Citation Nr: 21009807 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-16 450 DATE: February 23, 2021 ORDER A disability rating in excess of 10 percent for left leg fibula fracture is denied. A disability rating in excess of 10 percent for left knee degenerative joint disease and patellofemoral syndrome is denied. For the period from November 6, 2018, a 40 percent disability rating, but no higher, for degenerative arthritis of the thoracolumbar spine is granted. For the period prior to November 6, 2018, a disability rating in excess of 10 percent for degenerative arthritis of the thoracolumbar spine is denied. For the period from November 6, 2018, a 40 percent disability rating, but no higher, for radiculopathy of the left lower extremity is granted. For the period prior to November 6, 2018, a disability rating in excess of 10 percent for radiculopathy of the left lower extremity, is denied. For the period from November 6, 2018, a 40 percent disability rating for radiculopathy, right lower extremity is granted, but a disability rating in excess of 40 percent for radiculopathy of the right lower extremity is denied. For the period prior to November 6, 2018, a disability rating in excess of 10 percent for radiculopathy of the right lower extremity, is denied. A disability rating in excess of 10 percent for chronic musculoligamentous strain of the left hip (abduction/adduction) is denied. A disability rating in excess of 10 percent for chronic musculoligamentous strain of the right hip (abduction/adduction) is denied. A 10 percent rating for degenerative arthritis of the left hip is granted. A 10 percent rating for degenerative arthritis of the right hip is granted. A compensable rating for chronic musculoligamentous strain of the left hip (flexion) is denied. A compensable rating for chronic musculigamentous strain of the right hip (flexion) is denied. A compensable rating for chronic musculoligamentous strain of the left hip (extension) is denied. A compensable rating for chronic musculoligamentous strain of the right hip (extension) is denied. FINDINGS OF FACT 1. Throughout the rating period on appeal, the left leg fibula fracture has been manifested by slight ankle disability, with no showing of moderate knee or ankle disability and with no showing of medial tibial stress syndrome or shin splints. 2. Throughout the rating period on appeal, left knee degenerative joint disease and patellofemoral syndrome has been manifested by flexion limited to 60 degrees, but not limited to 30 degrees, with normal extension, and with no objective findings of instability. 3. For the period prior to November 6, 2018, degenerative arthritis of the thoracolumbar spine is not manifested by forward flexion of 60 degrees or less, nor ankylosis of the entire thoracolumbar spine; there is no showing of incapacitating episodes having a total duration of at least 2 weeks. 4. For the period from November 6, 2018, degenerative arthritis of the thoracolumbar spine is manifested by forward flexion of 25 degrees but without ankylosis of the entire thoracolumbar spine; there is no showing of incapacitating episodes having a total duration of at least 6 weeks. 5. For the period prior to November 6, 2018, radiculopathy of the left lower extremity is manifested by mild incomplete paralysis which is wholly sensory. 6. For the period from November 6, 2018, radiculopathy of the left lower extremity is manifested by mild incomplete paralysis which is wholly sensory. 7. For the period prior to November 6, 2018, radiculopathy of the right lower extremity is manifested by moderately severe paralysis without marked muscular atrophy. 8. For the period from November 6, 2018, radiculopathy of the right lower extremity is manifested by moderately severe paralysis without marked muscular atrophy. 9. Throughout the rating period on appeal, chronic musculoligamentous strain of the left hip (abduction/adduction) has not been manifested by limitation of abduction of motion lost beyond 10 degrees. 10. Throughout the rating period on appeal, chronic musculoligamentous strain of the right hip (abduction/adduction) has not been manifested by limitation of abduction of motion lost beyond 10 degrees. 11. Throughout the rating period on appeal, chronic musculoligamentous strain of the left hip (flexion) has not been manifested by flexion limited to 45 degrees. 12. Throughout the rating period on appeal, chronic musculigamentous strain of the right hip (extension) has not been manifested by flexion limited to 45 degrees. 13. Throughout the rating period on appeal, chronic musculoligamentous strain of the left hip (extension) has not been manifested by extension limited to 5 degrees. 14. Throughout the rating period on appeal, chronic musculoligamentous strain of the right hip (extension) has not been manifested by extension limited to 5 degrees. 15. Degenerative arthritis of the left hip with noncompensable flexion and extension is shown. 16. Degenerative arthritis of the right hip with noncompensable flexion and extension is shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left leg fibula fracture have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Code 5262. 2. The criteria for a disability rating in excess of 10 percent for left knee degenerative joint disease and patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Codes 5010, 5260. 