Citation Nr: 21013564 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 09-01 422 DATE: March 9, 2021 ORDER A 40 percent rating, but no greater, for degenerative disc disease of the lumbar spine at L5, is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial disability rating higher than 10 percent for traumatic arthritis of the right knee, is denied. A separate 10 percent rating for instability of the right knee is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial disability rating in excess of 10 percent for right hip strain and old healed femur fracture, is denied. FINDINGS OF FACT 1. Forward flexion of the Veteran’s lumbar spine was shown to be limited to less than 30 degrees. Neither ankylosis nor prescribed bed rest have been shown during the course of the appeal. 2. The Veteran has had right knee flexion to at least 75 degrees and extension to 0 degrees, throughout the appeal period, with complaints of pain. 3. The Veteran has mild instability in his right knee, but has not been prescribed any assistive device for it. 4. The Veteran’s right hip/femur disability has been productive of pain; abduction limited to 20 degrees at worst, and flexion limited to 50 degrees at worst, throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent for degenerative disease of the lumbar spine, but no higher, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5242-5243. 2. The criteria for an initial disability rating higher than 10 percent for traumatic arthritis of the right knee are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5256, 5258-5263. 3. The criteria for an initial disability rating of 10 percent for right knee instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. The criteria for an initial disability rating higher than 10 percent for a right hip/femur disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5251, 5252, 5253. REASONS FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to May 2005. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that granted service connection and assigned initial ratings of 10 percent for “degenerative disc L5, lumbar spine” and “right hip strain, old healed femur fracture.” The Veteran also was service connected for traumatic arthritis of the right knee, which was initially assigned a noncompensable evaluation, but has since been increased to 10 percent effective May 5, 2005. The Veteran testified at Board hearings in April 2014 and November 2020. Transcripts of the proceedings are of record. During the November 2020 hearing, the Veteran was notified that two current Veteran Law Judges (VLJs) had now heard testimony on the matters and that the Board was to assign a third VLJ to decide the matter as a panel. 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3. He was informed that he had an opportunity to have a third hearing before the third assigned judge prior to having the matter adjudicated by the three-judge panel. Arneson v. Shinseki, 24 Vet. App. 379 (2011); 38 C.F.R. § 20.707. The Veteran declined an additional hearing on the record. See November 2020 Board Hearing transcript. In January 2016, the Board denied the Veteran’s claims for increased ratings. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In accordance with a February 2017 Joint Motion for Partial Vacatur and Remand (JMR), the Board remanded the claim in June 2017 for additional development to address the concerns raised by the Court. The deficiencies of the January 2016 Board decision identified by the JMR included a lack of discussion about the collective impact of the Veteran’s service-connected disabilities in its extraschedular analysis pursuant to Yancy v. McDonald, 27 Vet. App. 484, 495 (2016) and Johnson v. McDonald,762 F. 3d 1362, 1366 (Fed. Cir. 2014). Therefore, the matter was remanded in part for the RO “to give consideration of referral of the matter to the Director, Compensation Service for extra-schedular evaluation.” While the June 2020 Supplemental Statement of the Case (SSOC) readjudicated the three issues on appeal, the analysis fails to include any discussion concerning referral to VA’s Director of Compensation Services for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). However, the Board finds that there was, nevertheless, substantial compliance with the prior Remand directives. Specifically, the prior instruction concerned itself with seeking an analysis of the collective impact of the Veteran’s disabilities in determining whether to refer the matter for extraschedular consideration. However, in light of a recent amendment to 38 C.F.R. § 3.321 and clarifying guidance from the Court, the Board finds that further development on these grounds has been rendered moot. On December 8, 2017, VA issued a Final Rule that amended 38 C.F.R. § 3.321(b)(1) to abrogate the effect of the holding in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) that the “plain language of [the prior version of] § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities.” The revised version of 38 C.F.R. § 3.321(b)(1) deleted any reference to the plural “disabilities” so that extraschedular ratings could only be provided based on considering each disability individually. VA assigned January 8, 2018, as the effective date of the rule and noted that it applied to cases pending before VA on that date. Subsequently, on September 12, 2018, the Court issued a panel decision in Thurlow v. Wilkie, 30 Vet. App. 231 (2018), holding that the revision to 38 C.F.R. § 3.321(b) eliminating extraschedular consideration on the basis of collective impact of multiple service-connected disabilities applied to all cases pending before VA and the Court on the effective date of the final rule. The case at hand was pending before VA at the time the revised rule was promulgated; thus, the revised rule applies here and an analysis of the combined effects of disability for purposes of extraschedular consideration is unnecessary. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. An initial evaluation in excess of 10 percent disabling for chronic lumbar strain. The Veteran’s thoraco-lumbar strain with degenerative disc L5 is currently assigned an initial 10-percent rating under Diagnostic Code 5010-5237, effective May 5, 2005. The Board finds that while an initial evaluation greater than 10 percent is not warranted, a staged rating of 40 percent effective from September 5, 2017 is demonstrated by the evidence of record. Under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235-5243), the General Rating Formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a 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. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis or the entire thoracolumbar spine warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. Id. Diagnostic Codes 5003 and 5010 require that arthritis be evaluated on the basis of limitation of motion, if compensably disabling based on the effect of arthritis on the affected joints. 38 C.F.R. § 4.71a. There is also a formula for rating intervertebral disc syndrome based on incapacitating episodes, defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. In this case the evidence shows that the Veteran has not had intervertebral disc syndrome, and in any event, incapacitating episodes requiring prescribed bed rest are not shown. Facts On VA examination in October 2006 the Veteran complained of constant pain in his middle and lower back for three years, which he said worsened as the day progressed, brought about by sitting or standing for more than twenty minutes. He said that he had a difficult time working due to the pain, which he described as crushing, aching, and sharp in nature; and said that it had gotten so bad that he has had to leave work on occasion. He said his pain level was a 9 on a scale of 1 to 10 (with 10 being the worst pain). The examiner observed that the Veteran’s posture and gait were within normal limits and he did not require an assistive device for ambulation. Range of motion testing found flexion to 90 degrees; extension to 30 degrees, with pain at 20 degrees; right and left lateral flexion to 30 degrees, with pain at 25 degrees; and right and left rotation to 30 degrees, with pain occurring at 20 degrees. The joint function of the spine was additionally limited “by 0 degrees” after repetitive use, with pain having the major functional impact. The examiner added that there was symmetry of the spinal motion with normal curvatures of the spine, and no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Diagnosis was degenerative disc disease at L5 of the lumbar spine. The Veteran’s gait was normal, and no muscle spasms were observed. No ankylosis was seen. Examination by a private provider in November 2007 and August 2009 found restricted range of motion of the lumbar spine with respect to flexion and extension. Gait was normal, including heel, toe, and tandem gait, and there was 5/5 motor strength to all muscle groups in both lower extremities including EHL, tibialis anterior, peroneals, quadriceps, gastrocnemius, and hamstrings. Deep tendon reflexes were symmetric and intact to both lower extremities; being 2-2+ at the ankles and knees. Sensation was normal in both lower extremities with respect to L1, L2, L3, L4, L5 and S1 nerve roots, and the provider added that there was “no SLR in either lower extremity.” At a VA examination in October 2009, the Veteran denied having received any injections or surgery for his back, and he denied using braces or other aids for his lower back. He was hospitalized in June 2003 multiple trauma. He has had no reinjury to his back. Describes minor flare-ups with repetitive bending or lifting, but no incapacitating events. No history of inflammatory arthritis or neoplasms. On examination, the examiner found no muscle spasms, and no abnormal kyphosis, lordosis or scoliosis. The Veteran had a mildly antalgic gait. Range of motion testing on VA examination in October 2009 found forward flexion from 0 to 70 degrees, both active and passive against resistance; extension from 0 to 20 degrees both active and passive against resistance; and left and right lateral bending and left and right rotation from 0 to 25 degrees, both active and passive against resistance. There was pain at the end points of all motion, but no increased pain, fatigue, weakness or incoordination with repetitive motion. X-rays of the lumbar spine showed normal alignment. Intervertebral disc spaces were preserved, and vertebral body heights were maintained. The examiner concluded that there was no significant abnormality. Diagnosis was chronic lumbar strain. A VA Pain Clinic record dated in June 2010 reflects axial mechanical back pain, functional in nature, which increased on palpation during physical examination in the ligaments and the muscles of the spine (mainly involving the posterior elements of the spine and primarily originating from the muscles). Physical examination found toe standing (gastrocnemius S1,2) to be painful, but possible, and heel standing (tibialis anterior