Citation Nr: 21066841 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-41 191 DATE: November 2, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for left knee posttraumatic arthritis is denied. Entitlement to a disability rating in excess of 10 percent for right knee posttraumatic arthritis is denied. Entitlement to an initial disability rating in excess of 10 percent, prior to July 1, 2021, for left knee instability is denied. Entitlement to a disability rating of 30 percent, as of July 1, 2021, for left knee instability is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating in excess 10 percent, prior to July 1, 2021, for right knee instability is denied. Entitlement to a disability rating of 30 percent, as of July 1, 2021, for right knee instability is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a separate 10 percent rating, but not higher, for left knee meniscectomy residual symptoms under Diagnostic Code 5259, as of July 1, 2021, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating in excess of 10 percent for right hip strain, impairment of the thigh, based on limitation of adduction/abduction is denied. Entitlement to an initial compensable disability rating for right hip strain based on limitation of extension is denied. Entitlement to an initial compensable disability rating for right hip strain based on limitation of flexion is denied. FINDINGS OF FACT 1. At worst, throughout the period on appeal, the Veteran's left knee disability is manifested by flexion limited to 120 degrees. 2. At worst, throughout the period on appeal, the Veteran's right knee disability is manifested by flexion limited to 115 degrees. 3. At worst, prior to July 1, 2021, the Veteran's left knee instability is manifested by a slight impairment. 4. At worst, prior to July 1, 2021, the Veteran's right knee instability is manifested by a slight impairment. 5. At worst, as of July 1, 2021, there was recurrent subluxation and persistent instability, due to a complete bilateral ligament tear, the surgical attempts to repair the ligaments failed, and the Veteran required a prescription for bilateral knee braces for ambulation. 6. At worst, as of July 1, 2021, there was recurrent subluxation and persistent instability, due to a complete bilateral ligament tear, the surgical attempts to repair the ligaments failed, and the Veteran required a prescription for bilateral knee braces for ambulation. 7. As of July 1, 2021, the evidence of record demonstrates that the Veteran had meniscectomy residual symptoms in his left knee. 8. At worst, throughout the period on appeal, the Veteran's right hip disability is manifested by adduction/abduction limited to 15 and 20 degrees. 9. At worst, throughout the period on appeal, the Veteran's right hip disability is manifested by extension limited to 10 degrees. 10. At worst, throughout the period on appeal, the Veteran's right hip disability is manifested by flexion limited to 85 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left knee posttraumatic arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5260. 2. The criteria for a disability rating in excess of 10 percent for right knee posttraumatic arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5260. 3. The criteria for an initial disability rating in excess of 10 percent, prior to July 1, 2021, for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5257. 4. The criteria for a disability rating of 30 percent, as of July 1, 2021, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5257. 5. The criteria for an initial disability rating in excess of 10 percent, prior to July 1, 2021, for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5257. 6. The criteria for a disability rating of 30 percent, as of July 1, 2021, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5257 7. The criteria for a separate 10 percent rating for left knee meniscectomy residual symptoms, as of July 1, 2021, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5259. 8. The criteria for an initial disability rating in excess of 10 percent for right hip strain, impairment of thigh, based on limitation of adduction/abduction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5253. 9. The criteria for an initial compensable disability rating for right hip strain based on limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5251. 10. The criteria for an initial compensable disability rating for right hip strain based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran attended the United States Air Force Academy from June 1995 to June 1999 and served on active duty from June 1999 to September 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In a September 2019 decision, the Board denied all the claims, noting that the Veteran failed to appear for his scheduled examinations, adjudicating the claims based upon the evidence then of record. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (the Court). The Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved that appeal by way of a Joint Motion for Remand (JMR). The Parties agreed that the Board erred by finding that no good cause existed for excusing the Veteran's failure to appear for his previously scheduled examinations without determining whether VA's failure to send to the Veteran's correct address the examination notification constituted good cause. In an August 24, 2020, Order, the Court adopted the Parties' JMR. In February 2021, the Board remanded these appeals for further development. The Board also notes that, in August 2021, the RO granted service connection for the Veteran's right ankle and left elbow disabilities. Increased Rating Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). 