3. For the period prior to November 6, 2018, the criteria for a disability rating in excess of 10 percent for degenerative arthritis of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5237, 5243. 4. For the period from November 6, 2018, the criteria for a disability rating in excess of 40 percent for degenerative arthritis of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, Diagnostic Code 8520. 5. For the period prior to November 6, 2018, the criteria for a disability rating in excess of 10 percent for radiculopathy of the left lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, Diagnostic Code 8520. 6. For the period from November 6, 2018, the criteria for a disability rating in excess of 40 percent for radiculopathy of the left lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, Diagnostic Code 8520. 7. For the period prior to November 6, 2018, the criteria for a disability rating in excess of 10 percent for radiculopathy of the right lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, Diagnostic Code 8520. 8. For the period from November 6, 2018, the criteria for a disability rating in excess of 40 percent for radiculopathy of the right lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, Diagnostic Code 8520. 9. The criteria for a disability rating in excess of 10 percent for chronic musculoligamentous strain of the left hip (abduction/adduction) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Code 5253. 10. The criteria for a disability rating in excess of 10 percent for chronic musculoligamentous strain of the right hip (abduction/adduction) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Code 5253. 11. The criteria for a compensable rating for chronic musculoligamentous strain of the left hip (flexion) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Code 5252. 12. The criteria for a compensable rating for chronic musculoligamentous strain of the right hip (flexion) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Code 5252. 13. The criteria for a compensable rating for chronic musculoligamentous strain of the left hip (extension) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Code 5251. 14. The criteria for a compensable rating for chronic musculigamentous strain of the right hip (extension) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Code 5251. 15. The criteria for a 10 percent disability rating for degenerative arthritis of the left hip have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Code 5003. 16. The criteria for a 10 percent disability rating for degenerative arthritis of the right hip have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Code 5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1992 to September 1994. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.§ 1155; 38 C.F.R.§ 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the DCs predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Also, functional loss due to pain must be supported by pathology and shown through objective observation. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (citing 38 C.F.R. § 4.40); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (relying on DeLuca for proposition that an adequate joint examination report must comply with § 4.40 and include an “opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time”). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court of Appeals for Veterans Claims has held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The spine has no opposite joint. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. 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 Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board has reviewed all the evidence in the Virtual folders, which includes: the Veteran’s contentions, treatment records, and VA examination reports. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Left fibula fracture and left knee, degenerative joint disease and patellofemoral syndrome The Veteran’s left leg fibula fracture is rated 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5262, and his left knee disability is rated 10 percent disabling pursuant to Diagnostic Codes 5010 and 5260. For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71a, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluation for cartilage, semilunar, dislocated knee with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent disability rating. 38 C.F.R. § 4.71, Diagnostic Code 5258. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5257 was revised, effective February 7, 2021. Part 4 - Schedule for Rating Disabilities, § 4.71a Schedule of ratings – musculoskeletal system, 85 Fed. Reg. 230, 76463 (November 30, 2020). Effective February 7, 2021, Diagnostic Code 5257, concerning recurrent subluxation or instability, provides a 30 percent rating for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 30 percent award is also warranted for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. A 20 percent rating applies where the evidence shows unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is for application for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Regarding patellar instability: A 30 percent rating applies for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating applies for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 10 percent rating applies for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). With regard to impairment of the tibia and fibula, the rating