonunion, false joint, or malunion). 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255. As is noted below, the Veteran does not show such pathology, and therefore, these Diagnostic Codes to not apply in this matter. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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 With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. 1. Degenerative Changes of the Lumbar Spine The Veteran asserts that his lumbar spine disorder is more severe than currently contemplated by the current rating assigned. Specifically, the Veteran asserted in his July 2017 notice of disagreement that he should have been afforded X-ray testing to determine the current severity of his lumbar spine disorder. Turning to the evidence, a March 2017 VA treatment record indicates the Veteran had a steady gait and ambulated without difficulty. The Veteran was afforded a VA examination in April 2017. At that time, he reported he experienced flare-ups of the thoracolumbar spine that were initiated with “no one particular cause,” and that if he stood or at for long periods of time. He stated that if he were sitting and started to get up, the pain would “hit.” The pain on a good day was categorized as a three to four out of ten pain intensity; and on bad days the pain was categorized as seven or eight out of ten pain intensity. The Veteran reported functional loss or functional impairment of the thoracolumbar spine as difficulty walking, and stated he “can’t move to speak of.” Upon physical examination, range of motion measurements were as follows: forward flexion was to 80 degrees; extension was to 10 degrees; right lateral flexion was to 15 degrees; left lateral flexion was to 20 degrees; and bilateral lateral rotation were to 30 degrees each. Range of motion itself contributed to a functional loss due to a decrease in movement. Pain was noted on examination on rest and on non-movement on all ranges of motion. There was evidence of pain with weight-bearing. There was objective evidence of tenderness noted in the mid thoracic and lower lumbar area; no paraspinous tenderness noted; and the sacroiliac joints and hips were nontender. The Veteran was able to perform repetitive-use testing with at least three repetition 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 neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time because the Veteran was not examined over a period of time. The Veteran was not examined during a flare-up and the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during a flare-up. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during a flare-up because the Veteran was not examined during a flare-up. The April 2017 VA examiner noted that the Veteran had guarding that resulted in an abnormal gait or abnormal spinal contour. Additional factors contributing to the disability included less movement than normal due to ankylosis, adhesions, etc.; weakened movement due to muscle or peripheral nerve injury, etc., disturbance of locomotion; interference with sitting; and interference with standing. Muscle strength testing showed active movement against some resistance in the bilateral hips. He did not have ankylosis of the spine. There were no other neurologic abnormalities or findings related to the thoracolumbar spine found. The Veteran did not have IVDS. He endorsed the regular use of a cane as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The Veteran had pain with weight-bearing, nonweight-bearing, passive range of motion, and active range of motion. The examiner noted the Veteran had an unsteady gait and used a cane and held onto objects, that tenderness was not noted, that reflexes were intact, that he unable to heel walk, difficulty noted with toe walk and tandem walk, that he could cross legs but used hands to assist, that he able to squat with difficulty getting back up and that he was able to arise from lying, to sitting and able to standing positions slowly and without difficulty. Diagnostic imaging studies showed arthritis, without thoracic vertebral fracture with loss of 50 percent or more of height. The examiner noted the Veteran’s lumbar spine disorder did not impact his ability to work. The Veteran was afforded another VA examination in November 2020. At that time, he endorsed flare-ups of the thoracolumbar spine described as worsening pain and stiffness. He reported functional loss or functional impairment of the thoracolumbar spine included trouble bending, lifting, pushing, pulling, climbing, squatting, standing or sitting for prolonged periods due to pain, stiffness, and lack of range of motion. Current symptoms included aches, pains, and stiffness. Upon physical examination, range of motion measurements were as follows: forward flexion was to 40 degrees; extension was to 5 degrees; bilateral lateral flexion and bilateral lateral rotation were to 10 degrees each. Range of motion itself contributed to a functional loss due to trouble bending, lifting, pushing, pulling, climbing, squatting, standing or sitting for prolonged periods due to a lack of range of motion. Pain was noted on rest and non-movement and there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissues of the thoracolumbar spine. There was evidence of pain with weight-bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions, without 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 neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner was able to describe in terms of range of motion after repetitive-use as follows: forward flexion was to 40 degrees; extension was to 5 degrees; bilateral lateral flexion and bilateral lateral rotation were to 10 degrees each. The Veteran was not examined immediately during a flare-up; and the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during a flare-up. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during a flare-up. The examiner was able to describe in terms of range of motion during a flare-up as follows: forward flexion was to 40 degrees; extension was to 40 degrees; bilateral lateral flexion and bilateral lateral rotation were to 10 degrees each. The November 2020 VA examination noted that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Additional factors contributing to a disability included less movement than normal due to ankylosis, limitation or blocking, adhesions, etc., instability of station, disturbance of locomotion, interference with sitting, interference with standing and trouble with bending, lack of range of motion lifting, pushing, pulling, climbing, squatting, standing, or sitting for prolonged periods due to pain, stiffness. Straight leg raising test was positive for the right side. There was no ankylosis. The Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition. The Veteran had IVDS that did not require bedrest prescribed by a physician and treatment by a physician in the past 12 months. He endorsed the constant use of a cane as a normal mode of locomotion due to his osteoarthritis of the back and IVDS. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. Diagnostic imaging studies showed arthritis, without thoracic vertebral fracture with loss of 50 percent or more of height. The examiner noted the Veteran’s lumbar spine disorder impacted his ability to work due to trouble bending, lifting, pushing, pulling, climbing, squatting, standing or sitting for prolonged pain due to pain, stiffness, and lack of range of motion. There was objective evidence of pain when used in nonweight-bearing. Passive range of motion texting could not be performed or was not medically appropriate. The examiner noted that the diagnosis of lumbar spine degenerative changes meant that the range of motion was limited and pain was increased, as well as inflammation, mis-alignment of the joints; thus causing osteoarthritis of the back, and this could pinch the nerves leading to radicular pains and/or IVDS. In a November 2020 VA opinion, the examiner noted that the need to speculate for the examination, that was not conducted during a flare-up or following repetitive-use, was due to a deficiency in the state of the general medical knowledge; and noted that no one could respond given medical science and the known facts. Further review of the record shows that the Veteran receives VA treatment and from private treatment providers and for various disabilities, to include his lumbar spine disorder. However, there is no indication from the treatment notes of record that the Veteran has reported back symptoms that are worse than those noted above. Based on the foregoing, the Board finds that an initial rating in excess of 20 percent is not warranted for his degenerative changes of the lumbar spine. As the Veteran was shown on examination, his forward flexion was to 40 degrees, at worst. There is no clinical evidence of file of a limitation in forward flexion to 30 degrees or less or of any ankylosis of the thoracolumbar spine during any part of the appeal period, even with consideration of painful motion and other factors discussed in DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. None of the clinical records reflect such criteria as required for a higher rating based on range of motion. Id. As discussed in the November 2020 VA examination report, range of motion testing found forward flexion to 40 degrees, at worst. The Board notes that the Veteran has described painful motion of the spine and has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, supra. However, there is no objective evidence that this painful motion has resulted in measurable functional impairment. In this regard, the Veteran reported pain but was not shown to have pain on motion that resulted in any additional loss of range of motion at his April 2017 and November 2020 VA examinations, nor was any additional functional loss shown. Thus, even considering the Veteran's subjective complaints of pain, the evidence of record does not support any additional limitation of function in response to repetitive motion or flare-ups that would support a rating in excess of the 20 percent assigned during the appeal period. See DeLuca, supra; Mitchell, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran's examinations have been consistently negative for ankylosis and the Veteran has retained range of motion in the lumbar spine. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Therefore, the Board finds that, at no time during the appeal period has the Veteran's service-connected lumbar spine degenerative changes resulted in ankylosis warranting a higher rating. The Board has considered whether a higher evaluation could be assigned for any period on appeal under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In this case, there is no evidence that the Veteran has had incapacitating episodes as defined by VA regulations. Rather, the Veteran has not alleged, nor does the evidence show, that the Veteran has a diagnosis of IVDS that resulted in medically prescribed bedrest. Specifically, the Veteran was shown to have IVDS at his November 2020 VA examination, but did not require medically prescribed bedrest. At all other times, the Veteran did not have a diagnosis of IVDS. Accordingly, a higher or separate rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has bladder impairment or bowel impairment as a result of his service-connected lumbar degenerative changes. The Veteran is already in receipt of separate ratings for right and left lower extremity radiculopathy. Therefore, the Board finds that, at no time during the appeal period, has the Veteran's service-connected lumbar degenerative changes resulted in neurological impairment. Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court of Appeals for Veterans’ Claims (Court’s) holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA examiners did not test the opposite joint; however, the spine does not have an opposite joint. The April 2017 and November 2020 VA examiners indicated there was no interference with weight-bearing. Pain was noted on examination. Regarding repeated use over time, the Board notes that VA examiners conducted repetitive-use testing and concluded that there was no additional limitation in range of motion. Regarding flare-ups, the Board acknowledges that the VA examiner was not able to provide an opinion regarding additional functional impairment during flare-ups, however, the Veteran was able to describe his symptoms during a flare-up and the impact of such. Specifically, the examiners elicited information from the Veteran regarding the severity, frequency, duration and functional loss manifestations of flare-ups. Therefore, the Board finds that all information required for rating purposes was provided. In this regard, the Board notes that the examiners clearly noted that the Veteran specifically reported pain, limited prolonged sitting, stiffness, and increased back pain. There is no other indication from the record, to include the Veteran’s own statements, that he experiences additional decreased range of motion, weakness, or incoordination during flare-ups or following repeated use other than shown above. As the Veteran has not endorsed those symptoms, the Board finds the examinations of record to be adequate for rating purposes. See Correia v. McDonald, supra; see also Sharp v. Shulkin, supra. The Veteran’s belief that he is entitled to a higher rating for his lumbar spine disorder is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination report and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran’s general belief that he is entitled to a higher rating. The Board acknowledges the statements of the Veteran, and the March 2020 Court Order regarding the adequacy of the April 2017 VA examination report; and that such VA examinations is inadequate because the examiners failed to provide information regarding flare-ups and after repetitive-use and/or symptoms during such as required. The Board also acknowledges the statements of the Veteran that additional x-ray testing results may show that his lumbar spine disorder is worse than contemplated by the current rating assigned. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, supra. The Board finds, however, that neither the Veteran’s statements, nor medical evidence demonstrates that the criteria for higher ratings have been met during any period on appeal. Specifically, the Board notes that the November 2020 VA opinion indicates that the need to speculate for the examination because the examination was not conducted during a flare-up or following repetitive-use, was due to a deficiency in the state of the general medical knowledge; and noted that no one could respond given medical science and the known facts. In addition, and as noted above, the Veteran was able to describe his symptoms during a flare-up and the impact of such. Specifically, the examiners elicited information from the Veteran regarding the severity, frequency, duration and functional loss manifestations of flare-ups. The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his back. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. These arguments are therefore without merit. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned, and the disability has been stable throughout the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran’s current employment status is unknown. Moreover, he has not asserted that he is unable to obtain and maintain employment due to his service connected lumbar spine degenerative changes. As such, Rice is inapplicable in this case. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating higher than 20 percent for his lumbar spine disorder, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Right Hip Extension The Veteran asserts that his right hip extension is more severe than currently contemplated by the current rating assigned. Specifically, the Veteran asserted in his July 2017 notice of disagreement that he cannot cross his legs unless he uses force with his hands. Turning to the evidence, the Veteran was afforded a VA examination in April 2017. At that time, the Veteran reported flare-ups of the right hip that were initiated with “nothing in particular”; and that it was sometimes worse if he slept on his side. He reported sitting and standing would also cause a flare-up. His right hip pain was categorized as a three out of ten pain intensity on a good day and a six out of ten pain intensity on a bad day. The Veteran reported functional loss or functional impairment of the right hip described as difficulty with walking. Upon physical examination, range of motion measurements were as follows: flexion was to 110 degrees; extension was to 10 degrees; abduction was to 30 degrees; and adduction was to 20 degrees. Adduction was not limited such that the Veteran could not cross his legs. Internal and external rotation were to 25 degrees each. Range of motion itself contributed to a functional loss due to decreased movement. Pain was noted on examination on rest and non-movement, and was noted on all range of motion movements. There was evidence of pain with weight-bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissues. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions 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 neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time because the Veteran was not examined over a period of time. The Veteran was not examined during a flare-up and the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during a flare-up. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during a flare-up because the Veteran was not examined during a flare-up. The April 2017 VA examination noted that muscle strength testing showed active movement against some resistance in the right hip flexion, extension, and abduction; and there was a reduction in muscle strength. There was no muscle atrophy. There was no ankylosis. The Veteran did not have malunion or nonunion of femur, flail hip joint or leg length discrepancy. The Veteran had pain with weight-bearing, nonweight-bearing, passive range of motion, and active range of motion. The examiner noted the Veteran had an unsteady gait and used a cane and held onto objects, tenderness was not noted, reflexes were intact, unable to heel walk, difficulty noted with toe walk and tandem walk, could cross legs but used hands to assist, able to squat with difficulty getting back up, able to arise from lying, to sitting, to standing positions slowly and without difficulty, able to put on socks and shoes without difficulty, extremities were warm and pulses were palpable. The Veteran endorsed the regular use of a cane as an assistive device as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Diagnostic imaging testing showed degenerative arthritis of the right hip. The examiner noted the Veteran’s right hip did not impact his ability to work. The Veteran stated that he continued to have discomfort in his hips. The Veteran was afforded another VA examination in November 2020. At that time, he endorsed flare-ups of the right hip described as worsening pains and stiffness. He reported functional loss or functional impairment of the right hip included trouble with climbing, squatting, bending due to lack of range of motion, and pain. Current symptoms included ache and sharp pains. Upon physical examination, range of motion measurements were as follows: flexion was to 100 degrees; extension was to 15 degrees; abduction was to 30 degrees; adduction was to 15 degrees; external rotation was to 40 degrees; and internal rotation was to 20 degrees. Adduction was limited such that the Veteran could not cross his legs. Range of motion itself contributed to a functional loss due to trouble with climbing, squatting, and bending due to lack of range of motion. Pain was noted on rest and non-movement and there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissues of the right hip. There was evidence of pain with weight-bearing. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, without 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 neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner was able to describe in terms of range of motion after repetitive-use as follows: flexion was to 100 degrees; extension was to 15 degrees; abduction was to 30 degrees; adduction was to 15 degrees; external rotation was to 40 degrees; and internal rotation was to 20 degrees. The Veteran was not examined immediately during a flare-up; and the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during a flare-up. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during a flare-up. The examiner was able to describe in terms of range of motion during a flare-up as follows: flexion was to 100 degrees; extension was to 15 degrees; abduction was to 30 degrees; adduction was to 15 degrees; external rotation was to 40 degrees; and internal rotation was to 20 degrees. The November 2020 VA examination noted that the additional factors contributing to the disability included less movement than normal, instability of station, disturbance of locomotion, interference with sitting, interference with standing, trouble with climbing, squatting, bending due to lack of range of motion and pain. Muscle strength testing showed active movement against some resistance in the right hip flexion, extension, and abduction. There was a reduction in muscle strength. The Veteran did not have muscle atrophy. There was no ankylosis. The Veteran did not have malunion or nonunion of femur, flail hip joint, or leg length discrepancy. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran endorsed the constant use of a cane as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Diagnostic imaging testing results showed degenerative or traumatic arthritis of the right hip. The examiner noted the Veteran’s right hip impacted his ability to work due to trouble with climbing, squatting, bending due to lack of range of motion, and pain. There was objective evidence of pain when the right hip was used in nonweight-bearing. Passive range of motion was the same as active range of motion. In a November 2020 VA opinion, the examiner noted that the need to speculate for the examination, that was not conducted during a flare-up or following repetitive-use, was due to a deficiency in the state of the general medical knowledge; and noted that no one could respond given medical science and the known facts. Further review of the record shows that the Veteran receives VA treatment and from private treatment providers and for various disabilities, to include his right hip extension. However, there is no indication from the treatment notes of record that the Veteran has reported right hip symptoms that are worse than those noted above. Based on the foregoing, the Board finds that an initial rating in excess of 10 percent is not warranted for right hip extension. As the Veteran was shown on examination, his range of motion was