Citation Nr: 21065827 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 13-13 516 DATE: October 27, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to September 6, 2017, for right knee traumatic arthritis with history of patellofemoral syndrome, is denied. Entitlement to a rating in excess of 10 percent prior to September 6, 2017, for left knee traumatic arthritis with history of patellofemoral syndrome, is denied. Entitlement to a 30 percent rating from September 6, 2017, to January 30, 2018, for limitation of extension, right knee degenerative arthritis, is granted. Entitlement to a 30 percent rating from March 1, 2019, to May 14, 2019, and from July 1, 2020, for right total knee arthroplasty with revision, is denied. Entitlement to a rating in excess of 20 percent from September 6, 2017, for limitation of extension, left knee degenerative arthritis, is denied. Entitlement to a separate rating of 10 percent for patellar instability of the right knee is granted. Entitlement to a separate rating of 10 percent for patellar instability of the left knee is granted. Entitlement to a compensable rating for right tibial periostitis is denied. Entitlement to a compensable rating for left tibial periostitis is denied. Entitlement to a rating in excess of 10 percent for right hip bursitis is denied. Entitlement to a rating in excess of 10 percent for left trochanteric bursitis is denied. Entitlement to a compensable rating from October 14, 2020, for right thigh impairment is denied. Entitlement to a compensable rating from October 14, 2020, for left thigh impairment is denied. Entitlement to a compensable rating from October 14, 2020, for limitation of extension, left thigh, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities beginning September 6, 2017, is granted. REMANDED Entitlement to a TDIU prior to September 6, 2017, is remanded. FINDINGS OF FACT 1. From September 6, 2017, right knee extension was limited to no more than 20 degrees and left knee extension was limited to no more than 15 degrees. 2. Prior to September 6, 2017, right and left knee extension was not limited to 10 degrees or more. 3. Throughout the appeal period, right and left knee flexion was not limited to 45 degrees or less. 4. From March 1, 2019, to May 14, 2019, and from July 1, 2020, the Veteran right knee disability was productive of intermediate degrees of residual pain. 5. Right and left knee traumatic arthritis with history of patellofemoral syndrome were productive of no more than slight lateral instability. 6. Throughout the appeal, the Veteran's right and left tibial periostitis were productive of painful motion without evidence of slight knee or ankle disability. 7. Throughout the appeal period, the Veteran's right hip bursitis and left trochanteric bursitis were productive of painful motion. 8. From September 6, 2017, the Veteran has had a combined rating of at least 70 percent, with at least one disability rated at 40 percent or more, and his service-connected disabilities have prevented him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to September 6, 2017, for right knee traumatic arthritis with history of patellofemoral syndrome, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5261 (2020). 2. The criteria for a rating in excess of 10 percent prior to September 6, 2017, for left knee traumatic arthritis with history of patellofemoral syndrome, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5261 (2020). 3. The criteria for a 30 percent rating from September 6, 2017, to January 30, 2018, for limitation of extension, right knee degenerative arthritis, have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5261 (2020). 4. The criteria for a 30 percent rating from March 1, 2019, to May 14, 2019, and from July 1, 2020, for right total knee arthroplasty with revision, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5055 (2020). 5. The criteria for a rating in excess of 20 percent from September 6, 2017, for limitation of extension, left knee degenerative arthritis, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5261 (2020). 6. The criteria for a separate rating of 10 percent for right knee instability have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020). 7. The criteria for a separate rating of 10 percent for left knee instability have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020). 8. The criteria for a compensable rating for right tibial periostitis have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Code 5262 (2020). 9. The criteria for a compensable rating for left tibial periostitis 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Code 5262 (2020). 10. The criteria for a rating in excess of 10 percent for right hip bursitis have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Code 5019 (2020). 11. The criteria for a rating in excess of 10 percent for left trochanteric bursitis have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Code 5099-5019 (2020). 12. The criteria for a compensable rating from October 14, 2020, for right thigh impairment have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Code 5019-5253 (2020). 