schedule provides for a 10 percent rating with malunion with slight knee or ankle disability; a 20 percent rating with malunion with moderate knee or ankle disability; a 30 percent rating with malunion with marked knee or ankle disability; and nonunion of, with loose motion, requiring brace. Diagnostic Code 5262, tibia and fibula impairment was revised effective February 7, 2021. For medial tibial stress syndrome (MTSS), or shin splints, a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities; a 10 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; a 20 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; a 30 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Malunion of the tibia and fibula is to be evaluated under Diagnostic Codes 5256, 5257, 5260, 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Nonunion of the tibia and fibula, with loose motion, requiring brace, warrants a 40 percent rating. Pursuant to Diagnostic Code 5010, arthritis, due to trauma, substantiated by X-ray findings is to be rated as arthritis, degenerative. Pursuant to Diagnostic Code 5003, arthritis, degenerative (hypertrophic or osteoarthritis), established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4,71a, Diagnostic Code 5003. Effective February 7, 2021, § 4.71a, Schedule of ratings – musculoskeletal system was revised. Diagnostic Code 5010 was revised to contemplate post-traumatic arthritis, which is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Part 4 - Schedule for Rating Disabilities, § 4.71a Schedule of ratings – musculoskeletal system, 85 Fed. Reg. 230, 76460 (November 30, 2020). Effective February 7, 2021, Diagnostic Code 5003 was revised as follows: Degenerative arthritis, other than post-traumatic: Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, 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 diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent disability rating is warranted. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent disability rating is warranted. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 CFR Part 4, Schedule for Rating Disability: Musculoskeletal System and Muscle Injuries; Correction, 85 Fed. Reg. 249, 85523 (December 29, 2020). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98 (Aug. 1998). Moreover, the General Counsel also held more recently that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (Sept. 2004). With regard to the limitation of motion criteria, a disability rating in excess of 10 percent is not warranted for limitation of flexion or extension. The Board acknowledges the Veteran’s lay reports of symptoms and recognizes his functional loss due to pain, fatigue, weakness, and lack of endurance. However, flexion limited to 30 degrees is not shown, and limitation of extension to any degree is not shown. An April 2014 C&P examination reflects flexion to 125 degrees with no objective evidence of painful motion and no change on repetitive motion testing. There was no limitation of extension and no objective evidence of painful motion. 04/02/2014 CAPRI at 12-13. Flexion was to 110 degrees on examination in January 2016. 01/13/2016 Third Party Correspondence. An October 2016 C&P examination reflects flexion to 90 degrees with no change on repetitive motion testing. A March 2020 C&P examination reflects flexion to 70 degrees with normal extension, with no change on repetitive motion testing. The examiner opined that flexion would be limited to 60 degrees in contemplation of pain, fatigue, weakness, and lack of endurance which cause functional loss, to include during flare-ups. Here, the most severe limitation of flexion shown on any of the medical reports of record was to 60 degrees in consideration of functional limitations and flare-ups. The Veteran did not demonstrate a limitation of flexion to 30 degrees or less at any time during the pendency of this appeal, nor compensable flexion. Thus, a higher evaluation based on limitation of flexion and extension under the above cited rating code is not warranted. Per a VA General Counsel opinion, separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04, 69 Fed. Reg. 59990 (2004). However, there is no evidence of limitation of extension; thus, separate ratings are not warranted for any period contemplated by this appeal. With regard to Diagnostic Code 5257, the evidence of record does not support a separate disability rating for recurrent subluxation or lateral instability, as such is not shown. Specifically, the April 2014 examiner performed joint stability tests that were normal. The October 2016 C&P examination reflects no subluxation and no findings of instability. Stability testing was normal. The March 2020 C&P examination reflects that stability testing was normal. The Board acknowledges that in January 2016, the Veteran sought orthopedic treatment. The examiner noted that the Veteran was recently found to have unstable knees and was placed in braces because of his instability. The examiner opined that this should place him at the 20-percent level. The examiner stated that examination showed that he is braced bilaterally and that the knees are unstable. 