Citation Nr: 21012711 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 12-35 776 DATE: March 5, 2021 ORDER Entitlement to a disability rating in excess of 10 percent under Diagnostic Code 5010-5252 for limitation of flexion of the thigh, right hip, associated with status-post fracture right femur stabilized with intramedullary rod and pins, right hip, post-fracture myositis ossificans with degenerative arthritis, prior to December 15, 2016, is denied. Entitlement to a 20 percent disability rating, but not higher, under Diagnostic Code 5010-5252 for limitation of flexion of the thigh, right hip, associated with status-post fracture right femur stabilized with intramedullary rod and pins, right hip, post-fracture myositis ossificans with degenerative arthritis, from December 15, 2016 to February 2, 2020, is granted. Entitlement to a 30 percent disability rating, but not higher, under Diagnostic Code 5010-5252 for limitation of flexion of the thigh, right hip, associated with status-post fracture right femur stabilized with intramedullary rod and pins, right hip, post-fracture myositis ossificans with degenerative arthritis, from February 3, 2020, forward, is granted. FINDINGS OF FACT 1. Prior to December 15, 2016, the Veteran’s right hip was manifested, at worst, by limitation of flexion to 70 degrees during flare-ups. 2. From December 15, 2016 to February 2, 2020, the Veteran’s right hip was manifested, at worst, by limitation of flexion to 30 degrees during flare-ups. 3. From February 3, 2020, forward, the Veteran’s right hip has been manifested, at worst, by limitation of flexion to 20 degrees during flare-ups. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent under Diagnostic Code 5010-5252 for limitation of flexion of the thigh, right hip, associated with status-post fracture right femur stabilized with intramedullary rod and pins, right hip, post-fracture myositis ossificans with degenerative arthritis, prior to December 15, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5252. 2. The criteria for a 20 percent disability rating, but not higher, for limitation of flexion of the thigh, right hip, associated with status-post fracture right femur stabilized with intramedullary rod and pins, right hip, post-fracture myositis ossificans with degenerative arthritis, from December 15, 2016, to February 2, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5252. 3. The criteria for a 30 percent disability rating, but not higher, for limitation of flexion of the thigh, right hip, associated with status-post fracture right femur stabilized with intramedullary rod and pins, right hip, post-fracture myositis ossificans with degenerative arthritis, from February 3, 2020, forward, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision. By way of history, in June 2011 the RO continued a 20 percent rating for status-post fracture right femur stabilized with intramedullary rod and pins, limitation of motion right hip, post-fracture myositis ossificans with degenerative arthritis and residual scar. In August 2017, the RO awarded a separate 20 percent rating for status-post fracture right femur stabilized with intramedullary rod and pins, right hip, post-fracture myositis ossificans with degenerative arthritis under Diagnostic Code 5010-5253; a 10 percent rating for limitation of extension of the thigh, right hip under Diagnostic Code 5010-5251; a 10 percent rating for limitation of flexion of the thigh, right hip, under Diagnostic Code 5010-5252; a 10 percent rating for right knee instability under Diagnostic Code 5257; a 10 percent rating for right knee strain under Diagnostic Code 5261; all effective from February 2, 2011. The RO also awarded a separate 10 percent rating for a scar of the right hip under Diagnostic Code 7804, effective from December 15, 2016. In making this determination, the RO noted that all of these conditions were formerly evaluated under Diagnostic Code 5255 but were now evaluated under the diagnostic codes listed above. In August 2015, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Veteran’s claim for an increased rating was remanded by the Board in February 2016, January 2019, and May 2020 for further development. The Board finds that there has been substantial compliance with the remand directives. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities was remanded by the Board in May 2020. A November 2020 rating decision granted entitlement to a TDIU rating, effective July 2, 2018, the day following the Veteran’s last day of full-time employment. As this is a full grant of the benefit sought, this issue is no longer before the Board. 1. Entitlement to a disability rating in excess of 10 percent under Diagnostic Code 5010-5252 for limitation of flexion of the thigh, right hip, prior to December 15, 2016, is denied. 2. Entitlement to a 20 percent disability rating, but not higher, under Diagnostic Code 5010-5252 for limitation of flexion of the thigh, right hip, from December 15, 2016 to February 2, 2020, is granted. 3. Entitlement to a 30 percent disability rating, but not higher, under Diagnostic Code 5010-5252 for limitation of flexion of the thigh, right hip, from February 3, 2020, forward, is granted. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. 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. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102.    Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14.  Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”).    The provisions of sections 4.40 and 4.45 thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca, 8 Vet. App. at 206-07 (holding that the provisions of 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnson v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under § 4.40).    Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Additionally, the United States Court of Appeals for Veterans Claims (the Court) recently held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is being evaluated is predicated on range of motion measurements. Id. at 354.    