Citation Nr: A21020406 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 190201-2094 DATE: December 22, 2021 ORDER The issue of entitlement to a rating higher than 40 percent for the right knee disability is dismissed. The issue of entitlement to a rating higher than 30 percent for the right hip disability is dismissed. The issue of entitlement to a compensable rating for bilateral hearing loss is dismissed. The issue of entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss is dismissed. The issue of entitlement to service connection for a dental disability is dismissed. Service connection for a left ankle disability is granted. Service connection for a left hip disability is granted. Service connection for a lumbar spine disability is granted. An initial rating higher than 10 percent for right hip limitation of extension is denied. Entitlement to an initial rating higher than 10 percent for right thigh impairment is denied. An initial rating of 30 percent for right hip limitation of flexion is granted, subject to the laws and regulations governing the payment of monetary benefits. For the period prior to December 19, 2018, a rating higher than 10 percent for service-connected right ankle lateral collateral ligament sprain is denied. For the period beginning December 19, 2018, a 20 percent rating for service-connected right ankle lateral collateral ligament sprain is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted effective May 21, 2018. REMANDED Entitlement to service connection for a sinus disability is remanded. Entitlement to a temporary total disability rating for February 2017 left knee surgery is remanded. Entitlement to a rating higher than 10 percent for limitation of extension of the left knee is remanded. Entitlement to a rating higher than 20 percent for instability of the left knee is remanded. Entitlement to a higher rating for right knee disability evaluated as 10 percent disabling prior to December 19, 2018 (excluding a 100 percent rating effective from November 17, 2016 to February 28, 2017) is remanded. Entitlement to TDIU prior to May 21, 2018 is remanded. FINDINGS OF FACT 1. At the October Board hearing, the Veteran indicated that he wished to withdraw his appeal as it pertained to the following issues: entitlement to a rating higher than 40 percent for a right knee disability; entitlement to a rating higher than 30 percent for a right hip disability; entitlement to a compensable rating for bilateral hearing loss; entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss; and entitlement to service connection for a dental disability. 2. The evidence is in equipoise as to whether the Veteran's lumbar spine disability is etiologically attributed to his period of service. 3. The Veteran's left ankle tendonitis and chronic strain is etiologically related to his service-connected bilateral knee disabilities. 4. The Veteran's left hip bursitis is etiologically related to his service-connected bilateral knee disabilities. 5. The Veteran's right hip disability is assigned the maximum 10 percent disability rating for limitation of extension. 6. The evidence is at least evenly balanced as to whether, throughout the pendency of the claim, the functional impairment of the Veteran's right hip limitation of flexion more nearly approximated flexion limited to 30 degrees. 7. The evidence is against a finding that the Veteran's right thigh impairment is manifested by limitation of abduction causing motion lost beyond 10 degrees. 8. Prior to December 19, 2018, the Veteran's right ankle lateral collateral ligament sprain has resulted in no more than moderate limitation of motion when considering functional impairment on use or during flares. 9. From December 19, 2018, the Veteran's service-connected right ankle lateral collateral ligament sprain was manifested by marked limitation of motion. 10. As of May 21, 2018, the Veteran's service-connected disabilities rendered him unable to obtain and maintain gainful employment on a schedular basis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as it pertains to the issue of entitlement to a rating higher than 40 percent for the right knee disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal as it pertains to the issue of entitlement to a rating higher than 30 percent for the right hip disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the appeal as it pertains to the issue of entitlement to a compensable rating for bilateral hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of the appeal as it pertains to the issue of entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of the appeal as it pertains to the issue of entitlement to service connection for a dental disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 6. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for service connection for left ankle tendonitis and chronic strain as secondary to service-connected bilateral knee disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for service connection for a left hip bursitis as secondary to service-connected bilateral knee disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 9. The criteria for an initial 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, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5251. 10. Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial disability rating of 30 percent 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, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5252. 