01/13/2016 Third Party Correspondence. Such report, however, does not contain specific stability testing nor findings. Moreover, VA treatment records reflect the Veteran’s report that he uses bilateral knee braces to ambulate but there are no objective findings of instability of the knees. There is no indication of ligament tear, sprain, or surgery. As there are no objective findings of instability across numerous examinations, there is no basis for assignment of a separate compensable rating under either the pre-amended or newly revised diagnostic criteria. Indeed, while the Veteran is competent to report instability, such statements do not support a finding that such instability is of sufficient severity to equate to a compensable rating. A separate 20 percent rating is also not warranted pursuant to Diagnostic Code 5258 contemplating dislocated, semilunar cartilage, as locking and effusion were not shown on C&P examination nor in treatment records. With regard to the other potentially applicable rating codes, DC 5256 provides a higher rating for ankylosis of the knee; however, ankylosis of the knee joint has not been shown. With regard to the left leg fibula fracture, a February 2004 x-ray examination shows a small avulsion fracture of the tip of the fibula which was referenced by the April 2014 examiner. 04/02/2014 CAPRI at 36. The 10 percent rating in effect pursuant to Diagnostic Code 5262 contemplates the symptomatology associated with his ankle due to his fracture of the fibula. On examination in April 2014, there was no limitation of motion of the left ankle. The examiner commented that his measurements of the left ankle range of motion were not suitable for compensation and his observed motion of the left ankle was felt to be normal. He could stand on his tip toes and pull his forefoot off the floor standing on his heels. His motion was full without complaints of pain. He had a violent outburst complaining of pain at times but with stair walking, squatting (partially) and standing on his tip toes and not his heels he had no significant complaints. The examiner stated this suggested significant overreporting of symptoms. Thus, his complaints of pain and loss of function were suspect. He had pain on light touch of the skin as much as he did with deep palpation of the soft tissue. There was no joint instability and no ankylosis. He uses a brace on a regular basis and occasionally uses a cane for his knees, ankle and back. Degenerative joint disease of the left ankle was also diagnosed but the examiner opined that his arthritis is not due to his non-displaced fracture of the left distal fibula in 1994. The examiner found that it was healed well with no residuals. The examiner found that his extra body weight is what is causing his left ankle degenerative joint disease and he should have no symptoms related to his healed fracture. All of his left ankle symptoms are caused by his degenerative joint disease of the left ankle. In January 2016, the Veteran sought orthopedic treatment for his left leg fibula fracture, hip conditions, and his left knee disability. The examiner acknowledged his fractured left fibula. The examiner reported that he was feeling more pain and complained that his leg was atrophic with instability. The examiner noted that his last examination showed no instability, no deformity, and no presence of nonunion. It showed a well-healed fibular fracture in anatomic position with evidence of chip fractures at the distal tip of the fibula. The January 2016 examiner noted agreement with the C&P examiner, acknowledging the Veteran’s reports of pain and instability in the ankle but finding no evidence of that in the medical records. 01/13/2016 Third Party Correspondence. The October 2016 and March 2020 examiners found that he does not have recurrent patellar dislocation, shin splits, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. Based on the lack of objective findings associated with his residuals of left fibula fracture, there is no basis for the assignment of a disability rating in excess of 10 percent pursuant to Diagnostic Code 5262. The objective evidence does not reflect moderate knee or ankle disability due to his left fibula fracture. Nor does the objective evidence reflect medial tibial stress syndrome or shin splits due to his left fibula fracture in contemplation of the new schedular criteria. The Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). In finding that a higher evaluation is not warranted for any period, the Board has considered the Veteran’s subjective complaints, as well as whether there is additional functional loss due to lack of endurance, weakness, fatigue, and pain per 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 206-07. These factors have been taken into consideration in awarding the 10 percent ratings pursuant to Diagnostic Codes 5010-5260 and 5262. The C&P examination reports reflect that the Veteran’s left knee and left fibula fracture are manifested by pain, weakness, and fatigue, which causes him to have difficulty climbing/descending stairs, limited walking, and an inability to squat. The Board notes that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. Mitchell, 25 Vet. App. at 38. Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id.; 38 C.F.R. § 4.40. The findings reflected in the C&P examination reports and treatment records do not support ratings in excess of the ratings already in effect. In consideration of the DeLuca factors, while it is clear that the Veteran experiences pain and limitations due to his left knee and left fibula fracture, the disability ratings in effect take into consideration the Veteran’s functional loss associated with his left lower extremity. The Board finds that 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for higher ratings. The Board has also considered whether additional ratings for neurological manifestations are warranted. However, because no such manifestations have been diagnosed, additional ratings for neurological manifestations are inapplicable in this case. 38 C.F.R. § 4.124a. Applying all of the appropriate diagnostic codes to the facts of this case, the objective assessment of the Veteran’s present impairment of the left knee disability and left fibula fracture do not suggest that he has sufficient symptoms at any time during the pendency of this appeal, so as to warrant the assignment of evaluations in excess of the 10 percent ratings in effect. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Thoracic spine The Veteran’s thoracic spine with degenerative arthritis is rated 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242 (degenerative arthritis of the spine) and 5243 (intervertebral disc syndrome) for the period prior to November 19, 2018, and a 40 percent disability rating is in effect from November 19, 2018. As will be discussed below, the Board finds that the 40 percent rating should be assigned, effective November 6, 2018, but otherwise higher ratings are not warranted. Intervertebral disc syndrome is to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and, a 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula For Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Effective February 7, 2021, the General Rating Formula for Diseases and Injuries of the Spine was revised as follows: 5242 Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010); 5243 Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. Part 4 - Schedule for Rating Disabilities, § 4.71a Schedule of ratings – musculoskeletal system, 85 Fed. Reg. 230, 76462 (November 30, 2020). The Board finds that for the period prior to November 6, 2018, the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s thoracic spine disability; and, a disability rating in excess of 40 percent is not warranted for the period from November 6, 2018. The Board acknowledges the Veteran’s lay reports of symptoms associated with his thoracic spine. However, even considering the lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 60 degrees or less. The Veteran’s forward flexion is only shown to be limited to 70 degrees during the period prior to November 6, 2018. Furthermore, there is no evidence of any muscle spasm or guarding that resulted in abnormal spinal contour or gait for the period prior to November 6, 2018. Specifically, an April 2014 C&P examination reflects normal flexion with no objective evidence of painful motion and no change on repetitive motion testing. An October 2016 C&P examination reflects flexion to 70 degrees with pain with no change on repetitive motion testing. He denied flare-ups, and pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no guarding or muscle spasm of the spine. He experiences interference with sitting and standing. The objective findings combined with the subjective complaints of the Veteran do not support a 20 percent for his thoracic spine disability, as even with consideration of his functional limitations forward flexion of 60 degrees or less is not shown, nor muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The March 2020 C&P examination reflects flexion to 25 degrees, with pain. There was no change on repetitive motion testing. On November 19, 2018, the Veteran sought private medical treatment for acute low back pain wherein he complained of worsening symptoms with “shooting pain” in the lower back, some localized swelling and redness also seen. He complained of severe pain in his back shooting to his lower extremities. He had undergone status post percutaneous spinal cord stimulator trial placement on November 6, 2018, had removal of the temporary spinal cord stimulator on November 12, 2018, and was suffering from severe postprocedural predominantly axial back pain. He was neurologically intact. He sought VA emergency room treatment on November 17 prior to seeking private treatment. 03/19/2019 Medical Treatment Record-Non-Government Facility; see also 02/28/2019 CAPRI at 74. The 40 percent rating was assigned effective November 19, 2018, the date of his private treatment; however, as he initially sought treatment on November 6, 2018 and he suffered post-procedure symptomatology, the Board will assign an earlier effective date to the 40 percent rating in effect. A rating in excess of 40 percent is not warranted as unfavorable ankylosis of the entire thoracolumbar spine is not shown. In consideration of the DeLuca factors, there have been objective findings of functional loss such as pain, fatigue, weakness, and lack of endurance. However, the objective findings contained within the record, based on examination reports and treatment records, do not more nearly approximate the criteria for higher ratings for either period even with consideration of pain and repetitive motion. For the period prior to November 6, 2018, the 10 percent rating in effect for limitation of motion symptomatology compensates him for limited and painful motion and assigning the next higher rating for painful motion would not accurately assess the resulting functional loss, even when considering the pain. For the period from November 6, 2018, the 40 percent rating