Citation Nr: 21015879 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 09-23 204A DATE: March 18, 2021 ORDER Entitlement to restoration of a 100 percent rating reduction for a right hip disability status post hip arthroplasty of the femoral and acetabular components is denied. Entitlement to an initial 90 percent rating for the period from December 1, 2007, to May 17, 2012, for a right hip disability status post hip arthroplasty of the femoral and acetabular components is granted. Entitlement to an initial 90 percent rating for the period from July 1, 2013, to October 17, 2013, for a right hip disability status post hip arthroplasty of the femoral and acetabular components is granted. Entitlement to an initial 90 percent rating for the period since October 17, 2013, for a right hip disability status post hip arthroplasty of the femoral and acetabular components is granted. Entitlement to an initial rating in excess of 10 percent for postoperative residuals of a left hip osteoarthropathy is denied. Entitlement to an initial 30 percent rating for a left knee degenerative joint disease disability for the period from November 9, 2007, through March 7, 2010, is granted. Entitlement to a rating in excess of 30 percent for postoperative residuals of a total left knee replacement from May 1, 2011, through October 17, 2013, is denied. Entitlement to an initial rating in excess of 60 percent for postoperative residuals of a total left knee replacement since October 18, 2013, is denied. Entitlement to an initial 30 percent rating for right knee degenerative joint disease disability is granted. FINDINGS OF FACT 1. The 100 percent evaluation for a right hip disability status post hip arthroplasty of the femoral and acetabular components was not a standard rating “reduction” because the 100 percent rating was intended to be temporary and its discontinuance was a planned component of the temporary total rating. 2. For the periods from December 1, 2007, to May 17, 2012; from July 1, 2013, to October 17, 2013; and since October 17, 2013, the Veteran’s right hip symptoms more nearly approximated painful motion and weakness such as to require the use of crutches. 3. The Veteran’s postoperative residuals of a left hip osteoarthropathy did not demonstrate flexion limited to 30 degrees, limitation of abduction of the left thigh with motion lost beyond 10 degrees, ankylosis, a flail hip joint, or fracture or malunion of the femur. 4. For the period from November 9, 2007, through March 7, 2010, the Veteran’s left knee disability was manifested by additional functional loss that resulted in weakness, limited motion, and additional pain. 5. For the period from May 1, 2011, through October 17, 2013, the Veteran’s left knee disability, status post total knee replacement, had not been manifested by severely limited motion (to include as due to pain), severe weakness, ankylosis in flexion between 10 and 20 degrees, extension limited to 30 degrees, or nonunion of the tibia or fibula with loose motion, requiring a brace. 6. For the period since October 18, 2013, the Veteran is in receipt of the maximum disability rating under Diagnostic Code 5055 for status-post left total knee replacement in the form of severe painful motion and weakness. 7. The Veteran’s right knee disability is manifested by additional functional loss that resulted in weakness, limited motion, and additional pain. CONCLUSIONS OF LAW 1. The discontinuance of the 100 percent disability rating for the right hip disability was not improper. 38 U.S.C. §§ 1155, 5107, 5112 (2018); 38 C.F.R. §§ 3.105 (e), 3.343, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code 5054 (2020). 2. The criteria for an initial rating of 90 percent for a right hip disability status post hip arthroplasty of the femoral and acetabular components for the period from December 1, 2007, to May 17, 2012, are met. 38 U.S.C. §§ 1155, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.14, 4.71a, Diagnostic Code 5054 (2020). 3. The criteria for an initial rating of 90 percent for a right hip disability status post hip arthroplasty of the femoral and acetabular components for the period from July 1, 2013, to October 17, 2013, are met. 38 U.S.C. §§ 1155, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.14, 4.71a, Diagnostic Code 5054 (2020). 4. The criteria for an initial rating of 90 percent a right hip disability status post hip arthroplasty of the femoral and acetabular components for the period since October 17, 2013, are met. 38 U.S.C. §§ 1155, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.14, 4.71a, Diagnostic Code 5054 (2020). 5. The criteria for an initial rating in excess of 10 percent for postoperative residuals of a left hip osteoarthropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5252 (2020). 6. The criteria for an initial 30 percent rating for a left knee disability for the period from November 9, 2007 through March 7, 2010 have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5260 (2020). 7. The criteria for an initial rating in excess of 30 percent for a left knee disability for the period from May 1, 2011 through October 17, 2013 have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5260 (2020). 8. The criteria for an initial rating in excess of 60 percent for status post left knee replacement for the period since October 18, 2013 have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.45, 4.71a, Diagnostic Code 5055 (2020). 9. The criteria for an initial rating 30 percent rating for the Veteran’s right knee disability have been met. 38 U.S.C. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5260 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1975 to October 2005. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2007 and March 2008 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2014 and July and July 2018 the Board remanded these issues for additional development. In October 2014 the Veteran appeared at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In an August 2020 correspondence, the Veteran was notified that the VLJ who conducted the October 2014 was no longer available to participate in her appeal. As a result, the Veteran was provided with an opportunity to appear at a hearing before a different VLJ. The Veteran subsequently requested a new hearing and such hearing was conducted by the undersigned in November 2020. A transcript of the hearing is of record. Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). 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 to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2020). In this case, the Veteran is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). She is also competent to report symptoms of her hip and knee disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe her symptoms and their effects on employment or daily activities. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The intent of the 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. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Bilateral Hips Proposed Reduction A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See Greyzck v. West, 12 Vet. App. 288, 292 (1999) and cases cited therein. Procedurally, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105 (e). Initially, the Board finds that the RO complied with the procedural requirements for reductions. 38 C.F.R. § 3.105 (e) (2020). In June 2007, the RO proposed to reduce the Veteran’s evaluation for a right hip disability from 100 percent to 30 percent. After the proposed reduction, the Veteran was given at least 60 days to present additional evidence, and was notified at her address of record. Thereafter, in the September 2007 rating decision, the RO reduced the 100 percent evaluation for the Veteran’s right hip disability to 30 percent, effective December 1, 2007. Also in accordance with 38 C.F.R. § 3.105 (e), the reduction was made effective from December 1, 2007, well beyond the last day of the month from the 60-day period from the date of the June 2017 notice of the proposed reduction. In sum, the reduction for the Veteran’s right hip disability from 100 percent to 30 percent was effectuated in a manner that satisfies the procedural requirements under 38 C.F.R. § 3.105 (e). The Board parenthetically notes that in a January 2010 statement of the case (SOC) the RO increased the reduction of the Veteran’s right hip disability from a 30 percent rating to a 50 percent rating, effective December 1, 2007. In September 2013, VA assigned a 100 percent rating, effective May 18, 2012, and 50 percent rating from July 1, 2013. A subsequent December 2013 rating decision assigned a 70 percent rating, effective October 18, 2013. Thus, the Board finds that the provisions of 38 C.F.R. § 3.105 (e) are applicable and were met; therefore, the reduction was procedurally proper. The Board must, however, still consider whether the reduction was factually appropriate based upon the evidence of record. Regarding rating reductions, the law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344 (a) are inapplicable, as set forth in 38 C.F.R. § 3.344 (c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344 (c); 3.343(a). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” See Brown v. Brown, 5 Vet. App. 413, 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran’s responsibility to show that the disability has worsened. A rating reduction case focuses on the propriety of the reduction, and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In this case, the 100 percent disability rating for a right hip disability was in effect for less than 5 years, from November 1, 2005 to December 1, 2007. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and 38 C.F.R. § 3.344 (b) are not applicable and an examination disclosing improvement will warrant a reduction in the rating. 38 C.F.R. § 3.344 (c). The Veteran’s right hip disability is evaluated under Diagnostic Code 5054, which provides rating criteria following a hip replacement. The hip is rated at 100 percent for one year following implantation of a prosthesis. A Note to Diagnostic Code 5054 indicates that the 100 percent rating will commence following a 1-month period of convalescence, where the hip is rated 100 percent under 38 C.F.R. § 4.30. Thus, a 100 percent rating is automatically assigned for a maximum 13-month period after a hip replacement. 38 C.F.R. § 4.71a, Diagnostic Code 5054, Note 1. After the 13-month period at 100 percent ends, a minimum of 30 percent is assigned. If there are moderately severe residuals of weakness, pain, or limitation of motion, then a 50 percent rating is warranted. If there is markedly severe residual weakness, pain, or limitation of motion, then a 70 percent rating is warranted. If there is painful motion or weakness such as to require the use of crutches, then a 90 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5054. A 90 percent rating is the highest rating permitted for the hip, aside from the periods where a 100 percent rating is expressly permitted. The Board finds that entitlement to restoration of a 100 rating reduction for a right hip disability status post hip arthroplasty of the femoral and acetabular components is not warranted. The language of diagnostic code 5054 makes it clear that the 100 percent rating is essentially a temporary total rating intended to compensate a Veteran for the impairment caused by the hip replacement surgery. The Note associated with this diagnostic code again expressly states that a 100 percent rating is automatically assigned for a maximum 13-month period after a hip replacement and that a 90 percent rating is the highest rating permitted for the hip, aside from the periods where a 100 percent rating is expressly permitted. The fact that a reduction from the 100 percent rating is a planned part of the process is also clear from the fact that the regulation requires VA to apply the special notification rules that apply to standard rating reductions Because Diagnostic Code 5054 contains a temporal element for the continuance of a 100 percent evaluation, the Board finds that the action does not constitute a “rating reduction” as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (finding that a 100 percent evaluation under a prior, substantially similar version of Diagnostic Code 6819 ceased to exist by operation of law because the applicable diagnostic code contained a temporal element for that evaluation). In other words, and as will be addressed below, this case is essentially one for a staged rating, rather than a formal reduction, given the temporal element of the applicable diagnostic code. As a result, the Board finds that the discontinuance of the 100 percent evaluation for right hip disability status post hip arthroplasty of the femoral and acetabular components, effective December 1, 2007, was not improper as the discontinuance of the 100 percent evaluation for a right hip disability status post hip arthroplasty of the femoral and acetabular components was not a standard rating “reduction” because the 100 percent rating was intended to be temporary and its discontinuance was a planned component of the temporary total rating. Higher Ratings The Veteran’s right hip disability is currently rated as 100 percent disabling from November 1, 2005, to November 30, 2007; 50 percent disabling from December 1, 2007, to May 17, 2012; 100 percent disabling from May 18, 2012, to June 30, 2013; 50 percent disabling from July 1, 2013, to October 17, 2013; and 70 percent disabling since October 18, 2013. The Board notes that the Veteran has 100 percent disability ratings, effective November 1, 2005, to November 30, 2007, and from May 18, 2012 to June 30, 2013, based on surgical or other treatment necessitating convalescence for the Veteran’s service-connected right hip total replacement. Because the 100 percent rating assigned to the Veteran’s service-connected right hip disability, due to convalescence from surgery is the maximum rating available for this disability, a higher rating claim for a right hip disability, due to convalescence from surgery for the time periods between November 1, 2005, to November 30, 2007, and from May 18, 2012, to June 30, 2013, is not on appeal. As noted above, the Veteran’s claim for higher ratings for his right hip is essentially one for a staged rating, rather than a formal reduction, given the temporal element of the applicable diagnostic code (Diagnostic Code 5054). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. Prior to the regulatory change, under Diagnostic Code 5054, if there are moderately severe residuals of weakness, pain, or limitation of motion, then a 50 percent rating is warranted. If there is markedly severe residual weakness, pain, or limitation of motion, then a 70 percent rating is warranted. If there is painful motion or weakness such as to require the use of crutches, then a 90 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5054. A 90 percent rating is the highest rating permitted for the hip, aside from the periods where a 100 percent rating is expressly permitted. As of February 7, 2021, under the amended criteria, at the conclusion of the 100 percent evaluation period, evaluate resurfacing under diagnostic codes 5250 through 5255. As reflected above, in July 2018, the Board remanded the issues of entitlement to an initial compensable rating for the Veteran’s left hip disability for the period of November 9, 2007, through June 2, 2009, and entitlement to an initial rating in excess of 10 percent for postoperative residuals of a left hip osteoarthropathy since June 3, 2009, for additional development. Notably, in a May 2020 rating decision, the RO, in part, granted an initial 10 percent disability rating for postoperative residuals of a left hip osteoarthropathy for the period of November 9, 2007, through June 2, 2009. The Board notes that the increase from 0 to 10 percent for the postoperative residuals of a left hip osteoarthropathy disability for the period of November 9, 2007, through June 2, 2009, did not constitute a full grant of the benefits sought. Accordingly, the issue of entitlement to an initial rating in excess of 10 percent for postoperative residuals of a left hip osteoarthropathy disability remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The May 2020 rating decision also granted service connection for impairment of rotation, abduction or adduction of the left hip at an initial 10 percent evaluation effective August 8, 2019 under Diagnostic Codes 5003-5253 and granted service connection for limitation of extension of the left hip at an initial 10 percent evaluation effective August 8, 2019 under Diagnostic Codes 5003-5251. However, the Veteran has not disagreed with the May 2020 grant of separate evaluations for impairment of rotation, abduction or adduction of the left hip and limitation of extension of the left hip at 10 percent disability evaluations. Accordingly, these issues are not before the Board. The Veteran’s current postoperative residuals of a left hip osteoarthropathy disability are rated as 10 percent disabling under Diagnostic Code 5003-5252. Under Diagnostic Code 5251, a 10 percent evaluation is assigned for limitation of extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a Diagnostic Code 5251. Under Diagnostic Code 5252, limitation of flexion of the thigh limited to 45 degrees warrants a 10 percent evaluation; limited to 30 degrees warrants a 20 percent evaluation; limited to 20 degrees warrants a 30 percent evaluation; and limited to 10 degrees warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, impairment of the thigh with limitation of rotation of, cannot toe-out more than 15 degrees, affected leg, or limitation of adduction of, cannot cross legs, is assigned a 10 percent evaluation. Impairment of the thigh with limitation of abduction of, motion lost beyond 10 degrees, is assigned a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Diagnostic Code 5250 pertains to ankylosis of the hip. Favorable ankylosis, in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction warrants a 60 percent evaluation. Intermediate ankylosis warrants a 70 percent evaluation. Unfavorable ankylosis, extremely unfavorable ankylosis, the foot not reaching the ground, crutches necessitated, warrants a 90 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5250. Under Diagnostic Code 5254, an 80 percent evaluation is assigned for flail joint of the hip. 38 C.F.R. § 4.71a, Diagnostic Code 5254. Diagnostic Code 5255 pertains to impairment of the femur. Malunion of the femur with slight knee or hip disability warrants a 10 percent evaluation; with moderate knee or hip disability warrants a 20 percent evaluation; or with marked knee or hip disability warrants a 30 percent evaluation. Fracture of the surgical neck of the femur with false joint warrants a 60 percent evaluation. Fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, weightbearing preserved with the aid of a 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. Words such as “severe,” “moderately,” and “markedly” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. 