13. The criteria for a compensable rating from October 14, 2020, for left thigh impairment have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Code 5019-5253 (2020). 14. The criteria for a compensable rating from October 14, 2020, for limitation of extension, left thigh, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Code 5019-5251 (2020). 15. The criteria for entitlement to a TDIU from September 6, 2017, have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the United States Marine Corps from July 1984 to April 1988 and active military service from March 1995 to May 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2010 and February 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in May 2018 and remanded for additional development. In a May 2021 rating decision, the RO granted entitlement to service connection for right shoulder injury residuals, which constitutes a full grant of the benefit sought on appeal. Hence, the matter ia no longer in appellate status. The issues currently on appeal have been returned to the Board for further appellate action. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Increased Ratings 1. Right and Left Knee The Veteran has asserted that his right and left knee traumatic arthritis with history of patellofemoral syndrome ("knee disabilities") are worse than that contemplated by the currently assigned ratings. In July 2009, the Veteran was afforded a VA examination. He reported constant and sharp bilateral knee pain, worsening with weight-bearing and movement. He experienced flare-ups and could not walk long distances without increased pain. Upon physical evaluation, active left knee flexion was from 12 to 70 degrees. Passive left knee flexion was to 90 degrees. His left knee extension approximated to 12 degrees (but ranged from 8 to 24 degrees). Active right knee flexion was from 4 degrees to 60 degrees. Passive right knee flexion was from 4 degrees to 90 degrees. His loss of left knee extension approximated 12 degrees (but ranged from 8 to 24 degrees). There was objective evidence of pain at the end of flexion, bilaterally. Following repetitive use, left knee flexion was from 12 degrees to 68 degrees. The Veteran's resting left knee flexion was 72 degrees. Following repetitive use, active right knee flexion was 12 degrees to 74 degrees. Passive right knee flexion was to 94 degrees. The Veteran's resting right knee flexion was 64 degrees. The examiner commented that the Veteran's range of motion findings were due to the Veteran's minimal or decreased effort. There was objective evidence of mild pain at the end of flexion, bilaterally, after repeated use. There was objective evidence of pain with pressing downward on the right patella. Additionally, there was objective evidence of right knee joint tenderness. Joint stability tests were normal, bilaterally. He wore a left knee brace and used a cane for balance. The Veteran underwent an orthopedic consultation at a VA medical center (VAMC) in December 2009. He reported bilateral knee pain, giving way, and pain with activity. Upon physical evaluation, active flexion was to 125 degrees and passive flexion was to 130 degrees with pain. Additionally, there was anterior knee pain beyond 90 to 100 degrees of knee flexion. The knees were stable. There was no pain or laxity noted with varus or valgus stress. There was no evidence of joint effusion. In June 2012, the Veteran had a VA examination. He reported increased bilateral knee pain and instability. He stated he could only walk a block before his knee gave out. He described daily flare-ups of sharp pain. Upon physical evaluation, right knee flexion was to 125 degrees with objective evidence of pain. Left knee flexion was to 100 degrees with objective evidence of pain. Right and left knee extension were normal without objective evidence of pain. The examiner noted that the Veteran's range of motion was affected by his hypersensitivity and effort. Following repetitive use, right and left knee flexion and extension remained the same. However, there was functional loss with pain on movement, bilaterally. There was evidence of reduced muscle strength with extension in the Veteran's left knee. Joint stability test results were normal. He did not have any evidence or history of recurrent patellar subluxation/dislocation. The examiner indicated that the Veteran had a meniscal condition of the left knee with meniscal tear. Residuals of a left knee meniscectomy included pain, burning, and instability. He regularly used a cane and brace for bilateral knee stability. A September 2012 VAMC X-ray revealed a good deal of articular cartilage left in the Veteran's right and left knees. There was no evidence of effusion. Ligaments were stable. He had full range of motion of the bilateral knee joint with complaints of pain. In June 2014, the Veteran was provided a VA examination. He reported that his right knee was worse than the left with swelling, giving out, and occasional locking up. He complained of constant, daily pain. He stated that swimming and walking aggravated his knees. He denied any flare-ups. Upon physical