11. The criteria for an initial rating higher than 10 percent for right thigh impairment have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5253. 12. For the period prior to December 19, 2018, the criteria for an initial rating higher than 10 percent for service-connected right ankle lateral collateral ligament sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.71, 4.71a, DC 5271. 13. For the period beginning December 19, 2018, the criteria for a 20 percent rating for service-connected right ankle lateral collateral ligament sprain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.71, 4.71a, DC 5271. 14. As of May 21, 2018, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1988 to October 1994. Procedurally, an August 2017 decision of the Department of Veterans' Affairs (VA) Regional Office (RO) (hereinafter agency of original jurisdiction (AOJ)) granted service connection for right ankle disability and assigned an initial 10 percent rating effective July 12, 2017; granted service connection for right hip degenerative arthritis disability (as well as right hip flexion and right hip thigh impairment) and assigned a 10 percent rating effective July 12, 2017; denied entitlement to TDIU; and denied service connection for sinus disability and dental disability. An October 2017 AOJ decision denied service connection for left ankle and left hip disabilities. The Veteran timely appealed these decisions under the Legacy appeal system in notices of disagreements submitted in November 2017. On April 20, 2018, the Veteran submitted an April 11, 2018 Independent Medical Examination (IME) report. On May 8, 2018, the Veteran elected to opt into the Rapid Appeals Modernization Program (RAMP) which withdrew the Legacy system appeals above, and to have all these issues reviewed in the higher-level review process which would be based "upon the evidence submitted to VA as of the date of this election." On May 21, 2018, the Veteran submitted a duplicative copy of the April 11, 2018 IME report. On January 4, 2019, the AOJ notified the Veteran of its determination that a higher-level review discovered a duty to assist error in gathering evidence to support his claims, and that corrective action was to be taken to further process his RAMP claim. In January 2019, the AOJ issued another RAMP decision as follows: assignment of a 40 percent rating for right knee patellofemoral syndrome under DC 5261 effective December 29, 2018; assignment of a 30 percent rating for right hip flexion under DC 5003-5252 effective December 29, 2018; a continued 10 percent rating for left knee patellofemoral syndrome under DC 5261; a continued 10 percent rating for right ankle disability under DC 5271; a continued 10 percent rating for right hip degenerative arthritis under DC 5003-5251; continued a noncompensable rating for bilateral hearing loss; continued a noncompensable rating for right thigh impairment under DC 5003-5253; denied a temporary total evaluation due to treatment of a service-connected disability; denied entitlement to an effective date earlier than February 17, 2017 for the award of service connection for bilateral hearing loss; denied entitlement to TDIU; and denied service connection for lumbosacral strain, sinus disability, a dental disorder, a left ankle condition and a left hip condition. The Board observes that the AOJ found that the claims addressed in the January 2019 RAMP decision stemmed from a supplemental claim filed on November 19, 2018. The Board disagrees, and finds that the claims stem from July 12, 2017 application for benefits which led the original Legacy AOJ rating decision that were subsequently converted to the RAMP appeal system in May 2018. On February 1, 2019, the Veteran elected to continue his RAMP appeal to the Board in the hearing lane. Therefore, the Board may only consider the evidence of record at the time of the initial rating decision as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board further notes that the AOJ initially adjudicated the Veteran's increased rating claim for his bilateral knee disabilities in October 2015. He was afforded a VA examination in December 2015 and his claim was readjudicated by way of a January 2016 rating decision. In May 2016, the Veteran timely filed a Notice of Disagreement, which AOJ did not address. Subsequently additional new and material evidence, to include medical records, was added to the claims file. Pursuant to 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. As new and material evidence was received within one year of the issuance of the October 2015 rating decision, the Board finds that this appeal, as it pertains to an increased rating for the bilateral knee disabilities, stems from the October 2015 claim. Withdrawn Claims Entitlement to a Rating Higher than 40 Percent for Right Knee Entitlement to a Rating Higher than 30 Percent for Right Hip Entitlement to a Compensable Rating for Bilateral Hearing Loss Entitlement to an Earlier Effective Date for Bilateral Hearing Loss Service Connection for a Dental Disability The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant indicated that he was satisfied with the outcome of his appeal regarding the issues of entitlement to a rating higher than 40 percent for a right knee disability; entitlement to a rating higher than 30 percent for a right hip disability; entitlement to a compensable rating for bilateral hearing loss; entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss; and entitlement to service connection for a dental disability, and as such, wished to withdraw these issues on appeal. See Board Hearing Transcript, pp. 13-15. The transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). Accordingly, the Board finds that the Veteran's withdrawal of these claims was well informed; thus, the Board does not have jurisdiction to review these issues and the appeal, as it pertains to these issues, is dismissed. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, may be service connected on an aggravation basis. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Lay persons are competent to provide opinions on some medical issues falling within the realm of common knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lumbar Spine The Veteran is seeking service connection for a lumbar spine disability, which he contends is related to his in-service duty of lifting and moving heavy generators. See Board Hearing Transcript, pp. 17-20. For the ensuing reasons, the Board agrees with the Veteran and finds that service connection for a lumbar spine is warranted. There are two opposing medical opinions of record. In a July 2015 VA nexus opinion, the examiner found that it was less likely than not that the Veteran's back disability was incurred in or caused by service. In so finding, the examiner reasoned that the Veteran's current disability was manifested by very symptomatic and disabling lumbar radiculopathy with progressive symptoms within the last year. However, while the Veteran was treated for back problems during service, the examiner found that there was no indication that the Veteran manifested radicular symptoms during service to correlate with his current disability. Ultimately, the examiner found that the Veteran's current disability was related to nerve root impingement which was not a progression of his in-service complaints. Contrarily, in April 2018, the Veteran underwent an independent medical evaluation. At that time, the examiner recounted the Veteran's medical history, to include his period of service. Ultimately, the examiner found that it was more likely than not that the Veteran's current lumbosacral strain and lumbar intervertebral disc syndrome was due to his period of service. In so finding, the examiner found that the Veteran's duties, to include lifting generators, increased stress and strains on his lumbar spine during service. In light of the above, the Board finds that the evidence for and against the claim is at least in equipoise as to whether the Veteran's lumbar spine disability is attributable to his service. The opposing opinions of record are equally probative as to the issue of whether the Veteran's current lumbar spine disability is related to his period of service. When the evidence for and against a claim is in relative equipoise, by law, the Board resolves all reasonable doubt in the Veteran's favor. The Board emphasizes that this standard of proof is "unique" to the VA adjudicatory process in light of the fact that the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55. Therefore, the benefit of the doubt is resolved in favor of the Veteran and entitlement to service connection for a psychiatric disorder is granted. Left Ankle The Veteran contends that he has a left ankle disability, which he contends is secondary to his service-connected orthopedic disabilities. Specifically, the Veteran avers that he bilateral knee disabilities have caused impairment to his left ankle. See Board Hearing Transcript, pp. 28-30. As to the issue of etiology, there are two opinions of record. At the September 2017 VA examination, the examiner noted that the Veteran's medical record documents abnormalities of the left ankle, which the examiner diagnosed as tendonitis and chronic strain of the left ankle. Upon review of the record and examination of the Veteran, the examiner opined that the Veteran's left ankle strain was at least as likely as not proximately due to or the result of his service-connected disabilities. In so finding, the examiner reasoned that the Veteran's knee disabilities required him to compensate and place abnormal forces on the ankles, which over time causes chronic strains to occur. At the April 2018 IME, the examiner found that it was more likely than not that the Veteran's in-service duties, to include marching and lifting heavy generators, caused pressure on his ankles, which led to traumatic arthritis in his joints. Based on the above, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's left ankle disability is etiologically related to his service-connected orthopedic disabilities. In so finding, the Board finds that the most probative evidence on the issue of etiology is the September 2017 VA examination and positive nexus opinion. The examiner discussed the Veteran's relevant medical history, to include the symptoms of his orthopedic disabilities, and applied the specific facts of the Veteran's case to objective medical principles for the premise that the Veteran's left ankle disability was due to his bilateral knee disabilities. The Board finds that the opinion is competent, credible, and highly probative as to the issues of diagnosis and etiology. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no other opinions to the contrary. In sum, the evidence is in favor of the Veteran's claim. Accordingly, service connection for a left ankle disability is granted. Left Hip Similarly, the Board finds that service connection is warranted for the Veteran's left hip disability on a secondary basis. In relevant part, at the October 2017 VA examination, the examiner diagnosed left hip bursitis. Upon review of the record and examination of the Veteran, the examiner opined that the Veteran's left hip disability was at least as likely as not related to his bilateral knee disabilities. In so finding, the examiner reasoned that compensating for his bilateral knee pain caused abnormal forces on the hips which overtime caused degeneration of the joint. In addition, at the April 2018 IME, the examiner found that it was more likely than not that the Veteran's in-service duties, to include marching and lifting heavy generators, caused pressure on his hips, which led to traumatic arthritis in his joints. Based on the above, the Board finds that service connection for a left hip disability is warranted. The only medical opinions of record establish that the Veteran's left hip disability was etiologically related to either his period of service or his service-connected knee disabilities. The examiners' opinions were based on review of the Veteran's medical history along with sound medical principles. The Board acknowledges that the October 2017 VA examiner checked the box indicating that a preexisting disability was aggravated by service, rather than the box indicating that a claimed disability was aggravated by a service-connected disability. However, the Board reasons that the checked box was likely a typographical error, as the rationale provided is premised on the criteria related to secondary service connection rather than in-service aggravation. Thus, when viewing the medical nexus opinions in the light most favorable to the Veteran, coupled with the fact that the examiners' opinions are based on an accurate factual premise, the Board finds that the positive nexus opinions are sufficient to support the claim. Notably, there are no probative opinions contradicting the positive nexuses. In sum, the evidence is in relative equipoise as to whether the Veteran's left hip disability is etiologically related to his service-connected bilateral knee disabilities. The claim is granted. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Court addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. In general, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that "within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise." Cullen v. Shinseki, 24 Vet. App. 74 (2010). The Board notes that, effective February 7, 2021, the applicable rating criteria for various musculoskeletal disabilities were revised. 85 Fed. Reg. 76453 (Nov. 30, 2020). When regulations are revised during an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The final rule did not specifically permit retroactivity of the changes. The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Right Hip Disability The Veteran is seeking a 30 percent rating for his right hip disability for the period prior to December 19, 2018. See Board Hearing Transcript, p. 14. During the relevant period, the Veteran's right hip disability was rated 10 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5003-5251 for limitation of extension and noncompensable pursuant to 38 C.F.R. § 4.71a, DC 5003-5252 for limitation of flexion. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Prior to December 19, 2018, DC 5003 instructs that arthritis is to be rated on the limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion of the specific joint involved does not rise to a compensable level under the appropriate diagnostic code, then a 10 percent minimum rating should be assigned. 38 C.F.R. § 4.71a, DC 5003. Under DC 5251, which addresses extension, a 10 percent rating is warranted when thigh extension is limited to 5 degrees. 38 C.F.R. § 4.71(a), Diagnostic Code 5251. Under DC 5252, which addresses flexion, a 10 percent rating is assigned when thigh flexion is limited to 45 degrees, a 20 percent rating is assigned when flexion is limited to 30 degrees, a 30 percent rating is assigned when flexion is limited to 20 degrees, and a 40 percent rating is assigned when flexion is limited to 10 degrees. 38 C.F.R. § 4.71(a), DC 5252. As it pertains to range of motion findings for the hip, separate ratings may be assigned for extension, flexion, abduction, adduction or rotation as they represent distinct disabilities. Normal hip motion is defined as flexion from zero to 125 degrees and abduction from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. Turning to the facts of the case, the Veteran filed a claim for service connection for his right hip condition in July 2017. At the August 2017 VA examination, the Veteran reported experiencing right hip pain, which continued to increase over the years. In terms of flare ups, the Veteran stated his pain increased, which caused difficulty with sitting in low chairs and weightbearing for prolonged periods. There was objective evidence of pain on both weight-bearing and non-weight bearing. Range of motion testing revealed flexion to 90 degrees and extension to 15 degrees; total range of motion of the right hip was 225 degrees. The examiner observed pain upon flexion, extension, and abduction; however, there was no evidence of localized