Citation Nr: 21076419 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-12 355 DATE: December 23, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and bipolar disorder, to include as secondary to service-connected headaches, is denied. Entitlement to an initial rating greater than 10 percent for osteoarthritis of the right knee is denied. Entitlement to an increased rating greater than 10 percent prior to November 12, 2018, for right hip degenerative joint disease, limitation of flexion, is denied. Entitlement to an initial rating greater than 10 percent prior to November 12, 2018, for right hip degenerative joint disease, limitation of abduction, is denied. Entitlement to a compensable initial rating prior to November 12, 2018, for right hip degenerative joint disease, limitation of extension, is denied. Entitlement to a disability rating greater than 50 percent from January 1, 2020, for status post total hip arthroplasty is denied. Entitlement to a compensable initial rating for scars, right lower extremity, residuals of right femur fixation, patellar reconstruction, right ankle open reduction and fixation and right total hip replacement is denied. FINDINGS OF FACT 1. The Veteran's claimed acquired psychiatric disorder was not incurred in service, psychosis was not manifested to a compensable degree within one year of separation from service, and an acquired psychiatric disorder is not otherwise caused by service. 2. The Veteran's right knee osteoarthritis is manifested by pain and noncompensable limitation of motion and function. 3. Prior to November 12, 2018, the Veteran's right hip disability was manifested by pain with noncompensable limitation of flexion, extension, and abduction. 4. From January 1, 2020, the Veteran's right hip disability is not manifested by markedly severe residual weakness, pain, or limitation of motion following implantation of the prosthesis. 5. The Veteran's right lower extremity scars are not painful, unstable, or of sufficient size to warrant a compensable rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2021). 2. The criteria for an increased rating greater than 10 percent for osteoarthritis, right knee, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5010-5260 (2021). 3. Prior to November 12, 2018, the criteria for an increased rating greater than 10 percent for right hip degenerative joint disease, limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5252-5003 (2021). 4. Prior to November 12, 2018, the criteria for an increased rating greater than 10 percent for right hip degenerative joint disease, limitation of abduction, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5003-5253 (2021). 5. Prior to November 12, 2018, the criteria for a compensable initial rating for right hip degenerative joint disease, limitation of extension, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5003-5251 (2021). 6. From January 1, 2020, the criteria for an increased rating greater than 50 percent for status post total hip arthroplasty have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5054 (2021). 7. The criteria for a compensable rating for scars on the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DC 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Air Force from May 1981 to February 1984. The Board remanded the issues in September 2018. At that time, the remand included the issue of entitlement to service connection for traumatic brain injury (TBI). A May 2020 rating decision granted entitlement to service connection for TBI to include blackouts and nausea and assigned an effective date and rating for the disability. The foregoing constitutes a complete grant of benefits for this issue and, as such, it no longer is before the Board. The May 2020 rating decision also granted a 50 percent rating effective January 1, 2020, for the Veteran's right hip disability, combining the three prior separate ratings for the right hip disability for limitations of flexion, abduction, and extension. As this rating does not represent the highest possible rating, the matter remains before the Board. In addition, the rating decision assigned a temporary 100 percent rating for the right hip from November 12, 2018, through December 31, 2019. As this is a total grant of benefits for that period, the Board will not consider that period further. A September 2021 rating decision granted entitlement to service connection for degenerative arthritis, status post right ankle fracture and open reduction and internal fixation (ORIF) and assigned a disability rating and effective date for the disability. The issue of entitlement to service connection for a right ankle disability had been remanded by the Board in September 2018. As the September 2021 determination constituted a complete grant of benefits as to the right ankle issue, the Board will not consider it further herein. An October 2021 rating decision granted entitlement to a 10 percent rating for the Veteran's right knee arthritis for the entire appellate time period. Prior to the October 2021 rating decision the right knee disability had a 10 percent rating only from August 13, 2013. As