1. Entitlement to a disability rating in excess of 10 percent for left knee posttraumatic arthritis 2. Entitlement to a disability rating in excess of 10 percent for right knee posttraumatic arthritis 3. Entitlement to an initial disability rating in excess of 10 percent, prior to July 1, 2021, for left knee instability, and in excess of 20 percent thereafter 4. Entitlement to an initial disability rating in excess of 10 percent, prior to July 1, 2021, for right knee instability, and in excess of 20 percent thereafter The Veteran and his attorney are seeking a rating in excess of 10 percent for each of his bilateral knee disabilities, which are currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated 60 percent disabling. 38 C.F.R. § 4.71a. Under the rating criteria in effect prior to February 7, 2021, Diagnostic Code 5257 provided ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee was rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee was rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee was rated 30 percent disabling. 38 C.F.R. § 4.71a. Under the rating criteria in effect since February 7, 2021, Diagnostic Code 5257 provides ratings for recurrent subluxation or instability and patellar instability. Recurrent subluxation manifested by a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, is rated 10 percent. A sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, is rated 20 percent. An unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, is rated 30 percent. 85 Fed. Reg. at 76463. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Under the rating criteria in effect prior to February 7, 2021, Diagnostic Code 5262 provided ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Under the rating criteria in effect from February 7, 2021, Diagnostic Code 5262 provides that medial tibial stress syndrome (MTSS), or shin splints, is rated: With treatment for less than 12 consecutive months, for one or both lower extremities, 0 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities, 10 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity, 20 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities, 30 percent. Malunion of the tibia and fibula is evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Nonunion of the tibia and fibula, with loose motion, requiring a brace, is rated 40 percent. 85 Fed. Reg. at 76463. Diagnostic Code 5263 provides a 10 percent rating for genu recurvatum, acquired or traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a. The Veteran had a VA examination in November 2014 at which the examiner diagnosed the Veteran with bilateral knee anterior cruciate ligament tear and bilateral degenerative arthritis. The Veteran reported experiencing bilateral knee aches, even when just sitting, however he noted he can walk a mile without a problem and rides a road or stationary bicycle two to three times a week for 45 minutes. The Veteran did not report experiencing flare-ups during the examination, but reported functional impairment resulting in an inability to jog without pain. On examination of the left knee, flexion range of motion was limited to 125 degrees and extension was normal at 0 degrees. As to the right knee, flexion range of motion was limited to 125 degrees and extension was normal at 0 degrees. No pain was noted during the examination and there was no pain with weight-bearing, however the right knee had objective evidence of localized tenderness or pain on palpation in the medial joint line. The examiner noted that the Veteran was able to perform repetitive use testing, and after observed repetitive use the Veteran's left knee range of flexion improved to 130 degrees and the range of flexion of the right knee had additional limitation of range of motion to 115 degrees. The examiner was unable to state whether pain, weakness, fatigability or incoordination significantly limit functional ability of the bilateral knees with repeated use over a period of time or flare-ups, even though the Veteran did not report experiencing flare-ups. Muscle strength testing revealed active movement against some resistance for the left knee and extension of the right knee, forward flexion of the right knee was normal, and there was no muscle atrophy. The examination revealed no ankylosis. The examiner noted that the Veteran had no history of recurrent subluxation or lateral instability, however, there is recurrent effusion, as his knees were swollen twice a month. On examination, the right knee revealed an anterior instability 1+. The examiner noted that the Veteran had no current meniscal conditions. The examiner also noted that the Veteran had right knee ACL surgery in 1997 and had left knee ACL surgery in 2005, and has bilateral residual knee aches. The Veteran occasionally uses knee braces. The examiner noted that the Veteran's bilateral knee disabilities would interfere with doing manual labor. The examiner added that the Veteran's right knee aches more than the left and that his right swells once or twice a month, the left less so. The examiner concluded that knee pain prevents the Veteran from being as active as he would like to be, and his knee pain is directly related to his bilateral ACL repairs. The Veteran had another VA examination in January 2020. The January 2020 VA examiner diagnosed the Veteran with bilateral knee status post anterior cruciate ligament reconstruction and right knee instability. During the examination, the Veteran reported that his current bilateral knee disabilities experience symptoms of aching and a lack of range of motion in knees, as he cannot bend on kneel, getting