tenderness or pain on palpation of the joint, nor was there evidence of crepitus. The Veteran was unable to perform repetitive use testing with at least three repetitions due to pain. The examiner found that pain would significantly limit functional ability of this hip with repeated use over time and during flare ups. There was no evidence of a reduction in muscle strength, nor was there evidence of muscle atrophy or ankylosis of the joint. Based on this examination, the AOJ granted service connection for right hip arthritis, limitation of flexion, and assigned a 10 percent disability rating based on painful motion. At the October 2017 VA examination, the Veteran described experiencing pain, stiffness, and weakness in both hips; his flare ups consisted of an increase in symptoms. Range of motion testing revealed flexion to 60 degrees and extension to 30 degrees. While the Veteran was able to cross his legs, he did exhibit decreased flexibility to due abnormal range of motion. There was pain upon weight-bearing and the examiner observed pain upon flexion, abduction, and adduction. The examiner also noted lateral hip tenderness; however, there was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. At the December 2018 VA examination, the Veteran reported worsening hip pain, which he stated made it difficult for him to stand or walk for prolonged periods of time. While the Veteran denied experiencing flare ups, in terms of functional impairment, the Veteran stated that he was unable to stand or sit for very long. Range of motion testing revealed flexion of the right hip to 20 degrees and extension to 5 degrees. While the Veteran was able to cross his legs, he experienced pain throughout range of motion testing. There was evidence of tenderness in the inner and outer hip. While there was evidence of pain with weightbearing, there was no objective evidence of crepitus, muscle atrophy, or ankylosis. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner found that pain would significantly limit functional ability with repeated use over time; however, there was no functional loss during flare ups. The Veteran endorsed a reduction in muscle strength in flexion, extension, and abduction. He used a cane constantly and a wheelchair occasionally for his hip conditions. Based on the above exam, the AOJ granted a 30 percent rating for right hip limitation of flexion, effective December 19, 2018, the date of the examination. Upon consideration of the evidence, the Board finds that a rating higher than 10 percent is not warranted for right hip limitation of extension. The currently assigned 10 percent rating is predicated on painful motion of the right hip demonstrated on examination. Notably, the currently assigned 10 percent rating is the maximum allowed under regulation. 38 C.F.R. § 4.71a, DC 5251. Because the Veteran is in receipt of the maximum rating under this code, a higher rating is not warranted. He has not described any signs, symptoms, or manifestations not contemplated by the schedular rating, particularly as actual functional impairment has been considered. 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Resolving all reasonable doubt in the Veteran's favor, the Board finds that an initial rating of 30 percent is warranted for limitation of flexion of the right hip. Notably, a 30 percent rating was granted effective December 2018, based on a contemporaneous examination. The Board finds that in the initial period, where limitation of flexion was rated noncompensable, the evidence, at the least, is in relative equipoise when the provisions of DeLuca, Correia, and Sharp, all supra, are considered. The evidence of the record documents the Veteran's continued complaints of pain, stiffness, and weakness of the right hip, along with flare ups and functional impairment with repetitive use. Given the August 2017 and October 2017 examination reports' indication of abnormal range of motion, the Veteran's descriptions of functional loss and impairment with flare ups and repetitive use, along with the examiners' opinions that the Veteran's right hip functional ability was significantly limited by pain with repetitive use over time and during flare ups, the evidence is at least evenly balanced as to whether the limitation of motion of the Veteran's right hip more nearly approximates that which is contemplated by a 30 percent rating pursuant to 38 C.F.R. § 4.71a, DC 5252. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial 30 percent disability rating for the Veteran's right hip limitation of flexion is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Right Thigh Impairment The Veteran's right thigh impairment is rated 10 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5253. DC 5253 addresses limitations on abduction and adduction of the hip. Under DC 5253, a 20 percent rating is warranted for limitation of abduction of the thigh with motion lost beyond 10 degrees, a 10 percent rating is warranted for limitation of adduction with the inability to cross legs, and a 10 percent rating is warranted for limitation of rotation with the inability to toe-out more than 15 degrees in the affected leg. 38 C.F.R. § 4.71(a), DC 5253. Turning to the facts of the case, at the August 2017 VA examination, right hip abduction was 30 degrees. The Veteran described difficulty sitting in low chairs. In subsequent VA examinations, the Veteran's right hip abduction was limited