this rating is not the maximum available rating, the matter remains before the Board. In addition, the rating decision granted entitlement to service connection for multiple right lower extremity scars. The contemporaneous October 2021 Supplemental Statement of the Case (SSOC) considered the scar rating to constitute a part of the increased rating claims for the right knee and hip. As such, the matter is before the Board. Service Connection 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Certain diseases, to include psychoses, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. To establish a right to compensation for a present disability, an appellant must show: "(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 or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has an acquired psychiatric disorder that began during service or was otherwise caused by service. In the alternative, he alleges that the acquired psychiatric disorder was caused or aggravated by a service-connected disability. The Veteran's service treatment records include a normal psychiatric evaluation in October 1980, prior to entrance into service. In a contemporaneous Report of Medical History, the Veteran reported a history of frequent trouble sleeping and nervous trouble. The examiner noted that the nervous trouble was associated with occasional headaches and the sleep difficulties were "occasional." In February 1982, the Veteran was involved in a motorcycle accident. In July 1983, the Veteran tested positive for marijuana. The Veteran's personnel records indicate that in August 1983 he was reprimanded for a positive urinalysis for marijuana. In September 1983, the Veteran was reprimanded for an incident resulting damage to personal property as the driver of the vehicle the Veteran was responsible. The Veteran's September 1983 performance evaluation noted that he needed to improve his overall attitude towards accepting rules and regulations and had made little improvement despite counseling. In November 1983, a rehabilitation committee determined that the Veteran had failed rehabilitation because he continued to use marijuana. Ultimately, the Veteran received a general discharge under honorable conditions for failing his drug rehabilitation course. It is unclear precisely when the Veteran was diagnosed with an acquired psychiatric disorder after service, but VA and private treatment records from 2006 note a past history of bipolar disorder and PTSD. In December 2019, the Veteran was afforded a VA PTSD examination. The examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD under the DSM-5 but did meet the criteria for diagnoses of unspecified depressive disorder and stimulant (cocaine) use disorder, severe, in sustained remission. The Veteran reported that he had behavioral problems in school prior to service, estimating that he had been suspended 5 times "all for defending myself" from bullies. The Veteran denied any in-service disciplinary problems, but the examiner noted that he had been dismissed from service for "drug abuse rehabilitation failure." The Veteran, by contrast, reported that his discharge from service was due to: "I got caught in the women's dormitory, that wasn't a good thing, but in my defense, she invited me up so." The most stressful in-service incident for the Veteran was in February 1982 when he was involved in a motorcycle accident as a passenger when he was hit by a car in the leg where he suffered multiple broken bones. The Veteran denied any other in-service stressful incidents. The examiner discussed the Veteran's post-service treatment history. Following examination, the examiner concluded that it was less likely than not that the Veteran's diagnosed psychiatric disabilities were incurred in or caused by service or any in-service stressor. In addition, there was no evidence to suggest that the Veteran's diagnosis was aggravated beyond its natural progression by an in-service related event. The rationale noted that the Veteran's statements at the time of examination were "very inconsistent" with the claims file and the electronic medical records, which rendered his self-reports unreliable. The Veteran's October 1980 enlistment examination indicated issues with nervous trouble and endorsed frequent trouble sleeping and a history of treatment for a mental condition. Specifically, the Veteran reported "3rd grade, I didn't want to go, I hated school." The foregoing also indicated a history cannabis use before service, but the Veteran denied these issues when asked about pre-military mental health problems during the December 2019 VA examination. The examiner noted that records also indicated pre-military behavioral issues, which suggested his mental health problems pre-dated his active service. Based on the foregoing, the medical professional concluded that the disability was not secondary to his service-connected disabilities. The Veteran did have a long history of substance abuse issues, which could be contributing to his mental health symptoms. The Veteran had been extremely guarded and vague when asked about these issues during the December 2019 VA examination. At