out of seats and off the floor was uncomfortable, and that it is always tight across the front of the knee. The Veteran noted experiencing flare-ups of the bilateral knees, noting that his knee would lock, popped and swells afterwards, daily with a 9/10 severity when exacerbated and at 6/10 at baseline with a constant duration. The Veteran reported experiencing no functional impairment. On examination of the bilateral knees, flexion range of motion was limited to 120 degrees and extension was normal at 0 degrees, with pain on motion. There was no evidence of crepitus, localized tenderness or pain on palpation. There was no additional limitation to range of motion after observed repetitive use, repeated use over time, or flare-ups. Additional factors that contribute to the disabilities in the bilateral knees are disturbance of locomotion and interference with sitting and standing. Testing revealed a normal muscle strength, no muscle atrophy, and no ankylosis. The examiner stated that the Veteran had no history of recurrent subluxation, lateral instability, or recurrent effusion. However, the Veteran had noted instability on examination of the bilateral knees, as he had 1+ anterior instability and 1+ posterior instability. The examiner noted that the Veteran had bilateral shin splints that don't affect range of motion of the knee or ankle. No meniscal condition was noted. The examiner also noted that the Veteran's prior ACL surgeries in his bilateral knees have residual symptoms of weakness, pain, and swelling. The Veteran constantly uses knee braces, due to bilateral knee instability. The examiner concluded that the bilateral knee disabilities resulted in a functional impact, noting that the Veteran works as a systems engineer, and lost two to four weeks a year of employment due to having to attend physical therapy for knee pian. There was objective evidence of bilateral knee pain on passive range of motion testing. There was objective evidence of bilateral knee pain when the joint is used in non-weight bearing. The examiner finalized the examination report by noting that the Veteran's bilateral knee disabilities have progressed to degenerative arthritis. The Veteran had yet another VA examination in July 2021. The July 2021 VA examiner diagnosed the Veteran with left knee meniscal tear, bilateral knee posttraumatic arthritis, and bilateral knee ACL tears. During the examination, the Veteran reported that he experienced pain when moving from sitting to standing and has secondary numbness around surgical sites, also noting that his current primary symptom is pain. The Veteran noted experiencing moderate flare-ups of the bilateral knees, noting that they occur one to two times per month; with a duration of one to five days; characterized by aching, swelling, throbbing, and stiffness; precipitated by prolonged weight-bearing; and alleviated by rest and medication. The Veteran reported experiencing functional impairment resulting in difficulty in ambulation, difficulty climbing steps, and an inability to crawl, crouch, or run. The Veteran also reported a history of knee instability, and a history of frequent effusion with exacerbations one or two times per month. On examination of the bilateral knees, flexion range of motion was limited to 130 degrees and extension was considered normal at 0 degrees, with pain on motion. There was evidence of crepitus, localized tenderness or pain on palpation. There was no additional limitation to range of motion of the bilateral knees after observed repetitive use. There was additional limitation to range of motion after repeated use over time and flare-ups, due to pain, flexion range of motion was limited to 120 degrees and extension was normal at 0 degrees. Additional factors that contribute to the disabilities in the bilateral knees are difficulty in prolonged standing, walking, climbing, and an inability to run, crawl, crouch, or bend. Testing revealed normal muscle strength, no muscle atrophy, and no ankylosis. The examiner noted that there was recurrent subluxation and persistent instability, due to a complete bilateral ligament tear. The surgical attempts to repair the ligaments failed. The Veteran required a prescription for bilateral knee braces for ambulation. There was no tibial or fibular impairment. No meniscal condition was noted in the right knee. The Veteran had a left knee meniscal tear. The examiner also noted that the Veteran had an ACL surgery on his right knee in 1997, that results in pain and ACL surgeries in the left knee in 2001 and 2004, there was also a left knee meniscectomy in 2001, that results in pain. The Veteran occasionally uses bilateral knee braces. The examiner concluded that the bilateral knee disabilities resulted in a functional impact, noting that the Veteran experiences difficulty in ambulation, difficulty climbing steps, and an inability to crawl, crouch, or run. The record does not show ankylosis, dislocated semilunar cartilage with frequent locking and effusion, limited range of motion of extension, impairment of the tibula or fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5259, 5261, 5262, and 5263 do not provide any basis for a separate or higher rating in this claim. 