38 C.F.R. § 3.100 (a) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present.”). Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Additionally, the use of the phrase “such as” in diagnostic codes reflects that the terms following the phrase are examples and not an exclusive list. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). “Marked” has a dictionary definition of “having a distinctive or emphasized character.” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/marked (last visited Jan. 8, 2020). “Moderate” has a dictionary definition of “limited in scope or effect.” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/moderate (last visited Jan. 8, 2020). “Severe” has a dictionary definition of “very painful or harmful.” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/severe (last visited Jan. 8, 2020). Normal ranges of motion of the hip include hip flexion from 0 to 125 degrees, hip extension from 0 to 30 degrees, hip abduction from 0 to 45 degrees, hip adduction from 0 to 25 degrees, hip external rotation from 0 to 60 degrees, and hip internal rotation from 0 to 40 degrees. 38 C.F.R. § 4.71, Plate II. Factual Background The Veteran underwent a VA examination for her bilateral hips in April 2005. The Veteran presented with complaints of bilateral hip pain and it was noted that she was to undergo hip replacement surgery soon. Her major limitation was walking which was mainly with the right hip. Her left hip also hurt but not as much as her right hip did. On examination, there was limitation of motion of the right hip which on manipulation induced pain. There was no heat, redness or swelling or tenderness over the hip joints. For the right hip, flexion was from 0 to 115 degrees, extension was from 0 to 20 degrees, adduction was from 0 to 10 degrees and abduction was from 0 to 30 degrees. External rotation of the right hip was from 0 to 40 degrees and internal rotation was from 0 to 30 degrees. For the left hip, flexion was from 0 to 125 degrees, extension was from 0 to 30 degrees, adduction was from 0 to 25 degrees and abduction was from 0 to 45 degrees. External rotation of the right hip was from 0 to 60 degrees and internal rotation was from 0 to 40 degrees. Pain, weakness, lack of endurance, fatigue or incoordination did not impact further on the range of motion after repetitive use. The diagnoses were arthritis with limitation range of motion of the right hip and moderate arthritis with minimal changes in the left hip. The Veteran underwent a VA examination for her right hip in May 2007. It was note that the Veteran underwent total right hip replacement surgery in April 2005. The Veteran’s current symptoms included intermittent pain, shooting pain that sometimes radiated down his right knee, weakness and stiffness. She sometimes had swelling. She had instability but had not fallen. She had fatigability and lack of endurance but no limitation of motion on repetitive use. She felt that her hip sometimes got out of position after clicking and then would pop back in. She could stand for 10-15 minutes and could walk ½ mile. She had difficulty going up and down stairs and her activities of daily living were affected as she had limited exercise ability. On examination her strength was normal and there was no ankylosis. For the right hip, flexion was from 0 to 80 degrees, extension was from 0 to 20 degrees, adduction was from 0 to 25 degrees and abduction was from 0 to 20 degrees. External rotation of the right hip was from 0 to 25 degrees and internal rotation was from 0 to 35 degrees. Internal rotation was from 0 to 25 after repetition due to pain. There was tenderness with range of motion and with palpation. There was no instability or crepitation but there was moderate guarding. The examiner noted that the Veteran’s right hip had significant occupational effects as there was decreased mobility, decreased strength and lower extremity pain. There were severe effects on shopping, exercise, sports, recreation and traveling. A December 2007 VA treatment report noted that the Veteran presented with a “squeaking” right hip since her hip replacement surgery. The Veteran underwent a VA examination in January 2008. The Veteran reported flare-ups of her joints with any strenuous activity. On examination, right hip flexion was from 0 to 90 degrees, extension was from 0 degrees, adduction was from 0 to 20 degrees and abduction was from 0 to 5 degrees. She had pain with all movement. There was no fatigue, weakness or lack of endurance and repetitive motion did not increase the range of loss of motion. There was no ankylosis. Weight bearing was good, but she walked with a limp. The diagnosis was osteoarthritis of the right hip status postop total hip replacement with residuals. The Veteran underwent a VA examination in June 2009. The examiner noted that the Veteran had a gradual aching and stiffness in the left hip with painful movement with walking and pain lying on that side. Her current symptoms included intermittent painful flares and intermittent radiation down the left leg. There was no additional loss of motion with flares. There was no weakness, swelling or heat but there was stiffness and instability. There was no locking but there was fatigability and lack of endurance. There was no ankylosis and no loss of strength. On examination, there was tenderness, moderate guarding and she was “somewhat shaky” with movement. For the left hip, flexion was from 0 to 80 degrees, extension was from 0 to 30 degrees, adduction was from 0 to 20 degrees and abduction was from 0 to 20 degrees. External rotation of the left hip was from 0 to 35 degrees and internal rotation was from 0 to 45 degrees. The diagnosis was left hip osteoarthropathy. The Veteran underwent a VA examination in September 2009. The Veteran reported that after about a year after her arthroplasty she began to have increasing pain in her right hip along with stiffness. She currently had pain in her right hip, and it swells, “squeaks” and felt like it was coming out of its socket. The Veteran’s hip had pain, deformity, instability, stiffness, weakness, incoordination and decreased speed of joint motion. She could not lay on her right hip due to pain. She had warmth and flare-ups of joint disease. When she went to the mall and walked it became more painful as it also did when she was going up and down stairs. She will stop her activity when it flares-up and sit down and wait until it subsides which usually takes about 15-20 minutes. She was able to stand for 15-30 minutes and could walk ¼ mile. She had a cane that she used to get in and out of her car but did not use it for walking in general. The examination revealed tenderness and weakness. For the right hip, flexion was from 0 to 75 degrees, extension was from 0 to 35 degrees, and abduction was from 0 to 35 degrees. There was no ankylosis. The diagnosis was a total right hip replacement with significant effects on her usual occupation as she had decreased mobility, weakness or fatigue, decreased strength and pain. The Veteran underwent a VA examination in October 2013. It was noted that the Veteran had right hip revision surgery in May 2012. She had flare-ups as pain that lasted several hours where she was “unable to do anything but sit down”. For the right hip, flexion was from 0 to 30 degrees, extension was 0 degrees, adduction was from 0 to 15 degrees and abduction was from 0 to 25 degrees. Abduction was lost beyond 10 degrees and adduction was limited to such that the Veteran could not cross her legs. Her rotation as not limited such that she could not toe out more than 15 degrees. External rotation of the right hip was from 0 to 15 degrees and internal rotation was from 0 to 35 degrees. Internal rotation was from 0 to 20 degrees after repetition due to pain. The Veteran was unable to range of motion testing of the left hip secondary to pain and hip “catching”. The Veteran was unable to perform repetitive use testing of the right hip due to “catching”. She had functional loss or functional impairment of both hips as she had less movement than normal, weakened movement, and pain on movement. Pain and weakness additionally limited functional ability during flare-ups or over a repeated use of time but the examiner was unable to state in degrees how much additional functional loss there was. There was localized tenderness of both hips. Muscle strength testing revealed active movement against some resistance (4/5) for right and left hip flexion and abduction. There was palpable or visual muscle contraction but no joint movement (1/5) on the right and left hip extension. There was no ankylosis. The Veteran’s residuals of her right knee replacement and revision surgeries were chronic