evaluation, right and left knee flexion and extension were normal without objective evidence of pain. Following repetitive use, right and left knee flexion and extension remained the same. The Veteran had tenderness or pain to palpation of the right knee joint. There was no evidence of muscle weakness, atrophy, or ankylosis. He did not have any evidence or history of recurrent patellar subluxation/dislocation. Joint stability test results were normal. He had a left knee meniscal condition. He regularly used a cane and braces for giving way of the knees. The Veteran had a VA examination in September 2017 followed by an addendum opinion obtained in October 2017. He reported bilateral knee pain, giving way, locking up, and catching when he attempted to straighten his knee. He added that his right knee gave out constantly. He described flare-ups of daily pain and functional loss with prolonged standing and walking, stairs, bending, squatting, and running. Upon physical evaluation, right knee flexion was from 20 to 130 degrees. Right knee extension was 130 to 20 degrees. Left knee flexion was from 15 to 130 degrees. Left knee extension was 130 to 15 degrees. There was objective evidence of painful extension which caused functional loss. The Veteran had to stop due to pain. There was evidence of bilateral knee pain with passive range of motion, weight bearing, non-weight bearing; bilateral knee crepitus; and right knee tenderness. Following repetitive use, he did not have any additional functional loss or range of motion. There was evidence of reduced muscle strength in the Veteran's right and left knees without any muscle atrophy. During the muscle strength test, the examiner observed that the Veteran's knees shook after standing for a short time or even while sitting. The Veteran did not have ankylosis. He did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability test results were normal. The examiner indicated that the Veteran had bilateral meniscal conditions with meniscal tear, frequent episodes of joint locking and pain, and stiffness. The examiner noted that the Veteran was unstable on his legs and a high fall risk. The Veteran regularly used a cane for stability. In March 2020, the Veteran underwent a VA examination. He reported constant pain, giving way, and limited motion of the right knee. He experienced constant pain, popping, and grinding of the left knee. He denied any flare-ups but described functional loss with getting up, standing to sitting, getting on his knees, prolonged standing and walking is, and running. Upon physical evaluation, right knee flexion was from 10 to 135 degrees. Right knee extension was 135 to 10 degrees. Left knee flexion was from zero (0) to 130 degrees. Left knee extension was 130 to zero (0) degrees. There was objective evidence of painful flexion and extension which caused functional loss. There was evidence of pain with weight bearing, non-weight bearing, and on passive range of motion of the right knee. Following repetitive use, the Veteran did not have any additional functional loss or range of motion. The examiner indicated that pain significantly limited the Veteran's functional ability with repeated use over time. In this regard, right knee flexion was from 15 to 130 degrees. Right knee extension was 130 to 15 degrees. Left knee flexion was from 5 to 125 degrees. Left knee extension was 125 to 5 degrees. Additionally, the examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. There was no evidence of crepitus, muscle weakness, atrophy, or ankylosis. He did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability test results were normal. He did have a left knee meniscal condition with meniscal tear and frequent episodes of joint pain. Additionally, the Veteran had a total right knee joint replacement in 2018. The Veteran had a VA examination in October 2020. He complained of pain, grinding, and swelling. He described daily, moderate to severe flare-ups of the right and left knee that was precipitated by movement. He added that his right knee flare-ups were constant and left knee flare-ups varied. He reported functional loss, to include increased weakness and decreased mobility. Upon physical evaluation, right knee flexion was from 10 to 110 degrees. Right knee extension was 110 to 10 degrees. Left knee flexion was from zero (0) to 140 degrees. Left knee extension was 140 to zero (0) degrees. There was objective evidence of painful flexion and extension which did not cause any functional loss of the right knee. Further, there was objective evidence of painful flexion which did not cause any functional loss of the left knee. Following repetitive use, the Veteran had additional functional loss or range of motion of the right knee due to pain. In this regard, right knee flexion was from zero (0) to 100 degrees. Right knee extension was 100 to zero (0) degrees. However, the Veteran did not have any additional functional loss or range of motion of the left knee. The examiner indicated that pain significantly limited the Veteran's functional ability of the right knee with repeated use over time or flare-ups. In this regard, right knee flexion was from zero (0) to 100 degrees. Right knee extension was 100 to zero (0) degrees. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability of the left knee with repeated use over time or flare-ups. There was no evidence of crepitus, muscle weakness, atrophy, or ankylosis, bilaterally. He had a history of slight lateral instability of the right knee. Joint stability test results were normal, bilaterally. In August 2021, the Veteran was provided an additional VA examination for his service-connected right total knee arthroplasty with revision. Upon physical evaluation, right knee flexion was from to 105 degrees. Right knee extension was to 10 degrees. Passive range of motion remained the same. There was evidence of pain on active motion and weight bearing which caused functional loss. He was unable to stand or walk for extended periods or kneel and had difficulty rising from a squatted position or climbing stairs. Following repetitive use, the Veteran did not have any additional functional loss or range of motion. Additional factors contributing to the Veteran's right knee disability was swelling and intermittent edema. There was no evidence of crepitus, muscle atrophy, ankylosis or joint instability. A review of VAMC and private medical records showed that the Veteran has received additional treatment for his right and left knee disabilities. However, there is no indication from the medical records that his symptoms were manifestly different from the findings reported above. Based on the foregoing evidence, the Board finds that a staged rating is warranted. In this regard, the medical evidence of record show distinct times where his service-connected right and left knee disabilities exhibited symptoms that would warrant different ratings. The range of motion findings of record demonstrated right knee extension limited to 20 degrees and left knee extension limited to 15 degrees from September 6, 2017. Prior to September 6, 2017, the range of motion findings of record do not demonstrate right or left knee extension limited to 10 degrees or more. While the July 2009 VA examiner approximated that the Veteran's left knee extension was to 12 degrees, he noted that the Veteran showed minimal effort. Additionally, December 2009 VAMC records showed that the Veteran's extension was normal. Throughout the appeal period, the range of motion findings of record do not demonstrate knee flexion limited to 45 degrees or less. Therefore, a rating in excess of 10 percent prior to September 6, 2017, for limitation of motion of the right and left knees is not warranted. Further, a rating in excess of 20 percent rating from September 6, 2017, for limitation of extension of the left knee is not warranted. However, a 30 percent rating from September 6, 2017, to January 30, 2018, for limitation of extension of the right knee is warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Moreover, the Board does not find that a rating in excess of 30 percent is not warranted under for right total knee arthroplasty with revision from March 1, 2019, to May 14, 2019, and from July 1, 2020. In this regard, the Veteran had intermediate degrees of residual pain. However, there was no evidence that the Veteran had prosthetic replacement of the right knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity or intermediate degrees of residual weakness or limitation of motion rated by analogy. 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256, 5261, or 5262. Resolving reasonable doubt in the Veteran's favor, the Board finds that the weight of the evidence demonstrates that the Veteran had patellar instability. In this regard, he reported bilateral knee giving way and instability. He wore a knee brace and used a cane for balance and stability. Although the September 2017 VA examiner indicated that the Veteran was unstable on his knees and a high fall risk, there were no objective signs of right or left knee recurrent subluxation or lateral instability, right and left knee joint stability tests yielded normal findings, and the Veteran did not have a history of surgical ligament repair of either knee. Accordingly, the Board finds that a separate 10 percent rating, but no higher, for slight right and left patellar instability is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Consideration has been given to assignment of a higher or separate rating under another diagnostic code pertaining to the knee. However, there is no evidence of record showing that the Veteran has ankylosis or genu recurvatum. While the Veteran had a history of pain, giving way, locking, and swelling; there was no evidence of removal of, dislocation or effusion into the joint. As such, higher or separate ratings for the Veteran's right and left knee are not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5263 (2020). The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. However, there is no medical evidence of record that any pain, fatigability, incoordination, or weakness resulted in additional limitation of function to meet the criteria for a higher evaluation. DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, the effect of the pain on the Veteran's right and left knees is already contemplated by the assigned ratings. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). As such, even with consideration of all pertinent disability factors, there remains no reasonable basis for assignment of higher ratings. Accordingly, the Board finds that separate 10 percent ratings are warranted for right and left knee patellar instability for the entire appeal period. Further, a 30 percent rating from September 6, 2017, to January 30, 2018, for limitation of extension of the right knee is warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. However, the preponderance of the evidence is against the claims for ratings in excess of 10 percent prior to September 6, 2017, for limitation of motion of the right and left knees, and in excess of 20 percent from September 6, 2017, for limitation of extension of the left knee. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Right and Left Tibial Periostitis The Veteran has contended that his right and left tibial periostitis are worse than that contemplated by the currently assigned noncompensable ratings. In July 2009, the Veteran was afforded a VA examination. He reported constant pain in the right anterior pretibial area, worsening with weight-bearing. He stated that pain occurred in his left tibia when there was pressure or a blow to that area. He took medication for the pain. Upon physical evaluation, there was some mild pain with palpitation of the pretibial areas. The examiner noted that the Veteran's tibial periostitis did not result in decreased range of motion. The Veteran had a VA examination in June 2012. Upon physical evaluation, he had sharp pain to the bilateral tibial areas upon palpitation and with activity. The examiner indicated that the Veteran had minimal functional limitations and was capable of light or sedentary duties. In June 2014, the Veteran was provided a VA examination. He reported pain in both lower legs. He took ibuprofen as needed for the pain. The Veteran underwent a VA examination in September 2017. He reported constant lower leg pain and an inability to withstand anything that touched his legs. He endorsed flare-ups of pain and functional loss; however, it is unclear if it was associated with his legs. During the muscle strength test, the examiner observed that the Veteran's lower legs shook after standing for a short time or even while sitting. In November 2017, the Veteran testified that walking and stairs aggravated his legs, tendons, and shins. He was prescribed an anti-inflammatory drug which he occasionally took for the pain. VA medical opinions were obtained in December 2020 and March 2021. The examiner concluded that the Veteran did not complain of pain in the right and left tibial areas. Additionally, the examiner did not appreciate any residual pain. Instead, the Veteran's complaints were associated with his knees. Based on the foregoing, the Board finds that a higher rating is not warranted for right and left tibial periostitis. In this regard, the lay and medical evidence reflected that the Veteran's tibial periostitis was productive of painful motion alone without restriction of his knees or ankles or as contemplated under DeLuca. Accordingly, the Board finds that a compensable rating is not warranted for the entire period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5262. In addition, the evidence does not show that functional impairment was severe enough to result in range of motion reduced enough to warrant a compensable rating for the left leg disability. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 55. 3. Right and Left Hip The Veteran has asserted that his right hip bursitis and left trochanteric bursitis ("hip disabilities") are worse than that contemplated by the currently assigned ratings. In July 2009, the Veteran was afforded a VA examination. He reported intermittent, sharp left hip pain worsening with movement. Additionally, he described constant right hip pain worsening with movement and standing on his feet. He added that he had frequent flare-ups of right hip pain. Upon physical evaluation, right hip flexion was to 70 degrees, extension to zero (0) degrees, abduction to 16 degrees, adduction to 8 degrees, external rotation to 16 degrees, and internal rotation to 12 degrees. The Veteran complained of pain in all ranges of motion. There was objective evidence of pain with abduction only. There was no change in range of motion after repetitive use. Left hip flexion was to 42 degrees, extension to zero (0) degrees, abduction to 12 degrees, adduction to 2 degrees, external rotation to 10 degrees, and internal rotation to 4 degrees. However, the examiner observed that the Veteran sat comfortably in a chair at 80 degrees of left hip flexion. There was objective evidence of pain in all ranges of motion. There was no change in range of motion after repetitive use. The trochanteric areas were slightly painful to palpitation. The Veteran had a VA examination in June 2012. He reported decreased range of motion with constant