in effect for limitation of motion symptomatology compensates him for limited and painful motion, and such rating is the highest assignable rating for limitation of motion without ankylosis. The 10 and 40 percent ratings take into consideration the Veteran’s functional loss associated with his thoracic spine. The Board finds that 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not provide a basis for an increased rating for either period contemplated by this appeal. See DeLuca, 8 Vet. App. at 204 -07. In other words, the functional loss does not most nearly approximate the criteria for the next-higher respective 20 and 50 percent evaluations. Consideration has also been given to assigning a higher rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that he was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. With regard to consideration of flare-ups per Sharp v. Shulkin, 29 Vet. App. 26 (2017), the April 2014 and October 2016 examination reports reflect that the Veteran denied flare-ups. The March 2020 examiner found that pain, weakness, fatigue and lack of endurance would limit functional ability of the thoracolumbar spine during flare-ups or repeated use over time but there was no change in his reported flexion of the spine. There is no basis for the assignment of ratings in excess of 10 percent and 40 percent in contemplation of symptomatology during flare-ups. Regarding neurological impairment, radiculopathy of the lower extremities is addressed below. With regard to any bowel and bladder impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Thus, there is no basis for assignment of separate ratings for bowel or bladder impairment. Based on the foregoing, as detailed an effective date of November 6, 2018 is warranted for the 40 percent rating, but otherwise ratings in excess of the 10 percent and 40 percent ratings in effect for the thoracolumbar spine are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Radiculopathy, bilateral lower extremities Separate 10 percent ratings are in effect for radiculopathy of the left and right lower extremities for the period prior to November 19, 2018, and separate 40 percent ratings are in effect from November 19, 2018. Based on the findings above pertaining to the thoracic spine, the Board finds that the 40 percent ratings are warranted effective November 6, 2018. Radiculopathy of the right and left lower extremities is separately rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, Sciatic nerve. A 10 percent rating is for application for incomplete paralysis of the sciatic nerve when “mild.” “Moderate” incomplete paralysis of the sciatic nerve warrants a 20 percent rating; “moderately severe” incomplete paralysis warrants a 40 percent rating; and, “severe, with marked muscular atrophy” incomplete paralysis warrants a 60 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Moderate incomplete paralysis will likely be described by the Veteran and medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The Court held in Miller v. Shulkin that, “[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.” 28 Vet. App. 376, 380 (2017). The Board finds that the competent medical evidence weighs against a finding that radiculopathy of the right and left lower extremities affecting the sciatic nerve is moderate in severity for the period prior to November 6, 2018, and severe in severity for the period from November 6, 2018. The findings upon physical examination reflect that the Veteran’s radiculopathy of both the right and left lower extremity is no more than mild for the period prior to November 6, 2018, and no more than moderately severe without marked muscular atrophy for the period from November 6, 2018. The April 2014 C&P examination report reflects no radicular symptoms. A December 2015 private record reflects the Veteran’s complaints of numbness in the front of both legs down to his knees, and a diagnosis of radiculopathy of the lumbar region. 06/20/2016 Medical Treatment Record-Non-Government Facility. The October 2016 C&P thoracic spine examination report reflects positive straight leg test results. The examiner checked the boxes indicating moderate intermittent pain, numbness, and paresthesias/dysesthesias, without constant pain. Reflex and muscle strength testing were normal. The examiner characterized his radiculopathy as mild in severity. The October 2016 C&P peripheral nerves examination report reflects the Veteran’s complaints of bilateral pain radiating down the posterior thighs to the feet for about 5 years, accompanied by numbness and tingling. The examiner checked the boxes indicating moderate intermittent pain, numbness, and paresthesias/dysesthesias, without constant pain. Reflex and muscle strength testing were normal. The examiner characterized his radiculopathy as mild in severity. The examiner found no functional impairment associated with his radiculopathy. At the March 2020 C&P peripheral nerves examination, the examiner checked the boxes for severe constant pain, paresthesias/dysesthesias, and moderate numbness. Muscle strength testing and reflex testing was normal. There was no muscle atrophy and no trophic changes. The examiner characterized his sciatica as moderate in nature. Based on the above, the Board finds that the Veteran’s radiculopathy affecting both the right and left legs reflects symptomatology approximated by the 10 percent ratings in effect for the period prior