that time, the Veteran minimized his history of substance abuse. Finally, the Veteran had numerous other environmental stressors pre- and post-military that were contributing to his mental health disabilities. For the above reasons, the examiner also concluded that it was less likely than not that the Veteran's unspecified depressive disorder (that clearly and unmistakably existed prior to service) was aggravated beyond its natural progression by an in-service event or service-connected disability. A September 2021 medical opinion concluded that it was less likely than not that the Veteran's unspecified depressive disorder was secondary to his service-connected disabilities. The rationale noted that the Veteran's statements at the time of the December 2019 VA examination were "very inconsistent" with the claims file and the electronic medical records, which rendered his self-reports unreliable. The Veteran's October 1980 enlistment examination indicated issues with nervous trouble and endorsed frequent trouble sleeping and a history of treatment for a mental condition. Specifically, the Veteran reported "3rd grade, I didn't want to go, I hated school." The foregoing also indicated a history cannabis use before service, but the Veteran denied these issues when asked about pre-military mental health problems during the December 2019 VA examination. The examiner noted that records also indicated pre-military behavioral issues, which suggested his mental health problems pre-dated his active service. Based on the foregoing, the medical professional concluded that the disability was not secondary to his service-connected disabilities. The Veteran did have a long history of substance abuse issues, which could be contributing to his mental health symptoms. The Veteran had been extremely guarded and vague when asked about these issues during the December 2019 VA examination. At that time, the Veteran minimized his history of substance abuse. Finally, the Veteran had numerous other environmental stressors pre- and post-military that were contributing to his mental health disabilities. For the above reasons, the clinician also concluded that it was less likely than not that the Veteran's unspecified depressive disorder (that clearly and unmistakably existed prior to service) was aggravated beyond its natural progression by an in-service event or service-connected disability. The question for the Board is whether the Veteran has one or more current acquired psychiatric disorders that began during service, was otherwise caused by service, or was caused or aggravated by a service-connected disability. Based on the evidence of record, the Board concludes that one was not. In reaching that conclusion, the Board finds the December 2019 VA examination report and the September 2021 addendum the most probative evidence of record. The examiner's opinions were based on an interview of the Veteran, his reported medical history, review of the claims file and medical evidence, and physical examination. Further, a complete and thorough rationale was provided for the opinions rendered. The examiner concluded that the Veteran's diagnosed acquired psychiatric disorders were not incurred in service, otherwise caused by service, or were caused or aggravated by a service-connected disability. The rationale for the opinions was that the Veteran had pre-service problems that could have indicated pre-service onset of his mental health problems and the Veteran also had multiple pre- and post-service non-service related issues that were the most likely cause of the Veteran's mental health problems. The examiner also specifically found the Veteran evasive and inconsistent in his answers during the examination, which made his lay statements less probative. The Board recognizes that the September 2021 addendum opinion did not specifically state that the Veteran's mental health problems were not aggravated by his service-connected disabilities. That said, the examiner specifically discussed how unrelated pre- and post-service stressors were the most likely basis for the disabilities. In context, the Board concludes that the foregoing opinion encompasses both causation and aggravation, as the examiner clearly considered whether there was any relationship between the acquired psychiatric disorders and a service-connected disability, but instead attributed the entirety of the problems to unrelated factors. Thus, the examiner implicitly contemplated both causation and aggravation. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293-294 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). While the appellant believes his claimed acquired psychiatric disorders are related to an in-service injury, event, or disease or was caused or aggravated by a service-connected disability, he is not competent to provide a nexus opinion in this case. This issue is medically complex and given his inconsistent answers on related factors, as discussed by the December 2019 examiner, the Board finds his contentions to be of extremely limited probative value. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence of record. In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C. § 5107(b); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 2. Entitlement to an initial rating greater than 10 percent for osteoarthritis of the right knee Historically, the Veteran's right knee chondromalacia and left knee postoperative residuals of anterior cruciate ligament repair has been rated under DC 5210-5260, for traumatic arthritis (DC 5010) and limitation of flexion of the knee (DC 5260). In this regard, the Board notes that hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The Veteran contends that his current 10 percent rating does not accurately reflect the severity of his condition. Prior to February 7, 2021, DC 5010 provided that traumatic arthritis is to be rated under DC 5003. Under DC 5003 degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. From February 7, 2021, DC 5010 was altered to remove the instruction for rating under DC 5003. Instead, ratings under DC 5010 are to be rated as "limitation of motion, dislocation, or other specified instability under the affected joint." The general rating schedules for limitation of motion of the knee are 38 C.F.R. § 4.71a, DCs 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. Under DC 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees. A 20 percent disability rating is assigned for extension limited to 15 degrees. A 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a. The Board also observes that the words "slight," "moderate" and "severe" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran received a VA hip examination in October 2013. The Veteran had pain and a grinding sensation in the right knee that was worse in cold weather, weight bearing activities, and going up stairs. He could not run, bike, play softball, or bowl. There were flare-ups in the cold weather, weight bearing activities, and going up stairs. Range of motion testing showed flexion to 130 degrees and full extension. There was no objective evidence of painful motion. Muscle strength and joint stability was normal. There was no history of patellar subluxation / dislocation. The Veteran underwent a VA knee examination in April 2015. The Veteran reported daily right knee pain of varying intensity that was worse with extended walking and climbing stairs. The Veteran was independent in his activities of daily living and could drive a car. If walking for 25 minutes or more, he had to stop and rest. He was no longer able to play sports as he used to do. It hurt to kneel on the right knee. The Veteran denied flare-ups of right knee pain. Range of motion testing of the right knee showed flexion to 120 degrees and full extension to 0 degrees. There was no evidence of pain with weight bearing or crepitus. Repetitive motion testing did not result in further loss of motion. Muscle strength testing was normal. There was no ankylosis and there was no history of recurrent subluxation or lateral instability. Joint stability testing was normal. In March 2020, the Veteran reported that he was doing very well and remained very active. He had been very active physically carrying heavy boxes and furniture. In September 2020, the Veteran denied any significant joint pain other than his low back. The Veteran had an August 2021 VA knee examination. Current right knee symptoms included constant mild pain. The right knee impacted the Veteran's functioning in that he could not use ladders very well, could not "push off," had to use handrails on stairs, and had difficulty with or was unable to play softball, bowl, or jog. There were flare-ups during cold, rainy weather or barometric changes in pressure. The flare-ups involved moderate to severe aching pain with crepitus and swelling. Sometimes the flare-ups resulted in limping. The flare-ups lasted for hours. There was no right knee instability, effusion, or recurrent subluxation. On active and passive range of motion testing, the Veteran had normal range of motion from 0 to 140 degrees. There was pain in both flexion and extension on weight-bearing and active and passive motion. The pain affected the Veteran's prolonged ability to stand and walk. The Veteran had tenderness and crepitus. There was no further loss of motion over time. The examiner indicated that during flare-ups there would be no loss of motion, but there would be functional loss due to pain. Although not specified, the implication is that there would be additional limitations in mobility endurance but not to the extent that the Veteran could not walk or climb stairs or continue to drive an automobile. As noted below, mobility was also limited by the right hip and following a total hip replacement, the Veteran was able to perform activities such as lifting boxes and moving furniture. There was no muscle atrophy or ankylosis. There was no meniscal problems or patellar instability. The Board concludes that the evidence of record shows right knee osteoarthritis more nearly approximates a 10 percent disability under DC 5010-5260 for the entire appellate time period under both the old and revised DCs. See 38 C.F.R. § 4.7. The most severe limitation of motion, including consideration of limitation of function based on repetitive motion, was flexion limited to 120 degrees in each knee. Thus, there is no basis for assigning a rating higher than 10 percent under DC 5260 for the knee. Similarly, the Veteran does not meet the criteria for a higher or separate rating based on limitation of extension under DC 5261, as he retains full extension of the knee. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has considered the possibility of a higher or alternative rating under a different DC can be applied. The Board notes that other DCs relating to knee disorders include DC 5256 (ankylosis of the knee), DC 5257 (recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (removal of semilunar cartilage), DC 5262 (impairment of the tibia and fibula), and DC 5263 (for genu recurvatum). As noted, the Veteran's right knee disability is not manifested by impairment of the tibia or fibula or genu recurvatum. Thus, DCs 5262 and 5263 are not applicable. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran is able to move his right knee with some limitation of motion, so it is clearly not ankylosed, and DC 5256 is not applicable. DCs 5258 and 5259 are not applicable because the Veteran does not have meniscal impairment, dislocation, or removal. Similarly, the Veteran does not have a history of recurrent subluxation or lateral instability, so DC 5257 is not for application. The Board recognizes that the medical evidence shows some impairment of right knee function. For example, the Veteran does complain of right knee pain. VA examinations, however, have shown ranges of flexion and extension of the knee that would not warrant a compensable rating under DC 6261 or a rating greater than 10 percent under DC 5260 (the current ratings), even accounting for decreased motion on repetition. In general, evaluation of a service-connected disability involving a joint requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. In this case, the rating assigned under DC 5010-5260 contemplates the Veteran's reported symptoms, including their effect on his functioning with repetitive motion. As noted, the VA examinations revealed no additional limitation of motion resulting from repetitive use that would meet the criteria for compensable ratings under either DCs 5260 or 5261. Instead, the rating under DC 5010-5260 historically was assigned for the Veteran's pain and limitation of function that limits motion to a noncompensable level. As such, the Board finds that the ratings currently assigned for the Veteran's knee disability already contemplate the degree of functional loss demonstrated. As shown above, and as required by Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. In this case, the Board finds no provision upon which to assign a rating greater than 10 percent under DC 5010-5260. There is no basis for assigning higher or separate ratings for any other timeframe during the appellate period. 3. Entitlement to an increased rating greater than 10 percent prior to November 12, 2018, for right hip degenerative joint disease, limitation of flexion Entitlement to an initial rating greater than 10 percent prior to November 12, 2018, for right hip degenerative joint disease, limitation of abduction 4. Entitlement to a compensable initial rating prior to November 12, 2018, for right hip degenerative joint disease, limitation of extension 5. Entitlement to an initial rating greater than 50 percent from January 1, 2020, for status post total hip arthroplasty The Veteran contends that he is entitled to a higher rating than assigned because the ratings do not accurately reflect the severity of his disability during the relevant time periods. For the period prior to December November 12, 2018, the Veteran's right hip disability is rated under 38 C.F.R. § 4.71a, DCs 5003-5251, 5003-5253, and 5252-5003 for separate limitations of extension, flexion, and abduction. Under DC 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5251. Under DC 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. Under DC 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. 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). Prior to the regulatory change, under DC 5054, replacement of the hip with a prosthesis warrants a 100 percent schedular evaluation for a one-year period following implantation of the prosthesis. A 90 percent evaluation is warranted if following the implantation there is painful motion or weakness such as to require the use of crutches. A 70 percent evaluation is warranted if there is markedly severe residual weakness, pain, or limitation of motion following implantation of the prosthesis. Chronic residuals consisting of moderately severe weakness, pain or limited motion may be rated 50 percent disabling. A minimum 30 percent rating may also be assigned. A 90 percent rating is the highest rating permitted for the hip, aside from the periods where a 100 percent rating is expressly permitted. As of February 7, 2021, under the amended criteria, at the conclusion of the 100 percent evaluation period under DC 5054, resurfacing is evaluated under DCs 5250 through 5255. Here, the Veteran underwent a total left hip arthroplasty, so the new criteria regarding resurfacing is not for application. Additionally, as noted above, the Veteran is already in receipt of the prescribed temporary total rating and has not appealed the time period for that rating. Thus, the question for consideration from January 1, 2020, is whether the Veteran's residuals are minimum, moderately severe, markedly severe, or of sufficient pain and weakness that crutches are required. 