dull pain. He described daily flare-ups with increased activity and sharp pain. Upon physical evaluation, right hip flexion was to 115 degrees with objective evidence of pain. Left hip flexion was to 110 degrees with objective evidence of pain. Extension was greater than 5 degrees with no objective evidence of pain, bilaterally. Abduction was not lost beyond 10 degrees. The Veteran could still cross his legs and toe-out more than 15 degrees. The examiner noted that the Veteran's range of motion was affected by his hypersensitivity and effort. Following repetitive use, right and left hip range of motion remained the same. However, there was functional loss with pain on movement, bilaterally. There was no evidence of reduced muscle strength or ankylosis. He regularly used a cane for balance. In June 2014, the Veteran was provided a VA examination. He reported that sharp bilateral hip pain with prolonged walking and stiffness and spasms which made walking and movement difficult. Physical activity aggravated his hips. He denied any flare-ups. Upon physical evaluation, right and left hip flexion and extension were normal without objective evidence of pain. Abduction was not lost beyond 10 degrees. The Veteran could still cross his legs and toe-out more than 15 degrees. Following repetitive use, right and left hip motion remained the same. However, there was functional loss with pain on movement, bilaterally. There was no evidence of reduced muscle strength or ankylosis. The Veteran underwent a VA examination in September 2017. He reported bilateral hip pain, fatigue with use, and popping. He described flare-ups precipitated by weather and prolonged sitting in one position. He added that he had functional loss with walking, running, and standing. Upon physical evaluation, right and left hip flexion was to 90 degrees, extension to 10 degrees, abduction to 20 degrees, adduction to 25 degrees, external rotation to 50 degrees, and internal rotation to 20 degrees. Limited motion contributed to functional loss and the Veteran had to stop due to pain. He could still cross his legs. There was objective evidence of painful abduction which caused functional loss, bilaterally. There was evidence of bilateral hip pain with passive range of motion and on weight bearing. The Veteran was unable to perform repetitive use testing due to his fear of pain. There was evidence of reduced muscle strength in the Veteran's right and left hips without any muscle atrophy. He did not have ankylosis. He regularly used a cane for stability. In October 2020, the Veteran had a VA examination followed by addendum opinions in December 2020 and March 2021. He described daily, moderate to severe flare-ups of the right and left hip that were precipitated by movement. He added that his right hip flare-ups were constant and left hip flare-ups varied. He reported functional loss, to include difficulty sitting and with prolonged walking or standing. Upon physical evaluation, right hip flexion was to 100 degrees, extension to 30 degrees, abduction to 45 degrees, adduction to 20 degrees, external rotation to 50 degrees, and internal rotation to 40 degrees. There was no objective evidence of pain. There was no change in range of motion after repetitive use. Left hip flexion was to 110 degrees, extension to 30 degrees, abduction to 40 degrees, adduction to 20 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. There was objective evidence of pain with left hip flexion and extension. He could still cross his legs, bilaterally. The examiner commented that there was a mild change in the Veteran's range of motion, bilaterally, mostly due to large body habitus. The examiner explained that the Veteran's bilateral hip flexion was limited to 100 degrees due to his obesity and increased abdominal girth. The remaining range of motion planes such as adduction and external rotation were not affected by the Veteran's obesity or large habitus. Following repetitive use, the Veteran did not have any additional loss of function or range of motion of the Veteran's right hip. However, after repetitive use, left hip flexion was to 100 degrees, extension to 20 degrees, abduction to 40 degrees, adduction to 20 degrees, external rotation to 50 degrees, and internal rotation to 40 degrees. Pain caused functional loss. He could still cross his legs. Additionally, the examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit bilateral hip functional ability with repeated use over time or flare-ups. He did not have any crepitus, muscle weakness, atrophy, or ankylosis. There was no evidence of bilateral hip pain with passive range of motion and on weight and non-weight bearing. A review of VAMC and private medical records showed that the Veteran has received additional treatment for his right and left hip disabilities. However, there is no indication that his symptoms were manifestly different from the findings reported above. Based on the foregoing evidence, the Board finds that the Veteran is not entitled to higher ratings throughout the appeal period. In this regard, the Veteran's right and left hip disabilities have been manifested