to November 6, 2018. As detailed above, while the Veteran experiences moderate intermittent pain, numbness, and paresthesias/dysesthesias, the examiner characterized his radiculopathy as mild in nature. Moreover, as detailed above, reflex and muscle strength testing were normal. The objective findings do not reflect combinations of significant sensory changes and reflex or motor changes to warrant a finding of moderate disability. Based on the subjective complaints of record and objective findings documented in examination reports and treatment records, the competent medical evidence weighs against a finding that radiculopathy of the right and left lower extremities is moderate in severity. Rather, the findings upon physical examination reflect that the Veteran’s radiculopathy of the lower extremities is no more than mild. The objective medical evidence reflects that the Veteran’s symptomatology is wholly sensory characterized as mild in nature. As such, the disability picture more nearly approximates the current 10 percent ratings in effect. For the period from November 6, 2018, severe radiculopathy is not shown, as there have been no objective findings of marked muscular atrophy. Based on the subjective complaints of record and objective findings documented in examination reports and treatment records, the competent medical evidence weighs against a finding that radiculopathy of the right and left lower extremities is severe in severity. Rather, the findings upon physical examination reflect that the Veteran’s radiculopathy of the lower extremities is no more than moderately severe. In summary, for the reasons and bases expressed above, the Board has concluded that disability ratings in excess of 10 percent are not warranted for the period prior to November 6, 2018, and disability ratings in excess of 40 percent are not warranted for the period from November 6, 2018. Hips The Veteran’s left and right hip strains contemplating abduction/adduction are separately rated 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5253, impairment of thigh. The Veteran’s left and right hip disabilities contemplating extension are separately rated 0 percent disabling pursuant to Diagnostic Code 5251, limitation of extension of thigh; and his left and right hip disabilities contemplating flexion are separately rated 0 percent disabling pursuant to Diagnostic Code 5252, limitation of flexion of thigh. According to VA standards, full hip range of motion is defined as 0 to 125 degrees hip flexion and 0 to 45 degrees hip abduction. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5251, limitation of extension of the thigh to 5 degrees warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Under Diagnostic Code 5252, limitation of flexion of the thigh to 45 degrees warrants a 10 percent evaluation; limitation to 30 degrees warrants a 20 percent evaluation; limitation to 20 degrees warrants a 30 percent evaluation; and limitation to 10 degrees warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, limitation of rotation of the thigh, cannot toe-out more than 15 degrees or limitation of adduction, cannot cross legs warrants a 10 percent evaluation. Limitation of abduction of, motion lost beyond 10 degrees warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Under Diagnostic Code 5255, malunion of the femur with slight knee or hip disability warrants a 10 percent evaluation. Malunion of the femur with moderate knee or hip disability warrants a 20 percent evaluation. Malunion of the femur with marked knee or hip disability warrants a 30 percent evaluation. Fracture of surgical neck of the femur, with false joint or fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, weight bearing preserved with aid of brace warrants a 60 percent evaluation. Fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion, (spiral or oblique fracture) warrants an 80 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5255. Initially, the Board finds that the 10 percent ratings in effect per Diagnostic Code 5253 compensate the Veteran for limitation of abduction/adduction symptomatology affecting the right and left hips. Limitation of abduction of motion lost beyond 10 degrees is not shown. Specifically, the April 2014 C&P examination reflects that abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. There were no changes on repetitive motion testing. In January 2016, he had full range of motion with tenderness over both trochanters. The October 2016 C&P examination reflects that adduction was not limited such that the Veteran could not cross his legs. Abduction was to 20 degrees and adduction was to 15 degrees with regard to the right hip. Abduction was to 20 degrees and adduction was to 20 degrees with regard to the left hip. External and internal rotation was to 10 degrees in the right hip and to 5 degrees in the left hip. Repetitive use testing was not completed as he was in too much pain. The examiner indicated that the Veteran was unable to walk more than 50 yards and he suffered from disturbance of locomotion due to his symptomatology associated with his hips. A March 2020 C&P examination reflects that adduction was not limited such that the Veteran could not cross his legs. Abduction was to 20 degrees and adduction was to 15 degrees in the right hip, and abduction was normal, and adduction was to 15 degrees in the left hip. External rotation was to 30 degrees and internal