Citation Nr: 21076351 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-53 778A DATE: December 23, 2021 ORDER Service connection for a psychological condition, including posttraumatic stress disorder with alcohol use disorder (PTSD), is denied. For the entire initial rating period from June 29, 2015, a disability rating higher than 10 percent for right hip limitation of extension is denied. For the initial rating period from June 29, 2015 to March 9, 2021, a 20 percent disability rating, but no higher, for right hip limitation of abduction is granted. For the initial rating period from March 9, 2021, a disability rating higher than 20 percent for right hip limitation of abduction is denied. For the initial rating period from June 29, 2015 to March 9, 2021, a 20 percent disability rating, but no higher, for right hip limitation of flexion is granted. For the initial rating period from March 9, 2021, a disability rating higher than 20 percent for right hip limitation of flexion is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD with alcohol use disorder. 2. An in-service stressor sufficient to cause PTSD has not been verified. 3. For the entire initial rating period from June 29, 2015 forward, right hip limitation of extension ranged from 5 to 30 degrees. 4. For the initial rating period from June 29, 2015, forward, right hip adduction was limited so that the Veteran could not cross the legs and the right hip demonstrated a limitation of flexion to 25 degrees, abduction to 10 degrees, adduction to 5 degrees, external rotation to 10 degrees, and internal rotation to 5 degrees during flare-ups due to pain, fatigability, weakness, lack of endurance, and incoordination. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. §§ 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. 2. For the entire initial rating period from June 29, 2015, the criteria for a disability rating higher than 10 percent for right hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5251. 3. Resolving reasonable doubt in the Veteran's favor, for the initial rating period from June 29, 2015 to March 9, 2021, the criteria for a 20 percent disability rating, but no higher, for right hip limitation of abduction have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5253. 4. For the initial rating period from March 9, 2021, the criteria for a disability rating higher than 20 percent for right hip limitation of abduction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5253. 5. Resolving reasonable doubt in the Veteran's favor, for the initial rating period from June 29, 2015 to March 9, 2021, the criteria for a 20 percent disability rating, but no higher, for right hip limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5252. 6. For the initial rating period from March 9, 2021, the criteria for a disability rating higher than 20 percent for right hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from January 1982 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2015 and March 2016 rating decisions from the Regional Office (RO), which, in pertinent part, denied service connection for a psychological condition to include PTSD with alcohol use disorder, and granted service connection for right hip osteoarthritis, assigning a 0 percent (noncompensable) rating for right hip flexion, and impairment of the right hip, and a 10 percent initial disability rating for right hip extension (effective June 29, 2015). In January 2021, the Veteran testified at a Board virtual hearing through the RO in Boston, Massachusetts, before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. This case was previously before the Board in March 2021, where the issue on appeal was remanded to attempt to verify a claimed stressor, obtain outstanding private treatment records, and provide a new right hip VA examination that opined on range on motion during flare ups. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. The Veteran is currently diagnosed with PTSD, which is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125(a)), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service." Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f)(3). If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to "fear of hostile military or terrorist activity," then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. 1. Service Connection for PTSD The Veteran contends that service connection for a PTSD is warranted as a result of various claimed stressors. A review of the evidence reflects a diagnosis of PTSD with alcohol use disorder, although the diagnosis of PTSD is not based on a verified in-service stressor. See August 2014 VA examination report. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that an in-service stressor sufficient to cause PTSD is not corroborated by the evidence of record. In a November 2013 notice letter, the RO requested specific details of a stressor incident, to include the location and at least a two-month date range of when the claimed incident occurred. In a November 2013 Statement in Support of the Claim, the Veteran reported that he was assigned to the 11th Armory Calvary in Fulda, Germany, from 1982 to 1985. The Veteran claimed that in 1984 a soldier was killed in a non-combat accidental shooting, and that the soldier who fired the fatal shot ended up committing suicide. During the August 2014 VA examination, the Veteran reported that he did not witness the actual shooting, only the aftermath of the event. While the Veteran asserted that this incident took place in Germany in 1984, he did not provide a specific two-month approximate date range of when the incident occurred, or the names of the soldier involved in the alleged incident. The Veteran also asserted that on or around December 31,1983 while assigned to the 2K zone in Fulda, Germany, he watched from afar as East German soldiers shot two German civilians, which he assumed to be a father and son, who