residuals consisting of severe painful motion and/or weakness. She regularly used a brace and constantly used a walker. The cane was to assist her ambulation due to her hip and knee disabilities. The Veteran’s hip disabilities impacted her ability to work as she could sit for 45 minutes and stand for 15 minutes at one time and sit for 4 hours and stand for 1 to 2 hours during an 8-hour day. Per the July 2018 Board remand instructions, the Veteran underwent a VA examination in September 2019. The Veteran presented with reports of constant bilateral hip pain with moderate functional loss with repetitive use over time due to pain. The Veteran reported flare-ups which occurred every other day and lasted all day. She had moderate functional loss due to flare-ups with pain as she stated that it felt like “a razor was cutting me”. She reported functional loss as she could not sleep at night and had functional limitations with walking, standing and sitting. For the right hip, flexion was from 0 to 40 degrees, extension was from 0 to 10 degrees, adduction was from 0 to 20 degrees and abduction was from 0 to 10 degrees. External rotation of the right hip was from 0 to 40 degrees and internal rotation was from 0 to 30 degrees. Adduction was limited such that the Veteran could not cross her legs. The range of motion itself contributed to functional loss as she had difficulty walking steps/stairs, climbing, lifting, squatting, kneeling, pushing and pulling. There was moderate localized tenderness and evidence of pain with weight bearing but no evidence of crepitus. For the left hip, flexion was from 0 to 60 degrees, extension was from 0 to 10 degrees, adduction was from 0 to 20 degrees and abduction was from 0 to 10 degrees. External rotation of the right hip was from 0 to 40 degrees and internal rotation was from 0 to 30 degrees. Adduction was limited such that the Veteran could not cross her legs. The range of motion itself contributed to functional loss as she had difficulty walking steps/stairs, climbing, lifting, squatting, kneeling, pushing and pulling. There was moderate localized tenderness and evidence of pain with weight bearing but no evidence of crepitus. For the Veteran’s right and left hips, she was able to perform repetitive use testing and there was no additional loss of function or range of motion after 3 repetitions. For the Veteran’s right hip, pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time and during flare-ups as flexion was from 0 to 30 degrees, extension was from 0 to 5 degrees, adduction was from 0 to 15 degrees and abduction was from 0 to 5 degrees after repetitive use over time. External rotation of the right hip was from 0 to 35 degrees and internal rotation was from 0 to 25 degrees and adduction was limited such that the Veteran could not cross her legs. For the Veteran’s left hip, pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time and during flare-ups as flexion was from 0 to 50 degrees, extension was from 0 to 5 degrees, adduction was from 0 to 15 degrees and abduction was from 0 to 5 degrees after repetitive use over time. External rotation of the left hip was from 0 to 35 degrees and internal rotation was from 0 to 25 degrees and adduction was limited such that the Veteran could not cross her legs. The examiner also noted that on the examination, the Veteran exhibited pain with walking, pain with heel, toe and tandem walking; and pain with squatting/kneeling. The Veteran’s right and left hips had a reduction in muscle strength as flexion, extension and abduction demonstrated active movement against some resistance (4/5) bilaterally. There was no muscle atrophy and no ankylosis. The examiner noted that the Veteran had moderately severe residuals of weakness, pain and limitation of motion following her 2 right hip replacement surgeries. She regularly used a cane for her hip disabilities. The Veteran’s bilateral hip disabilities impacted her ability to work as she exhibited decreased range of motion, tenderness, pain with walking, pain with heel, toe and tandem walking; and pain with squatting/kneeling. Right Hip The Veteran’s right hip disability is currently rated as 100 percent disabling from November 1, 2005, to November 30, 2007; 50 percent disabling, from December 1, 2007, to May 17, 2012; 100 percent disabling from May 18, 2012, to June 30, 2013; 50 percent disabling from July 1, 2013, to October 17, 2013; and 70 percent disabling since October 18, 2013. As an initial matter for all periods, the Board notes that the Veteran does not warrant a compensable rating for limited range of motion. Under Diagnostic Code 5003, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applicable for each such major joint affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, as the Veteran’s limitation of motion is considered under Diagnostic Code 5054 for her hip replacement, the Veteran is not entitled to a separate rating under Diagnostic Code 5003 as it would constitute pyramiding. 38 C.F.R. § 4.14 (“[t]he evaluation of the same disability under various diagnoses,” a practice called “pyramiding,” “is to be avoided”). Period from December 1, 2007, to May 17, 2012 As noted above, the Veteran’s right hip disability is currently rated as 50 percent disabling, from December 1, 2007 to May 17, 2012 under Diagnostic Code 5054. Based on the reported symptomatology of the Veteran’s limitation of motion and reported functional impairment and flare-ups at her May 2007, January 2008 and September 2009 VA examinations, the Board finds that when affording the Veteran the benefit of the doubt, that an initial 90 percent disability rating is warranted for the Veteran’s service-connected right hip disability for the period from December 1, 2007 to May 17, 2012. The Board notes that the examination reports from May 2007, January 2008 and September 2009 consistently document the Veteran’s complaint of severe pain, weakness and stiffness in her right hip. The May 2007 VA examiner indicated that the Veteran had difficulty going up and down stairs and her activities of daily living were affected. The examiner also noted that the Veteran’s right hip had significant occupational effects as there was decreased mobility, decreased strength and lower extremity pain while there were severe effects on shopping, exercise, sports, recreation and traveling. The September 2009 VA examiner also indicated that the Veteran hip had pain, deformity, instability, stiffness, weakness, incoordination and decreased speed of joint motion and that she could not lay on her right hip due to pain. The examiner also noted that the Veteran had a cane that she used to get in and out of her car. The Board finds that the examinations are probative because the examiners appropriately relied on the Veteran’s statements, as well as conducted full examinations to base their findings on. Furthermore, the examination reports contain findings responsive to the applicable rating criteria for the hip disability on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, the statements of the Veteran and the lay witnesses as to her symptoms are competent and credible. Accordingly, the Board finds that the Veteran’s symptoms and overall impairment more nearly approximate the criteria for a 90 percent rating for the period from December 1, 2007, to May 17, 2012. As noted above, Diagnostic Code 5054 provides that the painful motion or weakness must be of the type or severity “such as” to require the use of crutches and not that crutches are required or used by the Veteran. See Warren v. McDonald, 28 Vet. App. 194 (2016); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (the use of the phrase “such as” in diagnostic codes reflects that the terms following the phrase are examples and not an exclusive list). Given the above lay and medical evidence indicating the severity of the Veteran’s pain and weakness that the Veteran experiences due to her hip replacement, to include the use of a cane, the Board finds that the symptoms more nearly approximate the painful motion and weakness such as to require the use of crutches required under Diagnostic Code 5054 for a 90 percent rating. As noted above, rating in excess of 90 percent is not warranted as this is the maximum rating permitted under Diagnostic Code 5054 following the 13-month temporary total (100 percent) rating period. For the foregoing reasons, an initial 90 percent rating for the Veteran’s right hip disability is warranted for the period from December 1, 2007, to May 17, 2012. Period from July 1, 2013 to October 17, 2013 As noted above, the Veteran’s right hip disability is currently rated as 50 percent disabling, from July 1, 2013, to October 17, 2013, under Diagnostic Code 5054. Based on the reported symptomatology of the Veteran’s limitation of motion and reported functional impairment and flare-ups at her October 2013 VA examination, the Board finds that when affording the Veteran the benefit of the doubt, that an initial 90 percent disability rating is warranted for the Veteran’s service-connected right hip disability for the period from July 1, 2013, to October 17, 2013. Notably, at her October 2013 VA examination, the Veteran reported that she had flare-ups as pain that lasted several hours where she was “unable to do anything but sit down”. She also had functional loss or functional impairment as she had less movement than normal, weakened movement, and pain on movement. The Veteran’s residuals of her right hip replacement and revision surgeries were chronic residuals consisting of severe painful motion and/or weakness and she regularly used a brace and constantly used a walker. The examiner also noted that the Veteran’s hip disabilities impacted her ability to work as she could sit for 45 minutes and stand for 15 minutes at one time and sit for 4 hours and stand for 1 to 2 hours during an 8-hour day. The Board notes that the October 2013 examiner indicated that Veteran’s residuals of her right hip replacement and revision surgeries were chronic residuals consisting of severe painful motion and/or weakness. However, an examiner’s characterization of the level of disability is not binding on the Board. 