to 30 degrees, at worse and he was able to cross his legs. See VA Examinations dated October 2017, and December 2018. Upon review of the evidence, the Board finds that a rating higher than 10 percent is not warranted for right thigh impairment. The current assigned 10 percent rating is indicative of limitation of abduction such that the Veteran cannot cross legs. In order to warrant a higher rating, there must be evidence of limitation of abduction where motion is lost beyond 10 degrees. Here, the Veteran was able to cross his legs during the appeal period and there was no evidence that abduction of the right thigh was so limited that motion was lost beyond 10 degrees. Even considering the lay statements of record, the severity of the Veteran's right thigh impairment was adequately contemplated by the currently assigned 10 percent rating. The claim for a higher rating is denied. Right Ankle The Veteran contends that his right ankle disability is more severe than the current rating contemplates. The Veteran's right ankle disability is currently rated 10 percent disabling, indicative of moderate limitation of motion of the ankle. To warrant a higher 20 rating, the ankle disability must manifest marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. According to 38 C.F.R. § 4.71, Plate II, normal ankle dorsiflexion is zero to 20 degrees; normal ankle plantar flexion is zero to 45 degrees. Moderate has been defined as tending toward the mean or average amount of dimension. https://www.merriam-webster.com/dictionary/moderate. Marked has been defined as having a distinctive or emphasized character, and is synonymous with terms such as conspicuous, dramatic, eye-catching, noticeable and pronounced. https://www.merriam-webster.com/dictionary/marked. The Board observes that recent revisions to the criteria of DC 5271 effective February 7, 2021 clarify that prior regulatory references to "marked" means less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and that "moderate" means less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. In proposing this rule, VA indicated that this standard was currently used by VA and was being codified "as a clarification of current policy and would ensure consistent application of these criteria among rating personnel." See 82 Fed. Reg. 35719, 35723 (Aug. 1, 2017). The Board finds that these are non-substantive changes which do not require AOJ review in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Turning to the facts of the case, the Veteran filed a claim for service connection for a right ankle disability in July 2017. At the August 2017 VA examination, the Veteran described experiencing right ankle pain, which increased during flare ups. Functionally, the Veteran's pain resulted in difficulty walking long distances and ambulating stairs. Range of motion testing revealed dorsiflexion to 10 degrees and plantar flexion to 30 degrees. The examiner noted pain on examination which caused functional loss. While there was evidence of pain with weightbearing and non-weightbearing, there was no evidence of crepitus, localized tenderness, or pain on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran demonstrated normal strength in the ankle and there was no evidence of muscle atrophy. There was no evidence of ankle instability or dislocation. At the October 2017 VA examination, the Veteran described experiencing ankle discomfort and stiffness, which increased during flare ups. His pain limited his ability to perform repetitive climbing or squatting, as well as prolonged walking. Range of motion testing revealed dorsiflexion to 15 degrees and plantar flexion to 30 degrees. The decrease in range of motion contributed to decreased flexibility. The examiner noted pain on plantar flexion which caused functional loss. While there was evidence of pain with weightbearing, there was no evidence of crepitus, localized tenderness, or pain on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. There was no reduction in muscle strength, nor was there evidence of muscle atrophy or joint instability or dislocation. At the December 2018 VA examination, the Veteran endorsed constant pain in the right ankle. He stated that he was unable to walk or stand for prolonged periods and he used a cane and occasionally a wheelchair due to instability. While the Veteran denied flare ups, functionally, he had difficulty ambulating stairs. He stated that his walking was "extremely limited." Range of motion testing revealed dorsiflexion to 5 degrees and plantar flexion to 15 degrees. The examiner noted pain throughout the examination which caused functional loss. There was localized tenderness of the ankle joint along with pain with weightbearing. However, there was no objective evidence of crepitus or muscle atrophy. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. However, the examiner found that pain would significantly limit his functional ability with repeated use over time. While the examiner noted a decrease in functional capacity with use, the examiner was unable to describe in terms of range of motion, as the loss of motion would be variable, depending on how strenuously the joint was used. The Veteran demonstrated normal muscle strength throughout the ankle, but the examiner did suspect ankle instability. Upon consideration of the evidence, the Board finds that a rating higher than 10 percent is not warranted prior to December 19, 2018 as the evidence fails to demonstrate "marked" limitation of motion at any point during the relevant time period. Instead, the evidence shows that most often, the Veteran's condition resulted in dorsiflexion limited to at most 10 degrees which is 50 percent of normal, and plantar flexion limited to at most 30 degrees which is 66 percent of normal. In addition, while the Veteran experiences pain, he is not so limited by pain that his movement is further decreased, and he is able to ambulate, albeit painfully. Thus, even with consideration of functional impairment on use or during flares, these manifestations are moderate in severity with range of motion findings tending toward the mean or average amount of dimension or better. Accordingly, the Board finds no basis upon which to assign a rating greater than 10 percent under the criteria set forth in DC 5271 prior to December 19, 2018. 38 C.F.R. § 4.71a, DC 5271. From the period beginning December 19, 2018, the Board finds that a 20 percent rating is warranted for the right ankle under DC 5271, as the objective medical evidence demonstrates an increase in the severity of the ankle disability. Notably, the December 2018 VA examination notes that the functional ability of the right ankle was additionally limited upon range of motion testing and with repetitive use. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the severity of functional impairment of the Veteran's ankle more nearly approximates that which is contemplated by a higher 20 percent rating as of December 19, 2018. The claim is granted to that extent only. The Board notes that the Veteran is credible to the extent that he believes he is entitled to a higher rating for his disability. This lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the impairment based on objective data coupled with the lay complaints. Furthermore, the Board finds that the severity described in the lay statements is adequately contemplated by the currently assigned staged ratings. The Board has also considered whether the Veteran may be entitled to a higher rating under any other applicable rating criteria. Ankylosis is an objective finding or symptom and not a diagnosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Notably, multiple definitions of "ankylosis" were discussed in Chavis including general medical dictionary definitions as follows: "[i]mmobility and consolidation of a joint due to disease, injury, or surgical procedure" (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (33rd ed. 2019)), "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint" (citing STEADMAN'S MEDICAL DICTIONARY 95 (28th ed. 2006)) and "[a] stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention" (citing CHURCHILL'S ILLUSTRATED MEDICAL DICTIONARY 91 (1989). It noted that VA had previously defined ankylosis as "bony fixation" in older criteria and, in proposing the current regulatory terms decided to define the terms of favorable and unfavorable in Note (5) of the General Rating Formula. However, there is no radiographic evidence of ankylosis of the ankle or subastragalar or tarsal joint to allow for application of DCs 5270 or 5273. Furthermore, the Veteran does not describe "functional" ankylosis. Further, the evidence of record does not demonstrate malunion of the calcaneus or talus, and there is no indication that the Veteran had undergone a talectomy (an astragalectomy). Accordingly, the Board finds that the evidence does not support a rating under DCs 5273 or 5274. In sum, the Board finds that a 10 percent rating is warranted for service-connected right ankle lateral collateral ligament sprain prior to December 19, 2018, and a 20 percent rating is warranted thereafter. The claim is granted to that extent only. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. TDIU Prior to December 1, 2020 A March 2021 rating decision granted TDIU effective December 1, 2020, but the Board observes that the claim for a TDIU is part-and-parcel of the Veteran's October 2015 increased rating claim for his service-connected bilateral knee disabilities. Thus, the Board must consider whether TDIU was warranted earlier than December 1, 2020. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018). The appeal period under review includes the one-year look back period (i.e. back to October 2014). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. If there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. For TDIU purposes, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.1. Factors to be considered, however, will include the Veteran's employment history, educational attainment, and vocational experience. 