were attempting to cross the boarder into West Germany. See November 2013 Statement in Support of the Claim, see also August 2014 VA The VA examiner in August 2014 assessed that the claimed stressor of witnessing the aftermath of an accidental shooting met Criteria A for a diagnosis of PTSD; however, the weight of the evidence is insufficient to verify that this reported stressor occurred. As noted above the Veteran has asserted that he was stationed in Germany from 1982 to 1985 and that this claimed accidental shooting occurred in 1984. The Veteran's assertion is less than credible because, in additional to being a general report with a vague timeline as to occurrence, the service personnel records indicate that the Veteran was only stationed in Germany from May 1982 to November 1983, which is inconsistent with the assertion that the Veteran witnessed the aftermath of an accidental shooting in Germany in 1984. Additionally, February 2019 DPRIS response indicates that a search was conducted of the National Archives Records Administration (NARA) as well as the historical and casualty records for the 1st Squadron, 11th Armored Cavalry Division, and there was no documentation of any friendly fire incident in this unit, to include the purported incident in which a soldier shot a fellow soldier and later died of an apparent suicide. The August 2014 VA examiner also assumed that the claimed stressor of witnessing the shooting death of German civilians who were trying to cross the Western Germany border on December 31, 1983 is related to fear of hostile military or terrorist activity, though it is neither. As for the Veteran's involvement, the Veteran did not assert that he or his unit were involved in or threatened with actual death or serious injury from German soldiers. The Veteran's statements suggest that he watched from afar as German soldiers directed their attention to the German civilians attempting to cross the border. For these reasons, this alleged but unsubstantiated event does not meet the criteria for fear of hostile military or terrorist activity. See 3.304(f)(3). The DD Form 214 does not indicate that the Veteran received any awards or medals that suggest exposure to any hostile military or combat activities during service. Moreover, the Veteran contends that this incident occurred on New Year's Eve 1983, a time during which the Veteran was not even stationed in Germany, as personnel records indicate that the Veteran was only stationed in Germany through November 1983. In later statements in 2019 and at the January 2021 Board hearing, the Veteran reported new stressors that he had not mention previously when reporting stressor events, such as in his November 2013 stressor statement or during the August 2014 VA examination. The Veteran reported stressors related to witnessing someone light shoe polish in a truck that was carrying gun powder at some point while he was in the Reserves between August 1987 and June 1989. The Veteran also asserted that he experienced some level of fear during grenade simulations in basic training in 1982, and while training in Germany during an unknown period. The Veteran does not assert that that these claimed incidents resulted in any actual harm to himself or others, or fear of actual bodily injury, and he did not provide enough details to corroborate these events, such as specific facts of the alleged events and specific of dates when these alleged events occurred. See November 2019 Statement in Support of the Claim, January 2021 Board Hearing Transcript. Furthermore, a review of the service treatment and personnel records are silent for any of the claimed stressors that the Veteran has put forth. Service treatment records are also silent for complaints, symptoms, treatment, or diagnosis of any psychiatric disability during service. The December 1984 separation examination report and post-service Army Reserve records show that psychiatric evaluations were clinically normal, and the Veteran specifically denied frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. See December 1984, September 1985, June 1989 service treatment records. Post-service private treatment records show that the Veteran started receiving treatment for alcohol abuse in 1988, three years after service separation. Clinical records indicate that the Veteran reported that he began drinking heavily after he separated from service in 1985. The Veteran was also diagnosed with substance abuse and dysthymic disorder in 1989, when he was dealing with post-service marital stress. The Veteran did not report any stressors related to service while receiving substance abuse treatment between 1988 and 1995. See March 1988, February 1989, November 1995 private treatment records. The history of post-service onset of symptoms contemporaneous with post-service marital stress is of high probative value because one is likely to give an accurate history in order to receive good care or treatment. VA treatment records dated from 2012 show that that Veteran initially sought treatment for alcoholism and bereavement in 2012, after his daughter passed. The Veteran denied any combat exposures during this initial intake, and did not report any other military stressors. It is not until 2014, a year after he filed the 2013 Claim for service connection (compensation) for PTSD, that the Veteran begins to mention symptoms of PTSD, noting that he has hallucinations of soldiers calling him to return to Germany; however, VA treatment records are devoid of such lay descriptions of the specific stressors the Veteran experienced while servicing in Germany. Notably, a November 2014 note reveals that, when asked by a clinician to elaborate on the specific "atrocities" witnessed in Germany, the Veteran declined to discuss the matter further. See November 2014, September 2015, October 2016 VA treatment records. In a February 2021 letter, a treating VA psychiatrist wrote that the Veteran