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present”). The Board finds that the Veteran’s symptoms and overall impairment more nearly approximate the criteria for a 90 percent rating. Diagnostic Code 5054 again provides that the painful motion or weakness must be of the type or severity “such as” to require the use of crutches and not that crutches are required or used by the Veteran. See Warren v. McDonald, 28 Vet. App. 194 (2016); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (the use of the phrase “such as” in diagnostic codes reflects that the terms following the phrase are examples and not an exclusive list). Given the above lay and medical evidence indicating the severity of the Veteran’s pain and weakness that the Veteran experiences due to her hip replacement, to include the daily use of a cane, the Board finds that the symptoms more nearly approximate the painful motion and weakness such as to require the use of crutches required under Diagnostic Code 5054 for a 90 percent rating for the period from July 1, 2013, to October 17, 2013. As noted above, rating in excess of 90 percent is not warranted as this is the maximum rating permitted under Diagnostic Code 5054 following the 13-month temporary total (100 percent) rating period. For the foregoing reasons, an initial 90 percent rating for the Veteran’s right hip disability for the period from July 1, 2013, to October 17, 2013, is warranted. Period since October 17, 2013 As noted above, the Veteran’s right hip disability is currently rated as 70 percent disabling since October 17, 2013, under Diagnostic Code 5054. Based on the reported symptomatology of the Veteran’s limitation of motion and reported functional impairment and flare-ups at her September 2019 VA examination, the Board finds that when affording the Veteran the benefit of the doubt, that an initial 90 percent disability rating is warranted for the Veteran’s service-connected right hip disability for the period since October 17, 2013. Notably, at her September 2019 VA examination, the Veteran reported functional loss as she could not sleep at night and had functional limitations with walking, standing and sitting. The September 2019 VA examiner also found that the Veteran regularly used a cane. The Board notes that the September 2019 examiner indicated that the Veteran had moderately severe residuals of weakness, pain and limitation of motion following her 2 right hip replacement surgeries. However, an examiner’s characterization of the level of disability is not binding on the Board. 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present”). The Board finds that the Veteran’s symptoms and overall impairment more nearly approximate the criteria for a 90 percent rating. Diagnostic Code 5054 again provides that the painful motion or weakness must be of the type or severity “such as” to require the use of crutches and not that crutches are required or used by the Veteran. See Warren v. McDonald, 28 Vet. App. 194 (2016); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (the use of the phrase “such as” in diagnostic codes reflects that the terms following the phrase are examples and not an exclusive list). Given the above lay and medical evidence indicating the severity of the Veteran’s pain and weakness that the Veteran experiences due to her hip replacement, to include the daily use of a cane as specifically noted by the September 2019 VA examiner, the Board finds that the symptoms more nearly approximate the painful motion and weakness such as to require the use of crutches required under Diagnostic Code 5054 for a 90 percent rating for the period since October 17, 2013. As noted above, rating in excess of 90 percent is not warranted as this is the maximum rating permitted under Diagnostic Code 5054 following the 13-month temporary total (100 percent) rating period. Again, the criteria hip replacement under Diagnostic Code 5054 have changed during the period covered by this appeal, effective February 7, 2021. See, Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5054). When a law or regulation changes during the pendency of a Veteran’s appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to her claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The revised criteria of Diagnostic Code 5054 effective for the period since February 7, 2021, noted that at the conclusion of the 100 percent evaluation period, residuals of a hip replacement surgery are to evaluated under Diagnostic Codes 5250 through 5255. However, the Board notes that the current initial 90 percent evaluations assigned are higher than any of the possible evaluations available under Diagnostic Codes 5250 through 5255. As a result, the application of the prerevision criteria of Diagnostic Code 5054 is more favorable to the Veteran. For the foregoing reasons, an initial 90 percent rating for the Veteran’s right hip disability for the period since October 17, 2013, is warranted. Left Hip Based on the evidence, the Board does not find that the Veteran is entitled to an initial evaluation in excess of the current 10 percent disability rating for her postoperative residuals of a left hip osteoarthropathy. The Board notes that for a 20 percent evaluation under Diagnostic Code 5252, the Veteran must demonstrate limitation of flexion of the thigh limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2020). Such impairment was simply not documented as forward flexion of her left thigh was not limited to 30 degrees or less. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 10 percent rating properly compensates her for the extent of functional loss resulting from any such symptoms. Although it was noted on the VA examination reports that the Veteran exhibited pain on thigh motion, there was no functional loss noted to be equivalent to limitation of flexion to 30 degrees or less. See 38 C.F.R. § 4.71a, Diagnostic Code 5252. Notably, the Veteran reported on her June 2009 VA examination that she had intermittent painful flares and intermittent radiation down the left leg. However, there was no additional loss of motion with flares and for her left hip, flexion was from 0 to 80 degrees. Additionally, on her most recent September 2019 VA examination, the Veteran reported flare-ups which occurred every other day and lasted all day as she said it felt like “a razor was cutting me”. However, on the examination the Veteran was able to perform repetitive use testing with additional limitation of motion after repetitive use testing as forward flexion was from 0 to 50 degrees after 3 repetitions. To the degree that the Veteran has reported limited function, the Board notes that the September 2019 VA examiner specifically noted that during flare-ups, pain limited functional ability an additional 10 degrees as flexion was from 0 to 50 degrees with flare-ups. As a result, even considering these functional limitations of a decrease in range of motion, the adjusted range of motion does not equate to a 20 percent rating under Diagnostic Code 5252. Since flexion has not been limited to 30 degrees or less even after repetitive use or with flare-ups; the criteria for a rating in excess of a 10 percent evaluation have not been met. Thus, the Board finds that the current 10 percent evaluation adequately portrays any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of her left hip disability. In addition to testing, the Veteran had been asked to describe functional loss and impairment in various situations and he had not identified that she has loss of motion to the degree required for a higher rating in excess of 10 percent. The Board again acknowledges that the Veteran had pain, weakened movement and less movement than normal. This is well documented in the lay and medical evidence. Furthermore, the Board again accepts that she has functional impairment, pain and limited motion as demonstrated by the VA examinations. See DeLuca, supra. The Board further finds that the Veteran’s own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an evaluation in excess of 10 percent. Therefore, the Board finds that the overall impairment resulting from her postoperative residuals of a left hip osteoarthropathy disability would still more closely approximate no more than a 10 percent rating. With no objective evidence that the Veteran meets the criteria for a higher initial evaluation based on limitation of motion even considering