In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” 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.    A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders, to include the criteria for rating arthritis due to trauma under Diagnostic Code (DC) 5010 and the criteria for rating impairment of the femur under Diagnostic Code (DC) 5255. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Disabilities of the hips are rated under Diagnostic Codes 5250 through 5255 of 38 C.F.R. § 4.71a. The Veteran’s right hip disability has been rated under Diagnostic Code 5010-5252. 38 C.F.R. § 4.27 (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 evaluation assigned; the additional code is shown after the hyphen). When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.27. The old version of DC 5010 provided that arthritis due to trauma was to be rated as degenerative arthritis. In pertinent part, DC 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the joint involved. The revised DC 5010 provides that post-traumatic arthritis is to be rated as “limitation of motion, dislocation, or other specified instability under the affected joint.” Here, the Veteran’s right hip disability due to arthritis is rated based on limitation of flexion under Diagnostic Code 5252. Under Diagnostic Code 5252, limitation of flexion of the thigh to 45 degrees warrants a 10 percent disability rating; flexion limited to 30 degrees warrants a 20 percent disability rating; flexion limited to 20 degrees warrants a 30 percent disability rating; and flexion limited to 10 degrees warrants a 40 percent disability rating. 38 C.F.R. § 4.71a. Normal hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The old version of Diagnostic Code 5255 (femur, impairment of) provided a 10 percent rating for malunion of the femur with slight knee or hip disability; a 20 percent rating for moderate knee or hip disability; and a 30 percent rating for marked knee or hip disability. A 60 percent rating required either a fracture of the surgical neck of the femur with false joint or a fracture of the shaft or anatomical neck of the femur with nonunion, but without loose motion, and with weightbearing preserved with the aid of a brace. An 80 percent rating required a fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture). See 38 C.F.R. § 4.71a, Diagnostic Code 5255. Under the revised DC 5255, the criteria for 60 and 80 percent ratings are unchanged. However, malunion of the femur is to be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5250-5254 for the hip, whichever results in the highest evaluation. To evaluate the Veteran’s right hip disability, he was afforded a June 2011 examination. The examination report states that the Veteran experiences pain in his joints due to weather changes. He has constant joint pain that is sharp, is rated as a 6 out of 10, is exacerbated by stress and constant walking, and is alleviated by medication. He has limited motion in his right hip area. He can stand for 15 to 20 minutes and walk for one half mile. The June 2011 examination report demonstrates that the Veteran had range of motion to 125 degrees on flexion with no loss of range of motion on repetitive use. The Veteran’s joint function is not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The right hip X-ray shows degenerative arthritic changes. The Veteran was also provided a Hip and Thigh Conditions Disability Benefits Questionnaire on December 15, 2016. The examination report states that the Veteran has flare-ups of the right hip of swelling and pain. During a flare-up, he is unable to walk without a supportive device. In terms of functional impairment, the Veteran has difficulty with prolonged ambulation and standing. The December 2016 examination report states that the Veteran has flexion to 40 degrees. He has pain on flexion that causes functional loss. His range of motion contributes to a functional loss. The Veteran has pain with weight-bearing and there is objective evidence of crepitus. The Veteran was unable to perform repetitive-use testing due to an acute flare-up and resultant severe pain. The examination report states that the Veteran has pain, fatigue, weakness, lack of endurance, and incoordination on repeated use over time and on flare-ups. The Veteran has less movement than normal, weakened movement, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. The December 2016 examination report demonstrates active movement against some resistance for right hip muscle strength testing with a reduction in muscle strength. He does not have muscle atrophy or ankylosis. He has leg length discrepancy. He uses a brace and cane constantly. The Veteran was also provided a Hip and Thigh Conditions Disability Benefits Questionnaire in February 2020. The examination report states that the Veteran currently has right hip pain that he treats with medication. He did not report flare-ups of his right hip. In terms of functional impairment, the Veteran cannot lift heavy objects. On range of motion testing, the Veteran had flexion to 30 degrees per the February 2020 examination report. He has pain on flexion that causes functional loss. His range of motion contributes to a functional loss. There is objective evidence of mild pain on the lateral hip. The Veteran has evidence of pain with weight-bearing. There is no evidence of crepitus. The Veteran was able to perform repetitive-use with at least three repetitions and did not have additional loss of function or range of motion. The examination report states that pain, weakness, fatigability, and incoordination do not limit functional ability with repeated use over time or with flare-ups. The February 2020 examination report states that muscle strength testing was normal and there was no reduction in muscle strength. He does not have muscle atrophy