L4,5, Sl) also painful, but possible. Range of motion testing of the lumbar spine found flexion to 100 degrees, painful; extension to 15 degrees, painful; right lateral bending to 30 degrees, painful; left lateral bending to 30 degrees, painful; and normal, non-painful right and left lateral rotation. In a March 2014 statement, the Veteran indicated that he had been seeing a chiropractor for several years to treat disk problems in his back. He reported that his back was stiff for hours after waking up. At his March 2014 Board hearing, the Veteran testified to similar symptomatology reported at his VA examinations including constant muscle spasms, stiffness and radiating pain. He reported mitigation of symptoms with prescription pain medication. Examination by a private provider in September 2014 found mildly restricted range of motion of the lumbar spine with respect to flexion and extension. Gait was normal, including heel, toe, and tandem gait, and there was 5/5 motor strength to all muscle groups in both lower extremities including EHL, tibialis anterior, peroneals, quadriceps, gastrocnemius, and hamstrings. Deep tendon reflexes were symmetric and intact to both lower extremities; being 2-2+ at the ankles and knees. Sensation was normal in both lower extremities with respect to L1, L2, L3, L4, L5 and S1 nerve roots, and there was “no SLR in either lower extremity.” On VA examination in October 2014 the Veteran complained of constant back pain. Range of motion testing found 75 degrees of flexion, with pain starting at 70 degrees; 15 degrees of extension, with pain starting at 10 degrees; 20 degrees of right and left lateral flexion, each, with pain starting at 15 degrees; and 15 degrees of right and left lateral rotation, each, with pain starting at 10 degrees. Range of motion after 3 repetitions was 75 degrees flexion; 15 degrees extension; 20 degrees of right and left lateral flexion; and 15 degrees of right and left lateral rotation. The examiner remarked that there was functional loss of the thoracolumbar spine (less/weakened movement, and interference with sitting, standing, and weightbearing) due to pain, but that he was unable to quantify the functional loss in terms of degrees. There was tenderness to palpation of the thoracic spine about T5-T6. Straight leg raising was positive, and there was decreased sensation to light touch in the left leg (L4/L5/S1) but no radiculopathy. The examiner further indicated that there was no intervertebral disc syndrome of the thoracolumbar spine; and no incapacitating episodes over the past 12 months. He added that the Veteran’s back condition did not impact his ability to work. The examiner found that there was guarding or muscle spasms, but that the symptoms did not result in an abnormal gait or spinal contour. No assistive devices were noted to be used. In March 2015, the Veteran stated that his back pain was debilitating, such that he could barely move it in the morning. He reported that it caused trouble sleeping. The Veteran was next afforded a VA examination for his spine in March 2016. A thoraco-lumbar strain was assessed, and the Veteran reported flare-ups resulting in “numbness and tingling in my legs, pain and burning in my back.” Additional functional impairment reported by the Veteran included numbness and loss of usage of legs and “back locks up.” Range of motion testing found 70 degrees of flexion, 10 degrees of extension, 20 degrees of right and left lateral flexion, and 20 degrees of right and left lateral rotation. Pain was noted during all range of motion testing. No evidence of pain on weight bearing and range of motion after 3 repetitions did not result in different measurements. The examiner recorded no finding of tenderness, guarding or muscle spasms. Muscle strength and sensory testing was normal without any signs of radiculopathy. No IVDS or ankylosis was noted, and the Veteran reported regular usage of a cane. The Board denied the Veteran’s claim in January 2016, but this decision was vacated by the Court of Appeals for Veterans Claims (CAVC) in February 2017, and returned for additional development, including the provision of an additional VA examination. The Veteran was afforded an in-person VA examination in August 2017 which assessed a diagnosis of chronic lumbosacral strain and “normal lumbar-thoracic spine.” The examiner noted a main complaint of stiffness with periodic burning pain and no radicular symptoms, treated with prescription medication. X-rays were found to be “totally normal…does not have any spine degeneration.” Flare-ups were denied and there was no pain on weight bearing. Range of motion testing could not be conducted, but the examiner found that “passive movement is normal…flexed and rotated normally getting out of a chair and then would not do ROM during the exam.” No guarding or muscle spasms and muscle strength testing was normal. Reflex and sensory examinations were normal. A September 2017 private examination from Dr. Tabor recorded range of motion testing of flexion to 18 degrees, extension to 0 degrees, left rotation to 27 degrees, right rotation to 32 degrees, left lateral rotation to 2 degrees and right lateral rotation to 8 degrees with measurements “taken using a goniometer.” However, the report fails to specify what area of the spine was actually measured, nor any other details of the examination. An October 2017 Lumbar Spine DBQ completed by a private examiner reflects review of military and civilian medical records. Diagnoses of “degenerative disc