subjective symptoms such as pain, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 10 percent as contemplated by the holding in Deluca. The Board parenthetically again notes that a May 2020 rating decision granted service connection for impairment of rotation, abduction or adduction of the left hip at an initial 10 percent evaluation effective August 8, 2019, under Diagnostic Codes 5003-5253 and granted service connection for limitation of extension of the left hip at an initial 10 percent evaluation effective August 8, 2019, under Diagnostic Codes 5003-5251. As the Veteran has not disagreed with the May 2020 grant of separate evaluations for impairment of rotation, abduction or adduction of the left hip and limitation of extension of the left hip at 10 percent disability evaluations, these issues are not before the Board. Additionally, the Board notes that prior to August 8, 2019, there is no evidence that the Veteran had extension of the thigh limited to 5 degrees to warrant a separate compensable evaluation under Diagnostic Code 5251 for this time period. Similarly, there is no evidence for the period prior to August 8, 2019, of impairment of the thigh with limitation of rotation of, cannot toe-out more than 15 degrees, affected leg, or limitation of adduction of, cannot cross legs, to warrant a separate compensable evaluation under Diagnostic Code 5253 for this time period. Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran’s functional losses equate to the criteria required for a higher rating as the reported functional loss is not equivalent to flexion limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5252. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 10 percent for postoperative residuals of a left hip osteoarthropathy disability. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2018); 38 C.F.R. § 3.102 (2020). Bilateral Knees The Veteran’s service-connected status post total left knee replacement disability is currently evaluated as 10 percent disabling, November 9, 2007, through March 7, 2010; as 30 percent disabling, effective May 1, 2011, through October 17, 2013; and as 60 percent disabling since October 18, 2013, under Diagnostic Code 5055 concerning residuals following prosthetic replacement of the knee joint. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran’s right knee degenerative joint disease is currently rated as 10 percent disabling under Diagnostic Codes 5003-5260, effective November 9, 2007. The Board notes that the Veteran has a 100 percent disability rating, effective March 8, 2010, to April 30, 2011, based on surgical or other treatment necessitating convalescence for the Veteran’s service-connected left knee total replacement. Because the 100 percent rating assigned to the Veteran’s service-connected left knee disability, due to convalescence from surgery is the maximum rating available for this disability, a higher rating claim for a left knee disability, due to convalescence from surgery for the time period between March 8, 2010, to April 30, 2011, is not on appeal. Notably, the criteria for knee replacement under Diagnostic Code 5055 have changed during the period covered by this appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 52055). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. Prior to the regulatory change, Diagnostic Code 5055, which governs knee replacement (prosthesis), provides that for one year following implantation of the prosthesis, the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to diagnostic codes 5256, 5261 or 5262. The minimum rating is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. 38 C.F.R. § 4.71a, Diagnostic Code 5055. As of February 7, 2021, under the amended criteria, Diagnostic Code 5055 notes that at the conclusion of the 100 percent evaluation period, residuals of a knee replacement surgery are to evaluated under Diagnostic Codes 5256 through 5262. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the amendments did not change the criteria under Diagnostic Codes 5256, 5258, 5259, 5260, or 5261. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. Under the criteria in effect prior to February 7, 2021, under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under the revised criteria, Diagnostic Code 5262 now provides a 30 percent evaluation for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities; a 20 percent rating is warranted for shin splints 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 10 percent rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; and a noncompensable rating is warranted for shin splints that have treatment less than 12 consecutive months, one or both lower extremities. Under the criteria in effect prior to February 7, 2021, Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). The terms “mild,” “moderate,” “moderately severe” 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.” 38 C.F.R. § 4.6 (2020). The use of terminology such as “mild” or “moderate” by VA examiners and others, 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 an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2020). VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. A claimant who has arthritis and instability of the knee may also be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257, and rating a knee disability under both of those codes does not amount to pyramiding under 38 C.F.R. § 4.14 (2020). VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate rating must be based on additional compensable disability. Under the revised criteria, Diagnostic Code 5257 for recurrent subluxation and instability now 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 or 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. A 20 percent rating is warranted for 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 warranted 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. For patellar instability under the revised Diagnostic Code 5257, a 30 percent rating is warranted 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 is warranted 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 is warranted 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. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Factual Background The Veteran underwent a VA examination in April 2005. The Veteran presented with complaints of bilateral knee pain. She wore a brace on her left knee, but her knees did not interfere with her posture or gait or her activities of daily living. On examination, there was no heat, redness or tenderness of either knee, and no effusion. The range of motion was full without restriction or pain and there was no recurrent subluxation or locking pain. There was no pathology on the examination to render a diagnosis. The Veteran underwent a VA examination in January 2008. The Veteran presented with complaints of pain in both of her knees. She reported having flare-ups with any strenuous activity. She had no episodes of subluxation or dislocation. She had no problems with activities of daily living and had not missed any work because of her knees. Flexion of her knees were from 0 to 140 degrees bilaterally and extension was 0 degrees. There was no fatigue, weakness or lack of endurance and there was no limitation in the knees. Repetition in the knees did not increase loss of range of motion. There was no edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement or guarding. She had some crepitus in the left knee. Her weight bearing was good, and she walked with a limp. The diagnosis was degenerative joint disease of the knees. The Veteran underwent a VA examination in June 2009. The Veteran reported having constant bilateral knee pain without flares. She had weakness, stiffness and swelling. She had no heat or redness. She reported instability that caused her to stumble. There was no locking or loss of range of motion on repetition. She reported having fatigability and lack of endurance. She wore a left knee brace. There was no dislocation or subluxation. On examination, the right and left knees had mild to moderate crepitation with moderate to severe grinding. There was tenderness to palpation and moderate guarding. The right and left knees had no instability. Flexion of the right knee was from 0 to 120 degrees and extension was 0 degrees. Flexion of the left knee was from 0 to 125 degrees and extension was 0 degrees. There was no ankylosis. The diagnosis was degenerative joint disease of the bilateral knees. The Veteran underwent a VA examination in October 2010. The Veteran reported weakness, stiffness, swelling, heat, redness, giving way, fatigue, lack of endurance, locking, deformity and pain of the left knee. She did not experience subluxation or dislocation. She reported flare-ups that occurred at times several times a day and lasted for hours. The severity of pain during the flare-ups was a 6/10 on the pain scale. The flare-ups were preceded by physical activity and were spontaneous. During flare-ups she had difficulty walking, standing, sleeping and sitting. She underwent left knee replacement surgery in March 2010 and described the residuals as pain, swelling and sleepless nights. On examination she had an antalgic gait which was due to her left knee. She required a cane for ambulation. Her right