or ankylosis. He has leg length discrepancy. He uses a cane constantly. In terms of functional impairment, the Veteran has difficulty walking. There is objective evidence of pain when the Veteran’s hip is used in non-weight bearing and his passive range of motion was the same as his active range of motion with pain on flexion. The Veteran underwent a July 2020 Hip and Thigh Conditions Disability Benefits Questionnaire. The examination report states that the Veteran has pain four days per week. His onset of pain occurs more easily when attempting to lift objects and walk extended distances. The Veteran reports flare-ups that occur in the winter and fall and that during a flare-up he cannot walk without a supportive device. In terms of functional impairment, he cannot stand or walk for longer than 20 minutes without experiencing pain. He cannot ascend stairs or lift objects that weigh more than 20 to 25 pounds. On range of motion testing, the Veteran had flexion to 100 degrees per the July 2020 examination report. He has pain on flexion that causes functional loss. His range of motion contributes to a functional loss as his decreased range of motion limits his ability to ascend stairs and walk. There is objective evidence of mild pain on the lateral right hip. The Veteran has evidence of pain with weight-bearing and there is evidence of crepitus. The Veteran was not able to perform repetitive-use with at least three repetitions because of complaints of severe pain. The examination report states that pain, weakness, fatigability, and incoordination significantly limit functional ability with repeated use over time and with flare-ups. On repeated use over time and with flare-ups, the Veteran’s flexion was estimated at 100 degrees. The July 2020 examination report states that muscle strength testing was active movement against some resistance and there was reduction in muscle strength. He does not have muscle atrophy or ankylosis. He has leg length discrepancy. He uses a brace regularly and a cane constantly. In terms of functional impairment, the Veteran has difficulty walking and standing, and he is unable to lift objects or ascend stairs. There is objective evidence of pain when the Veteran’s hip is used in non-weight bearing and his passive range of motion was the same as his active range of motion with pain on flexion. The Veteran was also afforded a Hip and Thigh Conditions Disability Benefits Questionnaire in October 2020. The Veteran reported right hip pain that occurs with cold weather and following excessive standing, walking, or weight-bearing. The Veteran has significant difficulty walking without a cane, and he must use a cane to walk, stand, and perform any other activities. The Veteran also reported severe flare-ups of his right hip that occur during the winter or once per week in other seasons. His flare-ups are precipitated by cold weather and excessive activities and are alleviated by pain medication and rest. On range of motion testing, the Veteran had flexion to 70 degrees per the October 2020 examination report. He has pain on flexion that causes functional loss. His range of motion contributes to a functional loss. There is objective evidence of moderate pain on the lateral right hip. The Veteran has evidence of pain with weight-bearing and there is no evidence of crepitus. The Veteran was able to perform repetitive-use with at least three repetitions with no additional loss of function or range of motion after three repetitions. The examination report states that pain, weakness, fatigability, and incoordination do not significantly limit functional ability with repeated use over time. According to the October 2020 examination report, the Veteran has pain that significantly limits functional ability with flare-ups and when described in terms of range of motion, he has flexion to 60 degrees. The examiner stated that based on the Veteran’s VA treatment records, private treatment records, examinations, and the Veteran’s history, the functional impact, flare-ups, and estimated additional loss of degrees in range of motion during flare-ups described in the October 2020 examination report are for the time period from 2011 to current. Thus, the examiner provided a retrospective medical opinion that the Veteran’s flare-ups caused an additional 10 degrees of range of motion loss for the entire appellate period. The October 2020 examination report states that the Veteran has weakened movement on his right side. The Veteran’s muscle strength testing was active movement against some resistance and there was reduction in muscle strength. He does not have muscle atrophy or ankylosis. He has leg length discrepancy. He uses a brace occasionally and a cane constantly. In terms of functional impairment, the Veteran is unable to walk or stand without a cane and cannot walk or stand while using a cane for longer than 20 minutes. He cannot run, and is unable to lift objects due to pain. He is unable to squat, kneel, crawl, or crouch. There is objective evidence of pain when the Veteran’s hip is used in non-weight bearing and during passive range of motion. A March 2016 private treatment record provides that the Veteran reports right hip pain and he had flexion to 80 degrees when his range of motion was measured. The Veteran’s VA treatment records demonstrate that he complained of right hip pain throughout the appellate period. VA treatment records from April 2018 noted that the Veteran had normal range of motion of the hip. During the August 2015 hearing, the Veteran advised that he constantly uses a right leg brace and he also uses a cane. His experiences pain and swelling flares during cold weather. He cannot walk or stand properly, and he has fallen. His range of motion is limited. He has hip weakness and becomes fatigued easily. The Board notes the Veteran is competent to report experiencing right hip symptomatology, as the onset, frequency, and duration of such symptoms as pain, weakness, stiffness, swelling, and lack of endurance are certainly capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). Additionally, the Board finds that the Veteran is credible in reporting his right hip symptomatology. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). The Veteran’s right hip flexion was measured as 40 degrees on VA examination in December 2016. See December 2016 Hip and Thigh Conditions Disability Benefits Questionnaire. Further, considering the October 2020 examiner’s retrospective medical opinion that flare-ups cause an additional 10 degrees of limitation of range of motion (i.e., to 30 degrees), a 20 percent disability is warranted under Diagnostic Code 5010-5252 as of December 15, 2016, the date of the VA examination. 38 C.F.R. §§ 4.40, 4.45; 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. The Veteran’s range of motion for his right hip satisfy the 20 percent disability rating for flexion limited to 30 degrees, from December 15, 2016 to February 2, 2020. 38 C.F.R. § 4.71a, Diagnostic Code 5010-5252. At no point between December 15, 2016 and February 2, 2020 was the Veteran’s right hip flexion limited to 20 degrees so as to meet the criteria for a 30 percent disability rating under DC 5252, even with consideration of additional functional loss on repeated use or with flare-ups. For the time period prior to December 15, 2016, the Veteran’s right hip flexion was measured at 80 degrees in March 2016 and at 125 degrees on VA examination in June 2011. Even considering that flare-ups cause an additional 10 degrees of limitation of range of motion (i.e., to 70 degrees and to 115 degrees), these range of motion findings far exceed the criteria for a 20 percent rating under DC 5252, that is, flexion of the right hip limited to 30 degrees. As such, the preponderance of the evidence is against entitlement to a disability rating in excess of 10 percent prior to December 15, 2016. For the time period from February 3, 2020, forward, the Veteran’s right hip flexion was measured at 30 degrees at worst. See February 2020 Hip and Thigh Conditions Disability Benefits Questionnaire. Again, considering the October 2020 examiner’s retrospective medical opinion that flare-ups cause an additional 10 degrees of limitation of range of motion, a 30 percent disability is warranted under Diagnostic Code 5010-5252 for this time period. 38 C.F.R. §§ 4.40, 4.45; 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. The Veteran’s range of motion for his right hip satisfy the 30 percent disability rating for flexion limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5010-5252. At no point from February 3, 2020, forward has the Veteran’s right hip flexion been limited to 10 degrees so as to satisfy the criteria for a 40 percent disability rating under DC 5252, even with consideration of additional functional loss on repeated use or with flare-ups. To the contrary, the Veteran exhibited improved right hip flexion to 100 degrees (90 degrees during flare-ups) in July 2020 and to 70 degrees (60 degrees during flare-ups) in October 2020. The Veteran is already in receipt of separate ratings for his right hip under DC 5251 for limitation of extension and under DC 5253 for impairment of the thigh (limitation of abduction, adduction and rotation). These claims were decided by the Board in a January 2019 decision and are not currently on appeal. Further, as noted in the Board’s January 2019 decision, the Veteran possesses separate disability ratings for limitation of flexion of the thigh under DC 5252 and right knee impairment under DCs 5257 and 5261, which is more beneficial that the assignment of a single 30 percent rating under Diagnostic Code 5255 for malunion of the femur with marked knee or hip disability. Further, to assign a separate rating for malunion of the femur with knee or hip disability under the old version of Diagnostic Code 5255 would amount to pyramiding, as the Veteran is already separately compensated for these residuals under Diagnostic Codes 5251, 5252, 5253, 5257, and 5261. The evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Finally, as there is no evidence of fracture of the shaft or the anatomical neck of the femur with nonunion, or fracture of the surgical neck of the femur with false joint, a higher and/or separate 60 or 80 percent rating under Diagnostic Code 5255 is not warranted. In sum, for the appellate period prior to December 15, 2016, the Board concludes that the preponderance of the evidence is against entitlement to a disability rating in excess of 10 percent under Diagnostic Code 5010-5252 for limitation of flexion of the Veteran’s right thigh. The preponderance of the evidence is in favor of a 20 percent disability rating, but not higher, under Diagnostic Code 5010-5252 for limitation of flexion of the Veteran’s right thigh from December 15, 2016 to February 2, 2020. The evidence does not show that a 30 percent disability rating is warranted during this time period. Consequently, the benefit-of-the-doubt rule does not apply, and a 20 percent disability rating, but not higher, is warranted for the Veteran’s right hip disability under Diagnostic Code 5010-5252 from December 15, 2016 to February 2, 2020. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 55-57. The preponderance of the evidence is in favor a 30 percent disability rating, but not higher, from February 3, 2020, forward under Diagnostic Code 5010-5252 for limitation of flexion of the Veteran’s right thigh. The evidence does not show that a 40 percent disability rating is warranted during this time period. Therefore, the benefit-of-the-doubt rule does not apply, and a 30 percent disability rating, but not higher, is warranted for the Veteran’s right hip disability under Diagnostic Code 5010-5252 from February 3, 2020, forward. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 55-57. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.