38 C.F.R. § 4.71a. The recent revisions to Diagnostic Codes 5262, effective from February 7, 2021, are therefore also not for application. The Board further finds that the Veteran does not qualify for an evaluation in excess of 10 percent for bilateral knee limitation of flexion, because flexion has not been limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. In fact, the Veteran's current rating for limitation of flexion is based on 38 C.F.R. § 4.59, as his range of flexion is not considered compensable under the applicable Diagnostic Code, although the pain he experiences causes sufficient impairment to support his current 10 percent disability rating. Thus, there is no additional uncompensated compensable limitation of motion that can serve as a basis for a higher rating for limited motion with pain. As for Diagnostic Code 5257, for the Veteran's bilateral knee instability, there is no evidence that the disability was more than slightly unstable based on the rating criteria in effect prior to February 7, 2021. However, based on the rating criteria in effect as of February 7, 2021, the Board finds that the Veteran has met the criteria necessary for a 30 percent rating for severe instability since July 1, 2021, as the July 2021 VA examiner noted that there was recurrent subluxation and persistent instability, due to a complete bilateral ligament tear, the surgical attempts to repair the ligaments failed, and the Veteran required a prescription for bilateral knee braces for ambulation. Regarding Diagnostic Code 5259, the record demonstrates that he had a meniscectomy surgery in his left knee in 2001. The July 2021 VA examination confirmed that the left knee surgeries resulted in swelling and locking that is not necessarily contemplated by the ratings for instability for the left knee. Therefore the Board finds that it is symptomatic and that a separate compensable rating does not constitute pyramiding. Accordingly, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is entitled to a higher disability rating for each of his bilateral knee disabilities regarding limited flexion and bilateral knee instability prior to July 1, 2021. However, the Board finds that the Veteran's bilateral knee instability warrants a 30 percent disability rating as of July 1, 2021, and that his residuals of a left knee meniscectomy merit a 10 percent rating as of July 1, 2021. 5. Entitlement to an initial disability rating in excess of 10 percent for right hip strain, impairment of the thigh, based on limitation of adduction/abduction 6. Entitlement to an initial compensable disability rating for right hip strain based on limitation of flexion 7. Entitlement to an initial compensable disability rating for right hip strain based on limitation of extension The Veteran and his attorney are seeking a rating in excess of 10 percent for his right hip strain, which is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5253, the Veteran is also service connected for his right hip strain based on 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252. The provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5250 to 5255, provide the criteria for rating hip and thigh disabilities. Normal range of motion for the hip is to 125 degrees of flexion, to zero degrees of extension, and to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5251, for limitation of extension of the thigh, a 10 percent rating is assigned where extension is limited to 5 degrees. Under Diagnostic Code 5252, for limitation of flexion of the thigh, where flexion is limited to 45 degrees, a 10 percent evaluation is assigned; where flexion is limited to 30 degrees, a 20 percent evaluation is assigned; where flexion is limited to 20 degrees, a 30 percent evaluation is assigned; and where flexion is limited to 10 degrees, a 40 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, for impairment of the thigh, when rotation is limited, such that one cannot toe-out more than 15 degrees, or adduction limited, such that one cannot cross his legs, a 10 percent evaluation is assigned. When abduction is limited beyond 10 degrees, a 20 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5054 for hip replacements (prosthesis) a 100 percent evaluation is assigned for one year following implantation of the prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5054. The Veteran had a VA examination in November 2014 at which the examiner diagnosed the Veteran with a right hip condition. The Veteran reported that he believes that his hip pain is due to his ACL tears in both knees, and he has difficulty running and squatting. The Veteran did report experiencing flare-ups during the examination, noting a difficulty running and squatting. The Veteran noted that he experienced no functional impairment due to his right hip disability. On examination, flexion range of motion was limited to 100 degrees, extension was normal at 30 degrees, abduction was normal at 45 degrees, adduction was normal at 25 degrees, external rotation was normal at 60 degrees, and internal rotation was considered normal at 40 degrees. No pain was noted during the examination and there was no pain with weight-bearing. The examiner noted that the Veteran was able to perform repetitive use testing, and after observed repetitive use there was no additional limitation to range of motion. The examiner was unable to opine as to whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or flare-ups. The examiner added that an opinion regarding if, when and to what extent, in degrees, "repetitive use over time" could significantly limit functional ability, is not one with literature support, but instead based on clinical information including history and physical findings. The examiner noted that more definitive loss of function, due to such repetitive use over time and flare-ups, could not be determined without resorting to mere speculation, except when such repetitive use or flare-ups occurs just prior to the examination. The examination revealed normal muscle strength and no muscle atrophy. The examination revealed no ankylosis. The