disease” and “unspecified back ache” were assessed. Range of motion testing found flexion to 20 degrees, extension not tested as “unable to lean backwards or hyperextend,” right and left lateral flexion to 10 degrees and right and left lateral rotation to 30 degrees. Repetitive testing yielded the same results and guarding, and tenderness were noted. Additional functional loss was recorded as less movement than normal, fatigue, pain, disturbance of locomotion and interference with sitting and standing. Additional loss of range of motion during flare-ups was estimated at flexion of 10 degrees, extension at “-10 degrees,” right lateral flexion to 5 degrees and left lateral flexion to 2 degrees, and right lateral rotation to 5 degrees and left lateral rotation to 0 degrees. Reflex and the majority of sensory testing was normal, other than decreased Foot/Toes(L5) and hypersensitivity in left great toe. Straight leg raising test was positive on the right, “partial active ROM, causing pain.” Concerning radiculopathy, the examiner indicated pain was present but not due to radiculopathy, and there was mild numbness in the left lower extremity. The Veteran was recently afforded an additional Board hearing in November 2020 where he testified as to suffering from “significant pain and muscle tightening,” addressed with prescription pain medication. He reported limitation with bending and lifting and only being able to “lean forward maybe 15 to 20 degrees.” The Veteran testified as to his back symptoms largely remaining “static” since the 2017 private examination, other than an “increase in muscle tightening.” Based on the above lay and medical evidence of record, when viewed in a light most favorable to the Veteran, the Board finds that a 40 percent rating is warranted for the Veteran’s service-connected thoracolumbar disability. A rating in excess of 40 percent cannot be assigned absent the showing of either spinal ankylosis or prescribed bed rest, neither of which has been shown or alleged in this case. An initial disability rating higher than 10 percent for traumatic arthritis of the right knee. The Veteran’s traumatic arthritis of the right knee with limitation of motion is currently assigned a 10 percent rating under Diagnostic Code 5003-5260, effective May 5, 2005. The Board finds that an initial rating greater than 10 percent is not warranted. It is noted that on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. The U.S. Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran’s disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application. In this case, the revisions to the regulations have a limited impact in that they have only been in effect for a short period of time. However, with regard to evaluating knee disabilities, the changes are substantive in that Diagnostic Code 5257 covering instability has been significantly rewritten. The revisions replace the subjective terms of the old criteria with detailed descriptions of levels of impairment resulting from recurrent subluxation or instability or from patellar instability. The revised Diagnostic Code 5257 regarding recurrent subluxation or instability provides: 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 ................................................. 30 One of the following: (a) 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. (b) 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 .............................. 20 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................. 10 Patellar instability: 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 ........................................................... 30 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 .............................................. 20 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 ........................10 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). Again, these changes are effective February 7, 2021 and can only be applied prospectively. At the time of the Veteran’s claim, the regulations regarding disabilities of the knee provided that knee disabilities can be rated under Diagnostic Codes 5003, 5256-5263. 38 C.F.R. § 4.71a. Under Diagnostic Code 5010, traumatic arthritis is rated under the same criteria as degenerative arthritis, Diagnostic Code 5003. 38 C.F.R. § 4.71a. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is evaluated based on the limitation of motion under the appropriate Diagnostic Codes for the specific joint 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, to be combined, not added, under Diagnostic Code 5003. A 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Any limitation of motion must be confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. For these purposes, VA regulations consider the knees to be major joints. 