38 C.F.R. § 4.16. Here, the record reflects that the Veteran last worked full-time in 2006, as a laborer building tires. Since then, the Veteran contends, he has been unable to work due to his back, ankle, knee, and shoulder disabilities. Upon review of the evidence, the Board finds that TDIU is warranted from May 21, 2018, the date the Veteran met the schedular criteria for TDIU, even when considering the bilateral factor. The AOJ has already established that the Veteran's service-connected orthopedic disabilities prevented him from obtaining and maintaining substantially gainful employment. The Veteran first became eligible for a schedular TDIU on May 21, 2018. Accordingly. TDIU is granted effective May 21, 2018. REASONS FOR REMAND Service Connection for a Sinus Disability The Veteran is seeking service connection for a sinus disability, which he contends he developed while stationed in Fort Stewart in Georgia. The Board is remanding for the correction of a pre-decision error in the evidentiary development of this claim. Specifically, the Board finds that the AOJ made a pre-decisional duty to assist error of adjudicating the claiming without obtaining an adequate nexus opinion. The Veteran's service treatment records reflect that he often reported issues with headaches, nasal congestion, chest pain, and sore throat. He was prescribed various medications to alleviate his symptoms. See Service Treatment Records dated June 2, 1986 and January 4, 1993. Also of record is the April 2018 independent medical examination report, which suggests that the Veteran developed sinus problems during service and has continued to have sinus issues since his period of service. While the report seems to be primarily based on the Veteran's lay statements, the report is probative as it suggests a possible correlation between the Veteran's sinus diagnosis and his period of service. As a result, the Board finds that remand is required to afford the Veteran an examination to determine the nature and etiology of his sinus disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Increased rating for bilateral knee disability, including a Temporary Total Rating for Left Knee Disability The Veteran is seeking a temporary total rating due to convalesce for a February 2017 left knee surgery. The Board finds that remand is required to correct a pre-decision error in the evidentiary development of this claim. Notably, in March 2017, the Veteran filed his claim for a temporary total rating. In support of his claim, the Veteran submitted a March 2017 written letter from his physician, who stated that the Veteran "recently" underwent surgery to his left knee. The physician also indicated that the Veteran would need about 12 months of convalesce to recover from his surgery. The AOJ denied the claim, indicating that there was no surgical report of record to support the Veteran's claim. Notably, various VA treatment notes reference scanned VISTA documents; however, those records have not been associated with the claims file. VA has an affirmative duty to assist a claimant in obtaining relevant records. See 38 U.S.C. § 5103A(b)(1). In light of the duty to assist, VA should attempt to locate and associate with the record all private and VA treatment records relevant to the Veteran's February 2017 left knee surgery. Furthermore, the record reflects that the Veteran has manifested meniscal abnormalities of both knees, which implicates the criteria for rating meniscal disorders under Diagnostic Codes 5258 and 5259. As noted above, the surgical records for the left knee are not associated with the claims folder and neither are the surgical records for the right knee. Rather, the provider of treatment Orthopedic Associates has provided summaries of treatment rather than complete records which, in this particular case, are highly pertinent as to identifying the correct application of diagnostic codes and appropriate ratings. Thus, the Board finds a pre-duty to assist error in not obtaining complete records from Orthopedic Associates. TDIU prior to May 21, 2018 The Veteran seeks to establish entitlement to TDIU for the period prior to May 21, 2018. Prior to this date, the Veteran's combined evaluation did not meet the minimum percentage rating required for schedular TDIU. Nevertheless, in exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The Board has no authority to assign a TDIU rating under section 4.16(b) in the first instance and may only refer the claim to the Director Compensation for extra-schedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Here, the record demonstrates that the Veteran had diffulty at work due to his service-connected orthopedic disabilities; in addition, VA has determined that the Veteran's orthopedic disabilities affect his employability. See Rating Decision dated March 2021. Therefore, as there is sufficient evidence to substantiate a reasonable possibility that a Veteran was unemployable by reason of his service-connected disabilities prior to May 21, 2018, the claim must be referred to the Director of Compensation Service for exraschedular consideration. Ray v. Wilkie, 31 Vet. App. 58, 65-66 (2019). The matters are REMANDED for the following action: 1. Obtain all relevant private treatment records related to the Veteran's February 2017 left and right knee surgeries and subsequent convalescence periods, to include complete records from Orthopedic Associates. All records related to the Veteran's left knee disability which have been stored in VISTA Imaging since 2015 must be separately obtained for inclusion in the Veteran's claims file for review by adjudicators. 2. Schedule the Veteran for a VA examination for his sinus disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's sinus disability at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. Refer to the Director of Compensation the issue of extraschedular consideration of TDIU for the period prior to May 21, 2018 under 38 C.F.R. § 4.16(b). In rendering the above opinion, the Director of Compensation Service should consider and address the Veteran's educational background, employment history, and training. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.