was under the psychiatrist's care for PTSD and polysubstance use disorder, which the Veteran has been suffering from due to traumatic experiences in the military. The treating physician's letter is not sufficient to verify the claimed stressor because the psychiatrist does describe the underlying traumatic stressor(s) that are the basis of the PTSD diagnosis, nor how the service and post-service records support a diagnosis of PTSD. To the extent that the Veteran testified that he began drinking heavily in service, contemporaneous post-service records reflect the Veteran's reports that his problems with drinking began upon separating from service in 1985. Moreover, the Veteran did not provide any lay history, for the purpose of treatment, of any of the claimed stressors when seeking treatment for alcohol abuse between 1988 and 1995. Treatment providers have also noted that it is unclear whether the Veteran's psychiatric symptoms are organic outside of the Veteran's alcohol use disorder. See November 2014, September 2015, July 2018 VA treatment records. Even if the Veteran did begin drinking during service, in the absence of an associated service-connected psychiatric disability, service connection for the Veteran's alcohol abuse is impermissible as a matter of law, as direct service connection for disability resulting from a claimant's own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990 (including in this case with the service connection claim received in December 2014). See 38 U.S.C. § 105(a), 38 C.F.R. § 3.301(a), (c)(2)(3); see also; Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001); VAOPGCPREC 2-98; VAOPGCPREC 7-99. Based on the foregoing, the Board finds that a preponderance of the evidence is against the claim for service connection for PTSD. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran has appealed from the initial rating assigned for the right hip disability. In an appeal for a higher initial rating after a grant of service connection, all evidence submitted in support of a veteran's claim is to be considered. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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 rating 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 disabilities. 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Additionally, painful motion is an important factor of disability, and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Where a claimant has a full range of motion with pain, or a noncompensable limitation of motion that is accompanied by pain, a 10 percent rating may be appropriate. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); see also Mitchell, 25 Vet. App. at 39. Painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton, 25 Vet. App. at 5. Right Hip Rating Criteria Disorders of the hips are rated under DC 5250 through DC 5255 of 38 C.F.R. § 4.71a. Hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Under DC 5251 (limitation of extension of the thigh), a 10 percent rating is assigned with extension limited to 5 degrees. Under DC 5252 (limitation of flexion of the thigh), a 10 percent rating is assigned with flexion limited to 45 degrees; a 20 percent rating is assigned with flexion limited to 30 degrees; a 30 percent rating is assigned with flexion limited to 20 degrees; and a 40 percent rating is assigned with flexion limited to 10 degrees. Under DC 5253, pertaining to impairment of the thigh, a 10 percent rating is warranted for limitation of adduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees; a 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. A flail joint of the hip warrants an 80 percent rating under DC 5254. DC 5255 addresses impairment of the femur due to fracture of the shaft or anatomical neck, fracture of the surgical neck with a false joint, or malunion. 2. Rating Right Hip Limitation of Extension from June 29, 2015 For the entire initial rating period from June 29, 2015, forward, right hip limitation of extension is rated at 10 percent under the criteria at 38 C.F.R. § 4.71a, DC 5003-5251 for degenerative arthritis with residual limitation of hip extension. Under DC 5251 (limitation of extension of the thigh), a maximum 10 percent rating is provided for extension limited to 5 degrees. After review of all the lay and medical evidence of record, the Board finds that the evidence weighs against finding that the criteria for an initial rating higher than 10 percent under DC 5003-5251 for degenerative arthritis with residual limitation of right hip extension from June 29, 2015, forward. For this portion of the rating period, right hip extension ranged from 5 to 30 degrees, including during a flare up period due to pain, fatigability, weakness, lack of endurance, and incoordination. A 10 percent rating is the maximum schedular rating available under DC 5251 for limitation of hip extension; therefore, a higher rating for limitation of right hip extension under DC 5251 must be denied. 3. Rating Right Hip Limitation of Abduction from June 29, 2015 to March 9, 2021 4. Rating Right Hip Limitation of Abduction from March 9, 2021 The right hip disability, based on impairment of the thigh, is assigned a noncompensable (0 percent) disability rating from June 29, 2015 to March 9, 2021, and a 20 percent disability rating from March 9, 2021 for limitation of abduction under DC 5253. 