rotation was to 20 degrees in both hips. There were no changes on repetitive motion testing. The examiner found that pain, fatigue, weakness and lack of endurance would limit functional ability with repeated use over a period of time with no change in range of motion for the right hip, but abduction to 20 degrees in the left hip. During flare-ups, abduction would be reduced to 15 degrees and adduction would be reduced to 10 degrees in both hips, and external rotation would be reduced to 25 degrees and internal rotation would be reduced to 20 degrees. The objective findings combined with the subjective complaints of the Veteran do not support a 20 percent per Diagnostic Code 5253, as even with consideration of his functional limitations limitation of abduction of motion lost beyond 10 degrees is not shown for the left or right hip. With regard to the noncompensable ratings in effect for limitation of flexion per Diagnostic Code 5252, the medical evidence of record does not reflect flexion limited to 45 degrees. In April 2014, flexion was normal, with no objective evidence of painful motion. There was no change on repetitive motion testing. In January 2016, there was full range of motion with tenderness over both trochanters. In October 2016, flexion was to 85 degrees in the right hip and to 75 degrees in the left hip. He was unable to perform repetitive motion testing. On examination in March 2020, flexion was to 60 degrees in both hips with no change on repetitive motion testing nor due to functional limitations over a period of time. While flexion was estimated to be reduced to 50 degrees during flare-ups, such finding would not warrant a 10 percent rating in consideration of the diagnostic criteria. While it is clear that the Veteran has limitation of flexion, the objective findings do not warrant a 10 percent rating, even with consideration of limitation of flexion following repetitive motion and during flare-ups. However, as there is a diagnosis of degenerative arthritis affecting the right and left hips, the Board will assign separate 10 percent ratings compensating him for noncompensable limitation of motion with arthritis of the major joint affected by the limitation of motion. With regard to the noncompensable ratings currently in effect for limitation of extension under Diagnostic Code 5251, the Board finds that separate 10 percent ratings are not warranted as extension limited to 5 degrees is not shown. In April 2014, extension was greater than 5, with no objective evidence of painful motion. There was no change on repetitive motion testing. In January 2016, he had full range of motion with tenderness over both trochanters. In October 2016, extension was to 10 degrees in the right hip and to 15 degrees in the left hip. He was unable to perform repetitive motion testing. On examination in March 2020, extension was to 15 degrees in both hips with no change on repetitive motion testing nor due to functional limitations over a period of time. While extension was estimated to be reduced to 10 degrees during flare-ups, such finding would not warrant a 10 percent rating in consideration of the diagnostic criteria. While it is clear that the Veteran has limitation of extension, the objective findings do not warrant a 10 percent rating, even in consideration of limitation of extension following repetitive motion and during flare-ups. The separate 10 percent ratings in effect for degenerative arthritis also contemplate his noncompensable limitation of extension. It is clear that the Veteran has right and left hip symptomatology in the form of pain, weakness, fatigue, lack of endurance, and has difficulty walking and standing for long periods. As detailed above, his flexion and extension are not compensable, but separate 10 percent ratings have been assigned for arthritis which compensates him for functional impairment associated with his left and right hip disabilities. Also, separate 10 percent ratings are in effect for limitation of adduction and rotation. The 10 percent ratings in effect for the left and right hip disabilities compensate him for functional impairment per 38 C.F.R. §§ 4.40 and 4.45 and DeLuca and Mitchell. Higher ratings are not warranted per Diagnostic Code 5255 as impairment of the femur with nonunion or malunion has not been shown. There is also no evidence of moderate disability as needed to attain the next-higher 20 percent evaluation. In so finding, it is noted that all facets of the disabilities already at a compensable level cannot be considered again in evaluating the severity of disabilities as such would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Finally, the Board has determined that based on the Veteran’s symptomatology, there are no other diagnostic codes which could provide higher ratings for the Veteran’s right and left hip disabilities. See Schafrath, 1 Vet. App. at 592-593. Diagnostic Code 5250 relates to ankylosis of the hip and Diagnostic Code 5254 requires a flail joint of the hip. There is no medical evidence of ankylosis or flail joint of either hip and therefore, any application of these codes would be inappropriate. In sum, separate 10 percent ratings are warranted for functional disability associated with the right and left hip arthritis shown by x-ray evidence, but disability ratings in excess of 10 percent per Diagnostic Code 5253 are not warranted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.