at worst, right hip extension to 15 degrees. The Board notes that the Veteran has described painful motion of the right hip and has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, supra. However, there is no objective evidence that this painful motion has resulted in measurable functional impairment. In this regard, the Veteran reported pain but was not shown to have pain on motion that resulted in any additional loss of range of motion at his April 2017 and November 2020 VA examinations, nor was any additional functional loss shown. Thus, even considering the Veteran's subjective complaints of pain, the evidence of record does not support any additional limitation of function in response to repetitive motion or flare-ups that would support a rating in excess of the 10 percent assigned during the appeal period. See DeLuca, supra; Mitchell, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59. In addition, the Board notes that Diagnostic Code 5251 provides a maximum schedular rating of 10 percent for right hip extension limited to 5 degrees. Id. In this case, the Veteran’s right hip flexion has been assigned the maximum schedular rating available under Diagnostic Code 5251 for hip extension. As such, there is no legal basis upon which to award a higher schedular rating for right hip extension. The Board has also considered other potentially applicable diagnostic codes; however, the Veteran’s right hip is not shown to involve any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule, to specifically include ankylosis, flail joint, or impairment of the femur. As such, a rating under Diagnostic Codes 5250, 5254, or 5255 is not appropriate. Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. In this case, the VA examiners did test the opposite joint. The April 2017 and November 2020 VA examiners indicated there was no interference with weight-bearing. Pain was noted on examination. Regarding repeated use over time, the Board notes that VA examiners conducted repetitive-use testing and concluded that there was no additional limitation in range of motion. Regarding flare-ups, the Board acknowledges that the VA examiner was not able to provide an opinion regarding additional functional impairment during flare-ups, however, the Veteran was able to describe his symptoms during a flare-up and the impact of such. Specifically, the examiners elicited information from the Veteran regarding the severity, frequency, duration and functional loss manifestations of flare-ups. Therefore, the Board finds that all information required for rating purposes was provided. In this regard, the Board notes that the examiners clearly noted that the Veteran specifically reported pain, limited prolonged sitting, stiffness, and increased pain; and difficulty with climbing and squatting. There is no other indication from the record, to include the Veteran’s own statements, that he experiences additional decreased range of motion, weakness, or incoordination during flare-ups or following repeated use other than shown above. As the Veteran has not endorsed those symptoms, the Board finds the examinations of record to be adequate for rating purposes. See Correia v. McDonald, supra; see also Sharp v. Shulkin, supra. The Veteran’s belief that he is entitled to a higher rating for his right hip extension is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination report and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran’s general belief that he is entitled to a higher rating. The Board acknowledges the statements of the Veteran, and the March 2020 Court Order regarding the adequacy of the April 2017 VA examination report; and that such VA examinations is inadequate because the examiners failed to provide information regarding flare-ups and after repetitive-use and/or symptoms during such as required. The Board also acknowledges the statements of the Veteran that he could not cross his legs. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, supra. The Board finds, however, that neither the Veteran’s statements, nor medical evidence demonstrates that the criteria for higher ratings have been met during any period on appeal. Specifically, the Board notes that the November 2020 VA opinion indicates that the need to speculate for the examination because the examination was not conducted during a flare-up or following repetitive-use, was due to a deficiency in the state of the general medical knowledge; and noted that no one could respond given medical science and the known facts. In addition, and as noted above, the Veteran was able to describe his symptoms during a flare-up and the impact of such. Specifically, the examiners elicited information from the Veteran regarding the severity, frequency, duration and functional loss manifestations of flare-ups. The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his right hip. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. These arguments are therefore without merit. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned, and the disability has been stable throughout the appeal period. Hart v. Mansfield, supra. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, supra. As noted above, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, supra. In Rice, the Court held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran’s current employment status is unknown. Moreover, he has not asserted that he is unable to obtain and maintain employment due to his service connected right hip extension. As such, Rice is inapplicable in this case. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to an initial rating in excess of 10 percent for the Veteran’s right hip extension is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.