by painful motion. Range of motion findings of record do not demonstrate right thigh flexion limited to 45 degrees or extension limited to 5 degrees. Further, impairment of the right thigh was not productive of limitation of abduction of, motion loss beyond 10 degrees; limitation of adduction of, cannot cross legs; or limitation of rotation of, cannot toe-out more than 15 degrees, affected leg. While the July 2009 VA examiner found that the Veteran's left hip external rotation was limited to 10 degrees, there is evidence of record that the Veteran showed minimal/decreased effort. Further, additional VA examinations showed that the Veteran could toe out more than 15 degrees and cross his legs. Therefore, a rating in excess of 10 percent for right and left hip disabilities is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, 5253. The Board notes that there is no medical evidence of record that any pain, fatigability, incoordination, or weakness resulted in additional limitation of function to meet the criteria for a higher evaluation. DeLuca, 8 Vet. App. 202. Furthermore, the effect of the pain on the Veteran's right and left hip disabilities is already contemplated by the assigned ratings. Mitchell, 24 Vet. App. 32, 33, 43. Consideration has been given to assignment of a higher, or separate, rating under another diagnostic code pertaining to the hip and thigh. However, there is no evidence of record showing that the Veteran has ankylosis, hip flail joint, or impairment of the femur. As such, a higher or separate rating for the Veteran's right and left hip disabilities is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255 (2020). 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). TDIU The Veteran has reported that his service-connected disabilities have prevented him from securing or following any substantial gainful occupation. From September 6, 2017, the Veteran's combined rating, with application of the bilateral factor, has been at least 70 percent, with at least one disability rated at least 40 percent. Therefore, the Board finds that the Veteran has met the schedular criteria for assignment of a TDIU since that time. Additionally, the Veteran stated that he became too disabled to work as a supervisor/manager in September 2006. He reported that his service-connected disabilities and nonservice-connected posttraumatic stress disorder prevented him from obtaining and maintaining any form of gainful employment consistent with his education and work experience. The Veteran was provided VA examinations for his service-connected disabilities in September 2017 and March 2020. The examiner indicated that the Veteran's right shoulder injury residuals, right and left hip disabilities, right and left knee disabilities, and right and left tibial periostitis impacted his ability to perform occupational tasks. Specifically, the examiner observed that the Veteran was unstable on his legs and a high fall risk. The Veteran reported difficulty with prolonged sitting, walking, or standing and with getting up from sitting, lifting greater than 20 pounds, climbing, kneeling, repetitive bending, and repetitive arm movements. In November 2017, the Veteran testified that in his managerial roles, he had to be physically active or somewhat mobile. He stated that he did not have a desk that he sat at all day. Even if he could sit at a desk, he stated that his legs would go numb after an extended period. He related that he tried janitorial work, but he could not bend, squat, or get down on his knees to clean. Based on the subjective report of the Veteran and the objective findings in the VA examination reports, the Board finds that the Veteran's service-connected disabilities significantly impact his ability to function in an occupational setting. In this regard, the Veteran had a lengthy post-service work history in a single field as a supervisor/manager. His service-connected disabilities impacted his ability to perform sedentary and physical tasks, which the Board finds were critical functions of his previous work. In light of the Veteran's employment history and the functional limitations described above, the Board finds that he is unable to secure or follow a substantially gainful occupation. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU from September 6, 2017, is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 55. REASONS FOR REMAND The Board finds that additional development is required before the remaining claim on appeal is decided. The Veteran has maintained that his service-connected disabilities have prevented him from securing or following any substantial gainful occupation prior to September 6, 2017. Because the Veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a) for the assignment of a TDIU prior to September 6, 2017, the matter is referred to the Director of VA's Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Refer the TDIU claim prior to September 6, 2017, to the Director of VA's Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). 2. Then, readjudicate the remaining claim on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.