38 C.F.R. § 4.71a, DC 5054. The terms slight, moderate, and marked as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In his August 2013 claim for increased rating the Veteran noted that his right hip was "deteriorating." The Veteran received a VA hip examination in October 2013. He had pain in the right hip during weight bearing activities. Sometimes he felt a popping sensation with sharp pain in the hip. The Veteran denied flare-ups of pain. Range of motion testing showed flexion to 115 degrees, extension to greater than 5 degrees, abduction to more than 10 degrees, and adduction was not limited such that the Veteran could not cross his legs. Repetitive motion testing showed no further loss of motion. Muscle strength was normal and there was no ankylosis. In February 2015, the Veteran had a VA hip examination. The Veteran reported right hip pain and limited motion. He also had difficulty walking due to pain less than a quarter mile in total. There was significant pain after 100 yards of walking. He could perform all interior activities of daily living, but outside activities such as shoveling snow caused increased right hip pain. There were flare-ups of right hip pain 1 to 2 times daily last 2 to 24 hours. There was functional loss as discussed above. Right hip range of motion testing showed flexion to 80 degrees, extension to 10 degrees, abduction to 15 decrease, adduction to 10 degrees (and the Veteran was unable to cross his legs), external rotation to 25 degrees, and internal ration to 10 degrees. The Veteran had difficulty walking, undressing, and taking off his shoes. Right hip muscle strength was 3 out of 5 in the flexors and 4 out of 5 in the extensors and abductors. There was no muscle atrophy or ankylosis. The Veteran underwent a VA hip examination in April 2015. The Veteran reported daily right hip pain with difficulty bending for activities such as tying shoes that resulted in higher levels of pain. The pain also was worse with cold, extended walking, and climbing stairs. The Veteran had to stop and rest if walking for 25 minutes or more. The Veteran denied right hip flare-ups of pain. There was functional loss due to the limitations discussed above. Range of motion testing of the right hip showed flexion to 45 degrees (out of 125 degrees) and normal extension (30 degrees), abduction (45 degrees), adduction (25 degrees), external rotation (60 degrees), and internal rotation (40 degrees). The above notwithstanding, the examiner indicated that the Veteran had limitation of adduction that prevented him from crossing his legs. The foregoing limited motion affected the Veteran's ability to walk. There was noted pain in all planes of motion. Repetitive use testing did not result in further loss of motion. The Veteran walked with a limp. Muscle strength testing showed decreased strength of 3 out of 5 for the right hip flexors, 2 out of 5 for the right hip extensor muscles, and 2 out of 5 strength for right hip abductor muscles. That said, there was no muscle atrophy or ankylosis. In November 2016, the Veteran reported ongoing right hip pain that was worse with tying his right shoe, climbing stairs, getting in and out of his truck, and walking. Range of motion testing of the right hip showed flexion to 85 degrees, abduction to 50 degrees and internal and external rotation could not be assessed due to pain. In January 2017, the Veteran had mild right hip pain that was noted as a chronic complaint. Treatment records otherwise document ongoing complaints of chronic right hip pain. The Veteran underwent a December 2019 VA hip examination, but as this examination occurred during a period where he is in receipt of a temporary 100 percent rating further consideration is not warranted. In March 2020, the Veteran reported that he was doing very well after his right hip replacement and remained very active. He had been very active physically carrying heavy boxes and furniture. He denied any right hip pain. In September 2020, the Veteran denied any significant joint pain other than his low back. He specifically denied any right hip pain and was doing much better. In March 2021, the Veteran again denied any right hip pain. The Veteran had an August 2021 VA hip examination. Current right hip symptoms included mild pain and limited range of motion. Since his 2019 hip replacement the right hip symptoms were much improved, but he did experience intermittent aches and pains. The pain got sharper and more irritable in cold weather. He could not run or jog. Right hip flare-ups occurred when walking after sitting and resulted in mild to moderate groin pain. Cold weather increased stiffness and aching pain in the hip. Right