38 C.F.R. § 4.71a. The Veteran testified that he cannot cross his legs and that it is painful to walk due to the right hip disability. See January 2021 Board Hearing Transcript. After review of the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the criteria for a rating of 20 percent under DC 5253 for the right hip disability have been met from June 29, 2015 to March 9, 2021. In March 2021 Board decision, the Board explained that the October 2020 VA examination was inadequate for rating purposes because the Veteran reported flare up of the right hip and the examiner did not adequately address functional limitations during flare ups in terms of range of motion as required by Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). A review of the September 2015 and March 2020 VA examination reports shows that the Veteran also reported flares ups of the right hip during these encounters; however, the examiners in September 2015 and March 2020 also did not address functional limitations of the right hip during flare ups of increased pain. The September 2015 examiner noted that an estimate of range of motion during flare ups could not be provided outside of a clinical setting as to do so would require mere speculation, but did not explain why the available medical evidence, the Veteran's description of functional limitations during flare ups were not sufficient to provide an estimate of functional limitations during flare ups. The March 2020 examiner assessed the Veteran's report of flare ups to be neither consistent nor inconsistent with examination findings with no further explanation. A new VA examination was provided in March 2021. At the time, the Veteran described severe flare ups that last a couple hours and are precipitated by crossing the legs, walking, and sitting. The VA examiner assessed initial range of motion with abduction to 15 degrees and adduction to 10 degrees, and noted that limitation of adduction prevents the Veteran's from crossing the legs. The VA examiner opined that pain, fatigability, weakness, incoordination, and lack of endurance significantly limits functional ability during flare ups. Additionally, the examiner estimated range of motion during flare ups with abduction to 10 degrees and adduction to 5 degrees. It appears that the March 2021 VA examination was conducted during a flare up period as range of motion measurements prior to and after the March 2021 VA examination reveal that abduction measurements ranged between 20 to 30 degrees. See September 2015, March 2016, October 2019, March 2020, October 2020, August 2021 VA examination reports. Additionally, a March 2021 VA treatment note indicates that the Veteran complained of significant right hip pain a few days prior to the March 2021 VA examination, but an assessment of functional abilities was limited due to inability to conduct a physical examination at that time. Because the right hip disability demonstrated limitation of abduction of the thigh with motion lost beyond 10 degrees, the September 2021 rating decision awarded a 20 percent rating under DC 5253 effective from March 9, 2021. Thus, resolving reasonable doubt in the Veteran's favor, a higher initial rating of 20 percent under DC 5253 for the right hip disability based on thigh impairment is also warranted for the portion of the rating period from June 29, 2015 to March 9, 2021. As 20 percent rating is the maximum schedular rating available under DC 5253 for right hip impairment, a higher rating than 20 percent for right thigh impairment is not warranted for any period. 5. Rating for Right Hip Limitation of Flexion from June 29, 2015 to March 9, 2021 is granted 6. Rating Right Hip Limitation of Flexion Higher than from March 9, 2021 The right hip disability, based on limitation of flexion, is assigned a noncompensable (0 percent) disability rating from June 29, 2015 to March 9, 2021, and a 20 percent disability rating from March 9, 2021 under DC 5252. 38 C.F.R. § 4.71a. After review of the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the criteria for a rating of 20 percent under DC 5252 for the right hip disability have been met from June 29, 2015 to March 9, 2021. As explained above the Veteran has endorsed flare ups of the right hip during previous VA examinations in September 2015, March 2020, and October 2020; however, the September 2015, March 2020, and October 2020 VA examiners did not adequately address functional limitations during flare ups. Sharp, 29 Vet. App. at 34-36. During the March 2021 VA examination, the VA examiner assessed initial range of motion measurements with limitation of flexion to 30 degrees. The VA examiner also opined as to range of motion measurements during flare ups, and estimated limitation of flexion to 25 degrees. As mentioned above, it appears that the March 2021 VA examination was conducted during a flare up period as range of motion measurements prior to and after the March 2021 VA examination reflect flexion that ranged between 70 to 110 degrees. Additionally, a March 2021 VA treatment note indicates that the Veteran complained of significant right hip pain a few days prior to the March 2021 VA examination, but an assessment of his functional abilities was limited due to inability to conduct a physical examination at that time. Because the right hip disability demonstrated limitation of flexion to 25 degrees including during flare up, the September 2021 rating decision awarded a 20 percent rating under DC 5252 effective from March 9, 2021. Resolving reasonable doubt in the Veteran's favor, a higher initial rating of 20 percent under DC 5252 for the right hip disability based on limitation of flexion is also warranted for the portion of the rating period from June 29, 2015 to March 9, 2021. 38 C.F.R. §§ 4.3, 4.7. Regarding the portion of the initial rating period from March 9, 2021, forward, a rating in excess of 20 percent is not approximated under DC 5252 for right hip flexion. As previously discussed, range of motion measurements throughout the rating period on appeal reflect flexion limited to 25 degrees or greater, to include during flare ups. Therefore, an initial rating higher than 20 percent under DC 5252 for the right hip disability is not warranted for any period. Additionally, the evidence of record does not show that the right hip disability manifested in ankylosis of the right hip, a flail hip joint, or impairment of the femur; therefore, DCs 5250, 5254, and 5255 are not applicable. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.