38 C.F.R. § 4.45 (f). The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5257, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. The words “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just,” under 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. Under Diagnostic Code 5258, a 20 percent evaluation is assigned for disability characterized as cartilage, semilunar, dislocated with frequent episodes of “locking,” pain, and effusion into the joint. This is the only rating under this code. The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. Under the criteria for limitation of flexion for the leg, a noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. A 30 percent rating applies where flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under the criteria for limitation of extension, a noncompensable rating is assigned for a limitation of extension to 5 degrees. When extension is limited to 10 degrees, a 10 percent rating is assigned. A 20 percent rating is appropriate where extension is limited to 15 degrees. A 30 percent rating is assigned in the case of extension limited to 20 degrees. A 40 percent rating is appropriate where extension is limited to 30 degrees. A 50 percent rating is assigned for limitation of extension to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Diagnostic Code 5263, which evaluates genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated), provides for a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5263. Facts On VA examination in May 2006 the Veteran complained of right knee pain for 3 years, which he described as burning and aching in nature. On a scale of 1 to 10 (with 10 being the worst pain) he rated the pain as an 8 and said that it is relieved by rest and medication, including OxyContin and Motrin. He added that he was unable to do any running or jogging and could do only limited standing. The examiner noted that the Veteran’s posture and gait were within normal limits and he did not require an assistive device for ambulation. Physical examination found full range of motion of the right knee (flexion to 140 degrees; extension of 0 degrees), but there was some crepitus and tenderness. Ligaments and meniscus were fully intact without instability. On VA examination of the right knee in October 2009, the Veteran complained of limited motion and intermittent swelling in the knee and said that he could not squat. He added that his knee ached pretty much all the time, and described some popping, but no catching or locking. He also complained of a sense of his knee giving way on him, but said he did not use braces or other aids. The examiner noted that an MRI in June 2007 found no evidence of meniscal tear, and that the anterior posterior cruciate ligaments were intact. The medial and lateral collateral ligaments as well as patella and quadriceps tendons were also intact, but there was an area of subcortical bone marrow edema along the lateral tibial plateau near the tibial rim, and 1.5 inches quad atrophy on the right compared to the left. The knee was stable to varus-valgus stress testing both in extension and at 30 degrees of flexion. Lachman’s, anterior and posterior drawer, and McMurray’s tests were all negative; and there were no posterior masses or effusion. The articular cartilage of the medial and lateral compartments was preserved, and there was no Baker’s cyst or patellofemoral compartment focal chondral defect. The medial and lateral patellar retinacula were also intact. Range of motion testing revealed full extension and flexion to 100 degrees, both active-passive against resistance; with pain at the end point in the quadriceps mechanism (not in the joint). There was no increased pain with repetitive motion; and no pain, fatigue, weakness or incoordination with repetitive motion. The examiner noted that the Veteran did have a mildly antalgic gait but was otherwise neurovascularly sensory intact. He added that the limited flexion was due to scarring of the quadriceps. At his March 2014 Board hearing, the Veteran testified to similar symptomatology reported at his VA examinations including stiffness, decreased range of motion and swelling. He reported mitigation of symptoms with steroidal injections and use of a cane. Examination of the right knee by a private provider in September 2014 found a well healed incision and mild effusion. There was no calf tenderness. On VA examination in October 2014 the Veteran complained of constant knee pain. The examiner noted that the Veteran did not use any assistive devices. Range of motion testing found right knee flexion to 90 degrees, with pain beginning at 75 degrees; and right knee extension to 0 degrees. Range of motion after three repetitions was unchanged. The examiner added that there was functional loss (weakened movement due to pain, weakness, and fatigability) of the knee. Muscle strength was normal, and there was no instability or subluxation. The examiner concluded that the Veteran’s right knee condition did not impact his ability to work. A March 2016 Knee and Lower Leg Disability Benefits Questionnaire reflects reported symptoms of knee pain upon motion or during swelling with decreased range of motion and usage of a cane. Flare-ups of the right knee were reported, described as “painful swelling and limited use of knees.” Range of motion testing found right knee flexion to 80 degrees and right knee extension to 0 degrees with pain on flexion, but no pain on weight bearing or evidence of crepitus. Range of motion after three repetitions was unchanged. Muscle strength was normal, and there was no ankylosis. Joint stability testing was not performed due to right knee pain. On VA examination in August 2017 the Veteran complained of constant knee pain with swelling. Flare-ups were not reported, and range of motion testing was normal with flexion of 0 to 140 degrees and extension from 140 to 0 degrees. Range of motion after three repetitions was unchanged. Muscle strength was normal, and there was no instability or subluxation upon testing. Regular use of a cane and knee brace were noted. Examiner concluded that there was functional impact of the knee, “but not with vigorous activity.” A September 2017 private examination