hip range of motion was normal, but there was pain in flexion, abduction, external rotation, extension, adduction, and internal rotation. Motion was the same in active and passive ranges of motion. There was no further loss of motion with repetitive motion testing. Flare-ups were not estimated to cause further loss of motion. There was no right hip ankylosis or related muscle atrophy. There was no malunion or non-union of the femur, flail hip joint, or leg length discrepancy. The functional impact on the Veteran's occupational functioning due to the right hip disability was problems with the prolonged ability to sit, stand, or walk. For the period prior to November 12, 2018, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent under DCs 5252-5003 or 5003-5253 and that a compensable rating is not warranted under 5003-5251 for any period. The Board recognizes that the Veteran experienced significant pain and some degree of functional loss prior to his total hip replacement. That said, the Veteran did not have documented limited flexion to 30 degrees of less, extension limited to 5 degrees, or limitation of abduction beyond 10 degrees. Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating that required for a higher rating under DCs 5251, 5252, or 5253. The Board has also considered the other DCs pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Veteran prior to November 12, 2018, despite limitations due to pain did not have ankylosis of the hip. As such, a rating under DC 5250 is not warranted. Similarly, he did not have a flail joint at the hip or impairment of the femur, so ratings under DCs 5254 and 5255 are not warranted. For the period from January 1, 2020, the Board finds that a rating greater than 50 percent is not warranted. During multiple treatment visits, the Veteran specifically denied any right hip pain and reported significant improvement since the hip replacement. During the August 2021 VA examination, the Veteran described only minor pain and loss of motion. In light of the foregoing, the Board can find no basis for concluding that the Veteran's right hip symptoms more closely approximate markedly severe or require the use of crutches. The Veteran has not argued otherwise. As such, a higher rating under DC 5054 is not warranted for any period from January 1, 2020. The Board has considered whether a higher or separate rating would be warranted under any other DC for the period from January 1, 2020, but as DC 5054 is the most appropriate DC based on the Veteran's right hip replacement consideration of other DCs is not necessary. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a higher rating for the right hip disability for any period on appeal. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 6. Entitlement to a compensable initial rating for scars, right lower extremity, residuals of right femur fixation, patellar reconstruction, right ankle open reduction and fixation and right total hip replacement The Veteran contends that the current noncompensable rating under DC 7802 does not accurately reflect the severity of his condition. Scars are evaluated based on their location, size, appearance, and associated functional limitations. 38 C.F.R. § 4.118, DC 7800-7805. DC 7800 provides ratings for disfigurement of the head, face, or neck. As the Veteran's scar is not to the head, face, or neck, it is not applicable in this case. DC 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to DC 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to DC 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Note (1) for that code defines an unstable scar as one where, for any reason, there is frequent loss of skin covering over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. DC 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. The Veteran underwent a VA scar examination in April 2015. The examiner diagnosed knee and hip scars. The scars were not painful, unstable, or due to burns. One scar was 19 cm by 0.5 cm, another scar was 11 by 0.5 cm, and the third was 10 by 0.25 cm. The approximate total area of the scars on the right lower extremity was 15 square centimeters and 2.5 square centimeters involving the posterior trunk. The Veteran had an August 2021 VA scar examination. The Veteran had diagnoses of intramedullary rod fixation of right femur scars, patellar reconstruction and screws fixation surgical scars, right ankle open reduction internal fixation with screws scars, and right hip replacement scar. None of the scars were painful, had frequent loss of covering, or were due to burns. All scars had no underlying tissue damage and the approximate total area was 27.10 square centimeters. The Board finds that a compensable rating for the right lower extremity scars is not warranted under any scar DC. As noted above, the Veteran's scars are not painful, unstable, deep, and are not of a size sufficient to warrant a compensable rating under any of the scar DCs. The Veteran has not contended otherwise. As such, the Board finds that a compensable rating for his right lower extremity scars is not warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.