Veteran did not report using assistive devices. The examiner opined that the right hip disability did not cause a functional impact. The Veteran had another VA examination in January 2020. The January 2020 VA examiner diagnosed the Veteran with right hip pain. The Veteran reported that he experiences symptoms of constant hip pain, occasional shooting pain, and a lack of sleep due to pain trying to find a comfortable position to treat. The Veteran did not report experiencing any flare-ups or functional impairment due to his right hip disability. On examination, flexion range of motion was limited to 105 degrees, extension was limited to 15 degrees, abduction was limited to 15 degrees, adduction was limited to 20 degrees, external rotation was limited to 30 degrees, and internal rotation was limited to 30 degrees, with pain noted on motion. There was no evidence of crepitus or localized tenderness or pain on palpation. There was no additional limitation of range of motion after observed repetitive use or repeated use over time. Additional factors that contribute to the disability are an interference with sitting and standing. Muscle strength testing revealed active movement against some resistance and no muscle atrophy. The examination revealed no ankylosis. The Veteran did not report using assistive devices. The examiner opined that the right hip disability resulted in a functional impact, noting that the Veteran works as a systems engineer, and lost one to two weeks a year of employment due to having pain issues making sitting and standing problematic. There was objective evidence of pain on passive range of motion testing. There was objective evidence of pain when the joint is used in nonweight-bearing. The Veteran had yet another VA examination in July 2021. The July 2021 VA examiner diagnosed the Veteran with a right hip strain. The Veteran reported experiencing functional loss that prohibits him from prolonged sitting, and prolonged standing or walking. The Veteran noted experiencing mild flare-ups, noting that they occur one to two times per month; with a duration of one to five days, characterized by aching and stiffness; precipitated by prolonged walking, sitting, standing; and alleviated by rest and medication. On examination, hip flexion range of motion was limited to 95 degrees, extension was limited to 20 degrees, abduction was limited to 40 degrees, adduction was normal at 25 degrees, external rotation was limited to 50 degrees, and internal rotation was limited to 20 degrees, with pain noted on motion. Passive range of motion is the same as active range of motion, with pain. There was no evidence of crepitus or localized tenderness or pain on palpation. There was no additional limitation of range of motion after observed repetitive use. There was additional limitation of range of motion after repeated use over time and flare-ups; notably flexion range of motion was limited to 85 degrees, extension was limited to 10 degrees, abduction was limited to 35 degrees, adduction was limited to 20 degrees, external rotation was limited to 40 degrees, and internal rotation was limited to 10 degrees, with pain noted on motion. Additional factors that contribute to the disability prohibit him from prolonged sitting or standing/walking. Muscle strength testing revealed no muscle atrophy. The examination revealed no ankylosis. The Veteran did not report using assistive devices. There was no femur or flail hip joint impairment. The Veteran did not report using assistive devices. The examiner opined that the right hip disability caused a functional impact prohibiting him from prolonged sitting or standing/walking. Based on the foregoing, the Board finds that a rating in excess of 10 percent under Diagnostic Code 5253, and compensable ratings under Diagnostic Codes 5251 and 5252, are not warranted for the Veteran's service-connected right hip disability. In fact, the Veteran's current rating for limitation of motion is based on 38 C.F.R. § 4.59, as his range of motion is not considered compensable under the applicable Diagnostic Codes, although the pain he experiences causes sufficient impairment to support his current 10 percent disability rating. Thus, there is no additional uncompensated compensable limitation of motion that can serve as a basis for a higher rating for limited motion with pain. Assigning separate ratings based on limitation of extension, flexion, adduction and rotation of the hip under DC 5251, 5252, and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14. Separate ratings under different diagnostic codes may be assigned where "none of the symptomatology for any of [the] conditions are duplicative of or overlapping with the symptomatology of the other ... conditions." Esteban v. Brown, 6 Vet. App. 259 (1994). However, assigning multiple ratings based on the same symptoms or manifestations of a disability constitutes prohibited pyramiding. 38 C.F.R. § 4.14. Finally, the evidence shows that the Veteran does not have hip ankylosis, hip flail joint, or any femur impairment; accordingly, higher ratings are not warranted under Diagnostic Codes 5250, 5254, or 5255. The Board accordingly finds that the Veteran is appropriately assigned a 10 percent disability rating under Diagnostic Code 5253 and noncompensable ratings under Diagnostic Code 5251 and 5252 for his service-connected right hip disability. The evidence does not support an award of a separate or higher rating under any of the available hip and thigh Diagnostic Codes. Accordingly, his claim for increased ratings for his service-connected right hip disability must be denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.