from Dr. Tabor recorded range of motion testing of flexion to 54 degrees and extension to 0 degrees, with measurements “taken using a goniometer.” An October 2017 Knee and Lower Leg DBQ completed by a private examiner reflects review of military and civilian medical records, and assessments of right knee strain, right knee instability, and “pain soft tissue.” Range of motion testing found right knee flexion to 55 degrees and right knee extension “hyperextends 10 degrees.” Additional functional loss was noted as resulting in less movement than normal, weakness, fatigue, incoordination, pain, swelling, instability and interference with sitting and standing. Additional functional loss estimated to result in flexion of 40 degrees. Muscle testing was recorded as 2/5 for flexion and extension. Joint instability testing was recorded as being performed but there was found to be “no” joint instability. A March 2019 addendum to the June 2017 VA examination report noted there was no evidence of pain with weight bearing, nor additional functional loss upon repetitive use or flare-ups. The Veteran was recently afforded an additional Board hearing in November 2020 where he testified as to suffering from “basically…the same level of impairment since 2017” private DBQ completed by Dr. Tabor. The Veteran reported usage of a cane and previously using a brace for stability, but no longer using the brace because “it wasn’t significant enough to where it wasn’t still an issue.” Nevertheless, the Veteran did report having purchased a cane to help with stability in his knee and to give himself support if his knee buckled. The Veteran also reported receiving steroidal injections. The Veteran was specifically asked if the cane had been prescribed, but he denied a prescription had been rendered. Analysis Based on the above evidence, the Board finds that increased ratings under Diagnostic Codes 5260 and 5261, are unwarranted. Even with consideration of pain, repetitive use over time, and flare-ups, range of motion testing and estimated range of motion did not meet the criteria for compensable ratings. That is, while the Veteran’s right knee has been painful, repetitive motion testing and flare-ups have not been shown to so limit the functioning of the right knee as to support a higher rating based on limitation of motion. Indeed, as testified at his recent November 2020 Board hearing, his right knee symptomatology has remained at the “same level of impairment” as recorded during the 2017 private examination. The measurements recorded during the 2017 examination, at worse, amount to 54 degrees flexion and without limitation of extension. Even in consideration of the examiner’s estimate of additional functional loss of flexion to 40 degrees, these figures fail to warrant an evaluation in excess of the 10 percent rating already assigned, as a rating in excess of 10 percent based on flexion would require flexion to be functionally limited to 30 degrees. Thus, the Board finds that the Veteran’s functional impairment is appropriately assigned the initial 10 percent rating under DC 5260. As noted, the Veteran consistently demonstrated full extension such that a separate rating is not warranted for limitation of extension. The Board does find that a separate 10 percent rating is warranted under Diagnostic Code 5257 for mild instability of the right knee. Generally, all instability testing was negative, throughout the course of the appeal. The lone exception to this appears to be at the Veteran’s October 2017 DBQ where instability was noted, although clinical testing still found no instability. However, the Veteran did testify at his 2020 exam that he used a cane because of stability issues with his right knee. A rating in excess of 10 percent is not warranted under either version of Diagnostic Code 5257. For example, the Veteran testified at his November 2020 Board hearing that he was no longer wearing a knee brace as his instability “wasn’t significant enough.” He also acknowledged that neither a brace nor cane had ever been prescribed. Finally, the clinical stability testing throughout the course of the appeal never showed any instability. The Board has also considered whether it may be appropriate to rate the right knee disability under other diagnostic codes but finds that no higher or separate ratings are warranted. The Board notes that there is no evidence or allegation suggesting the Veteran’s knees are productive of ankylosis, dislocated or symptomatic of semilunar cartilage removal, impairment of the tibia or fibula, or genu recurvatum. Therefore, higher or separate ratings under the corresponding diagnostic codes (5256, 5258, 5259, 5262, and 5263) are not warranted. In so finding, the Board notes that the Veteran is competent to report on symptoms and sincere in his belief that he is entitled to a higher rating. His lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the extent of the knee impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. An initial disability rating in excess of 10 percent for right hip strain. The Veteran’s right hip strain has been rated as 10 percent disabling under DC 5253 throughout the entire period on appeal. The Board finds that an increased rating is not warranted at any point during the period on appeal. Under Diagnostic Code 5253, a 10 percent is warranted for limitation of rotation of the affected leg (with an inability to “toe-out” more than 15 degrees), or for limitation of adduction causing an inability to cross legs; and a 20 percent rating is warranted for limitation of abduction resulting in motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Under DC 5252, limitation of flexion of the thigh, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is assigned if flexion is limited to 30 degrees. A 30 percent rating is assignable if flexion is limited to 20 degrees, and a 40 percent rating is assignable if flexion is limited to 10 degrees. Under DC 5251, a 10 percent rating is the maximum rating assignable for limitation of extension to 5 degrees. Normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. Facts On VA examination in May 2006 the Veteran complained of pain, stiffness, and occasional lack of endurance, and said that he was unable to walk or stand for longer than 10 minutes. He said that the pain occurs 3 times per week and lasts for 2 hours each episode; and described it, on a scale from 1 to 10 (with 10 being the worst pain) as a 5. He stated that the pain can be elicited by physical activity or just comes by itself; and that it is relieved by rest. He added his condition does not cause incapacitation, and that he had not lost any time from work due to his hip disability. The examiner observed that the Veteran’s posture and gait were within normal limits and he did not require an assistive device for ambulation, but there were signs of tenderness in the right hip. Range of motion testing found flexion of the right hip to 110 degrees, with pain starting at 110 degrees; extension to 20 degrees, with pain at 20 degrees; adduction to 15 degrees, with pain at 15 degrees; abduction to 35 degrees, with pain at 35 degrees; and external and internal rotation to 35 degrees, with pain occurring at 35 degrees. On VA examination of the right hip in October 2009, the Veteran complained of some intermittent aching, and of a popping in his right hip if he moved the wrong way. He denied using any braces or other aids. He also denied any limitations in his activities of daily living or working and reported no flares or incapacitating events. Physical examination found full nonpainful range of motion of the right hip. Regarding the femur fracture itself, there was some intermittent aching in the thigh, but no other real complaints. Leg lengths were equal, and he was neurovascularly sensory intact, but there was significant quad atrophy, and some shortening and scarring of the quadriceps mechanism. X-rays of the right femur showed healed MID femoral shaft fracture and an intramedullary nail with distal interlocking screws. There was no evidence of acute fracture. The examiner determined that the Veteran has a healed midshaft femur fracture with retained hardware. At his March 2014 Board hearing, the Veteran testified to similar symptomatology reported at his VA examinations including pain and limitation of motion. On VA examination in October 2014 the Veteran complained of constant pain. The examiner noted that the Veteran did not use any assistive devices. Range of motion testing found right hip flexion to 90 degrees, with pain beginning at 75 degrees; right hip extension to 20 degrees; right hip external rotation to 50 degrees, with pain beginning at 40 degrees; right hip internal rotation to 30 degrees, with pain beginning at 20 degrees; right hip adduction to 20 degrees, with pain beginning at 10 degrees; and right hip abduction to 30 degrees, with pain beginning at 20 degrees. Range of motion after 3 repetitions found 90 degrees flexion; 20 degrees extension; external rotation to 50 degrees; internal rotation to 30 degrees; adduction to 20 degrees; and abduction to 30 degrees. Muscle strength was normal, and there was no ankylosis, malunion, or nonunion. The examiner concluded that there was functional loss of the hip and thigh/less movement than normal due to pain on movement, but that the Veteran’s right hip/thigh condition did not impact his ability to work. On VA examination in August 2017, the Veteran reported chronic pain with movement without flare-ups. Range of motion testing was found to be “all normal,” right hip flexion was to 125 degrees; right hip extension to 30 degrees; right hip external rotation to 60 degrees, right hip internal rotation to 40 degrees, right hip adduction to 25 degrees, and right hip abduction to 40 degrees. Pain was observed on flexion and external rotation. No evidence of pain on weight bearing. Range of motion after 3 repetitions was the same. Muscle strength was normal, and there was no flail joint, malunion, or nonunion. A September 2017 private examination from Dr. Tabor recorded range of motion testing of right external rotation to 28 degrees, right internal rotation to 18 degrees, right flexion to 43 degrees, right abduction to 13 degrees, right adduction to 16 degrees, and right extension to 11 degrees, with measurements “taken using a goniometer.” An October 2017 Hip Conditions DBQ completed by a private examiner reflects review of military and civilian medical records, and assessments of “pain in joint, pain soft tissue, and closed right hip fx.” Range of motion testing found right external rotation to 40 degrees, right internal rotation to 20 degrees, right flexion to 70 degrees, right abduction to 15 degrees, right adduction to 15 degrees without ability to cross legs, and right extension to 0 degrees. There was no change in range of motion upon repetition, but there was evidence of pain on weight bearing. Additional functional loss was noted as resulting in less movement than normal, weakness, fatigue, incoordination, pain, instability and interference with sitting and standing. Additional functional loss during a flare was estimated to result in right external rotation to 30 degrees, right internal rotation to 10 degrees, right flexion to 50 degrees, right abduction to 10 degrees, right adduction to 10 degrees without ability to cross legs, and right extension to 0 degrees. Muscle testing was recorded as 2/5 for abduction and flexion and 3/5 extension. No muscle atrophy, ankylosis or joint malunion was found. A September 2019 Hip Conditions Leg DBQ completed by a private examiner reflects review of military and civilian medical records. No right hip diagnoses were recorded. Range of motion testing found right external rotation to 35 degrees, right internal rotation to 20 degrees, right flexion to 40 degrees, right abduction to 15 degrees, and right adduction to 10. There was no change in range of motion upon repetition, but there was evidence of pain on weight bearing. Functional loss was noted as resulting in less movement than normal, weakness, fatigue, incoordination, pain, instability and interference with sitting and standing. Additional functional loss during a flare was estimated to result in right external rotation to 30 degrees, right internal rotation to 10 degrees, right flexion to 40 degrees, right abduction to 10 degrees, right adduction to 10 degrees without ability to cross legs, and right extension to 0 degrees. Muscle testing was recorded as 2/5 for abduction and flexion and 3/5 extension. No muscle atrophy, ankylosis or joint malunion was found. In February 2020 the Veteran was afforded another VA examination in conjunction with his claim of entitlement to service connection for a left hip disorder. No right hip diagnoses were recorded. Veteran reported flare-ups resulting in more pain during colder temperatures. Range of motion testing found right external rotation to 20 degrees, right internal rotation to 20 degrees, right flexion to 80 degrees, right abduction to 30 degrees, right adduction to 20 without ability to cross legs, and right extension to 30 degrees. Examiner noted a “poor functional exam of the right hip…pain to bear any weight.” There was tenderness and evidence of pain on weight bearing without additional loss on repetition. Additional functional loss during a flare was noted as resulting in pain without additional estimated loss of range of motion. Muscle testing was recorded as normal. No muscle atrophy, ankylosis or joint malunion was found. Usage of cane noted. The Veteran was recently afforded an additional Board hearing in November 2020 where he testified as to suffering from painful range of motion which is “not as predominant” as the knee and back issues. Veteran reported pain and an inability to cross his legs, treated with pain medication. Analysis In viewing the Veteran’s contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran’s right hip disability is appropriately evaluated as 10 percent disabling. The medical evidence of record does not show limitation of abduction resulting in loss of motion beyond 10 degrees so as to support an evaluation in excess of the 10 percent presently assigned for the Veteran’s right hip/femur disability. 38 C.F.R. § 4.71a, Diagnostic Code 5253. See also DeLuca, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59. Also, flexion of the right hip has been shown to be, at worst, to 50 degrees, before pain; and estimated, at worst, to 40 degrees with pain. The Veteran’s extension of the hip was shown to be limited to 0 degrees at his private examinations in 2017 and 2019, but this appears to be well out of line with the other findings throughout the course of the appeal such that a separate rating is not found to be warranted based solely on extension being limited to 5 degrees. Accordingly, a higher rating under Diagnostic Codes 5252 and 5251 is not indicated. In addition, the Veteran has not been diagnosed with ankylosis, flail joint, or nonunion or malunion of the femur with moderate hip disability to warrant consideration of a higher rating under Diagnostic Codes 5250, 5254, or 5255. Significantly, the Board notes that the Veteran’s most recent right hip range of motion measurements from the February 2020 VA examination demonstrate an improvement of his symptoms, with flexion markedly increased to 80 degrees. Moreover, this apparent improvement is corroborated by the Veteran’s own recent testimony in November 2020, wherein he reported that his hip problems were significantly less than his knee or back issues, and manifested primarily in pain upon motion, for which the current 10 percent schedular criteria adequately addresses. Thus, in light of the above, the preponderance of the evidence is against the claim for a rating higher than 10 percent for the Veteran’s “right hip strain and old healed femur fracture” disability at all times during the appeal period; the benefit of the doubt doctrine is not applicable (38 C.F.R. § 4.3); and a staged rating is in turn not warranted.   Additional Considerations Finally, while the Board acknowledges that the issue of entitlement to a total disability evaluation based upon individual unemployability (TDIU) is implicit in all increased rating claims, at last report the Veteran was gainfully employed, so the issue of TDIU is not raised. 38 C.F.R. § 4.16; Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). MICHAEL E. KILCOYNE Veterans Law Judge Veterans Law Judge Board of Veterans’ Appeals MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.