knee showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, subluxation or guarding. Her left knee had edema, effusion, redness and heat. The left knee showed no signs of instability, abnormal movement, weakness, tenderness, redness, heat, deformity, malalignment, subluxation or guarding. Flexion of the right knee was from 0 to 140 degrees and extension was 0 degrees. Flexion of the left knee was from 0 to 90 degrees and extension was 15 degrees. Repetitive movement was possible with no additional limitation of motion. There was no ankylosis. For both knees, joint function was not additionally limited by pain, fatigue, weakness, incoordination or lack of endurance after repetitive use. Stability testing for the right knee was within normal limits. There was slight instability of the left knee. The diagnosis was status post left total knee replacement and scar with mild instability. The examiner found that the impact on the Veteran’s occupation and daily activities was moderate. The Veteran underwent a VA examination in October 2013. The Veteran did not report flare-ups as she had constant pain “all day, every day” which limited her walking. On examination, right knee flexion was from 0 to 135 degrees and extension was 0 degrees with no objective evidence of painful motion. Left flexion was from 0 to 80 degrees and extension was 5 degrees with objective evidence of painful motion at 80 degrees flexion. The Veteran was able to perform repetitive use testing with no additional limitation of range of motion for either knee. The Veteran had functional loss of the left knee as she had less movement than normal, pain on movement and swelling. She had pain on flare-ups which additionally limited her range of motion, but the examiner was unable to state in degrees the loss of range of motion as the Veteran was unable to replicate a flare-up at the time of the examination. She had pain on palpation of the left knee. Muscle strength testing revealed active movement against some resistance (4/5) for right and left knee flexion and extension. Joint stability testing was normal for both knees and there was no evidence of dislocation or subluxation. The residuals of the Veteran’s total left knee replacement surgery in March 2010 were chronic residuals consisting of severe painful motion or weakness. The Veteran regularly used a brace and constantly used a cane. The cane was used for assisting in ambulation due to hip and knee disabilities while the left knee brace was used for support for standing and walking. The Veteran’s knee disabilities impacted her ability to work as she could walk ½ mile for 4 hours at one time sit for 45 minutes and stand for 15 minutes at one time and sit for 4 hours and stand for 1 to 2 hours during an 8 hour day. Per the July 2018 Board remand instructions, the Veteran underwent a VA examination in September 2019. The diagnosis was status total left knee replacement and degenerative joint disease of the right knee. The Veteran presented with current complaints of constant bilateral knee pain and moderate functional loss with repetitive use over time due to pain. The examiner noted that the Veteran underwent a second left knee replacement surgery in 2013. The Veteran reported flare-ups as she had weekly flare-ups that lasted 5 minutes with moderate functional loss due to pain. She reported having functional loss after sitting too long, prolonged standing and walking. On examination, right knee flexion was from 0 to 120 degrees and extension was from 120 to 0 degrees. The range of motion itself contributed to functional loss as she had difficulty walking steps/stairs, climbing, lifting, squatting, kneeling, pushing and pulling. There was objective evidence of localized pain or tenderness. There was evidence of pain with weight bearing but no evidence of crepitus. Left knee flexion was from 0 to 60 degrees and extension was from 60 to 0 degrees. The range of motion itself contributed to functional loss as she had difficulty walking steps/stairs, climbing, lifting, squatting, kneeling, pushing and pulling. There was objective evidence of localized pain or tenderness. There was evidence of pain with weight bearing but no evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional loss of range of motion after 3 repetitions. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time as the examiner found that right knee flexion was from 0 to 110 degrees and extension was from 110 to 0 degrees with repeated use over a period of time and left knee flexion was from 0 to 40 degrees and extension was from 40 to 0 degrees with repeated use over a period of time. Pain, weakness, fatigability or incoordination significantly limited functional ability during flare ups as the examiner found that right knee flexion was from 0 to 110 degrees and extension was from 110 to 0 degrees and left knee flexion was from 0 to 40 degrees and extension was from 40 to 0 degrees during flare-ups. The Veteran had disturbance of locomotion on the right and left side as the Veteran exhibited pain with walking; heel, toe and random walking; and squatting/kneeling. Muscle strength testing revealed active movement against some resistance (4/5) for right and left knee flexion and extension. There was no muscle atrophy and no ankylosis. Joint stability testing was normal for the right and left knees. The residuals of the Veteran’s total left knee replacement surgery in March 2010 were chronic residuals consisting of severe painful motion or weakness. The Veteran regularly used a cane. The Veteran’s knee disabilities impacted her ability to work as the examination revealed decreased range of motion, tenderness, pain with walking; heel, toe and random walking; and squatting/kneeling. There was no evidence of pain on non-weight bearing. Left Knee Period from November 9, 200,7 to March 7, 2010 The Veteran’s service-connected status post total left knee replacement disability is currently evaluated as 10 percent disabling for the period from November 9, 2007, through March 7, 2010, under Diagnostic Codes 5003-5260. Based on the reported symptomatology of the Veteran’s limitation of motion and reported functional impairment and flare-ups at her VA examinations, the Board finds that when affording the Veteran the benefit of the doubt, that an initial 30 percent disability rating is warranted for the Veteran’s service-connected left knee disability for the period from November 9, 2007, to March 7, 2010. The Board notes that for a 30 percent evaluation, the Veteran must demonstrate flexion limited to 15 degrees or extension must be limited to 20 degrees. Notably, on VA examination in January 2008, flexion of the left knee was normal while on the June 2009 VA examination, flexion of the left knee was from 0 to 125 degrees. However, on her January 2008 VA examination, the Veteran reported having flare-ups with any strenuous activity while at her June 2009 VA examination, the Veteran reported having constant bilateral knee pain, weakness, stiffness and swelling. The Veteran also reported having fatigability, lack of endurance and she wore a left knee brace. Notably, on examination the left knee had mild to moderate crepitation with moderate to severe grinding and there was tenderness to palpation and moderate guarding. Additionally, the Board notes that while the June 2009 VA examination demonstrated only flexion of the left knee from 0 to 125 degrees, the Veteran’s knee condition was impaired to such a degree that she underwent total left knee replacement surgery the very next year. Based on the reported symptomatology of the Veteran’s reported functional impairment at her January 2008 and June 2009 VA examinations, the Board finds that when affording the Veteran the benefit of the doubt that a higher initial 30 percent rating is warranted for the Veteran’s left knee disability for the period from November 9, 2007, to March 7, 2010. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. However, while the Board finds that the Veteran’s left knee disability warrants an initial higher 30 percent disability rating, the evidence does not demonstrate that a rating is warranted for evaluations in excess of 30 percent for the left knee disability for the period from November 9, 2007, to March 7, 2010. The Board notes that the maximum rating for limited flexion of the knee does not exceed 30 percent. Hence, Diagnostic Code 5260 is inapplicable. As noted above, to warrant a rating in excess of 30 percent for the left knee, the Veteran would have to be found to have extension limited to 30 degrees. The evidence reflects that the Veteran had full extension of the left knee without objective evidence of painful motion. There is no indication that the Veteran ever had extension of the left knee limited to 30 degrees or more, even with consideration of the DeLuca factors, to warrant a disability rating in excess of 30 percent under Diagnostic Code 5261 for the period from November 9, 2007, to March 7, 2010. Additionally, there is no showing of instability. Despite the Veteran’s complaints of instability, locking and giving way, June 2009 VA examination report showed no instability, even upon specific instability testing of the left knee. As the medical findings showed no laxity and no objective evidence of subluxation, the Board concludes that a separate disability rating under Diagnostic Code 5257 is not warranted. The Board has also considered other diagnostic codes to determine if higher evaluations are warranted for a left knee disability for the period from November 9, 2007 through March 7, 2010. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, a meniscus disability, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 do not apply. Accordingly, the Board finds that an initial 30 percent rating, but no higher, for the left knee disability for the period from November 9, 2007 through March 7, 2010, is warranted. Period from May 1, 2011 through October 17, 2013 The Veteran’s service-connected status post total left knee replacement disability is currently evaluated as 30 percent disabling for the period from May 1, 2011, through October 17, 2013, under Diagnostic Code 5055. Following a review of the evidence and the Veteran’s contentions, the Board finds that symptomatology and findings associated with the Veteran’s left knee disability do not warrant a disability rating in excess of 30 percent for the period from May 1, 2011, through October 17, 2013. The Board notes that the maximum rating for limited flexion of the knee does not exceed 30 percent. Hence, Diagnostic Code 5260 is inapplicable. As noted above, to warrant an increased rating for a left knee disability in excess of 30 percent, the Veteran would have to be found to have extension limited to 30 degrees. However, for this time period there is no indication that the Veteran ever had extension of the left knee limited to 30 degrees or more, even with consideration of the DeLuca factors, to warrant a disability rating in excess of 30 percent under Diagnostic Code 5261 as the October 2010 VA examination noted extension from 0 to 15 degrees. While it was noted on the October 2010 VA examination that the Veteran reported flare-ups that occurred at times several times a day and lasted for hours, the examiner also specifically found that there was no additional limitation of motion following repetitive testing and that joint function was not additionally limited by pain, fatigue, weakness, incoordination or lack of endurance after repetitive use. Even with consideration of the DeLuca factors, the evidence as a whole does not show that the criteria for a higher rating are approximated. For these reasons, the Board concludes that a higher rating is not warranted based on functional loss due to pain and other symptoms as contemplated by Deluca. The Board has also considered other diagnostic codes to determine if higher evaluations are warranted for a left knee disability. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, current meniscus disability, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 do not apply. The Board acknowledges the Veteran’s reports of left knee instability and giving way during the appeal period as well as the finding of mild left knee instability by the October 2010 VA examiner. However, the Board finds that this symptom is contemplated in the rating assigned under Diagnostic Code 5055, as this evaluation include weakness and are intended to compensate for all residuals of a knee replacement. Thus, to assign a separate rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257, would constitute improper pyramiding. 38 C.F.R. § 4.14. See also Tedesco v. Wilkie, 31 Vet. App. 360, 367, n. 5 (2019) (where the Secretary argued that separate ratings under Diagnostic Code 5257 were prohibited in cases involving Diagnostic Code 5055 due to improper pyramiding, the Court declined to reach the question of whether the Board committed legal error when it found that a separate rating for instability under Diagnostic Code 5257 could be granted in addition to a rating for knee replacement under Diagnostic Code 5055 because to allow such a rating would constitute improper pyramiding). Accordingly, the Board finds that an initial rating in excess of 30 percent for a left knee disability for the period from May 1, 2011, through October 17, 2013, is not warranted. Period since October 18, 2013 The Board finds that an initial rating in excess of 60 percent is not warranted for the Veteran’s residuals status post left knee replacement disability for the period since October 18, 2013. As noted above, a 60 percent rating is the highest rating available under Diagnostic Code 5055, absent the year following implantation of prosthesis under both the old and revised rating criteria. Additionally, the Board finds that the Veteran’s pain upon range of motion and weakness are accounted for under Diagnostic Code 5055 and that separately applying Diagnostic Codes 5260 or 5261 would result in pyramiding. See 38 C.F.R. § 4.14; see also Esteban, 6 Vet. App. at 261-62 (1994). The Board has also considered other diagnostic codes to determine if higher evaluations are warranted for a left knee disability. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, instability, a current meniscus disability, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5257, 5258, 5259, 5262, and 5263 do not apply. Neither the Veteran nor her representative has identified any other rating criteria that would provide a higher rating or an additional rating. The potential applications of various provisions of Title 38 of the Code of Federal Regulations (2014) have been considered whether or not they were raised by the veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Accordingly, a 60 percent rating is clearly the maximum rating assignable for the Veteran’s left knee replacement with limited range of motion and an initial rating in excess of 60 percent for the period since October 18, 2013, is not available. As the preponderance of the evidence is against the claim for initial rating in excess of 60 percent for the left knee for the period since October 18, 2013, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Knee As noted above, the Veteran’s right knee degenerative joint disease is currently rated as 10 percent disabling under Diagnostic Codes 5003-5260, effective November 9, 2007. Based on the reported symptomatology of the Veteran’s limitation of motion and reported functional impairment and flare-ups at her VA examinations, the Board finds that when affording the Veteran the benefit of the doubt, that an initial 30 percent disability rating is warranted for the Veteran’s service-connected right knee disability. The Board notes that for a 30 percent evaluation, the Veteran must demonstrate flexion limited to 15 degrees or extension must be limited to 20 degrees. On VA examination in October 2013, flexion of the right knee was from 0 to 135 degrees while on the more recent VA examination in September 2019, flexion of the right knee was from 0 to 110 degrees. However, on her September 2019 VA examination, the Veteran reported that she had weekly flare-ups that lasted 5 minutes with moderate functional loss due to pain. The examiner also indicated that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time and with flare-ups. The examiner also found that there was a disturbance of locomotion and that the Veteran’s knee disabilities impacted her ability to work as the examination revealed decreased range of motion, tenderness, pain with walking; heel, toe and random walking; and squatting/kneeling. The examination also noted that there was objective evidence of localized pain or tenderness and evidence of pain with weight bearing. Based on the reported symptomatology of the Veteran’s reported functional impairment at her September 2019 VA examination, the Board finds that when affording the Veteran the benefit of the doubt that a higher initial 30 percent rating is warranted for the Veteran’s right knee disability. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. However, while the Board finds that the Veteran’s right knee disability warrants an initial higher 30 percent disability rating, the evidence does not demonstrate that a rating is warranted for evaluations in excess of 30 percent for the right knee disability. The Board notes that the maximum rating for limited flexion of the knee does not exceed 30 percent. Hence, Diagnostic Code 5260 is inapplicable. As noted above, to warrant a rating in excess of 30 percent for the right knee, the Veteran would have to be found to have extension limited to 30 degrees. The evidence reflects that the Veteran had full extension of the right knee without objective evidence of painful motion. There is no indication that the Veteran ever had extension of the right knee limited to 30 degrees or more, even with consideration of the DeLuca factors, to warrant a disability rating in excess of 30 percent under Diagnostic Code 5261. Additionally, there is no showing of instability. Despite the Veteran’s complaints of instability, locking and giving way, all of the VA examination reports showed no instability, even upon specific instability testing of the right knee. As the medical findings showed no laxity and no objective evidence of subluxation, the Board concludes that a separate disability rating under the old or revised criteria of Diagnostic Code 5257 is not warranted. The Board has also considered other diagnostic codes to determine if higher evaluations are warranted for a right knee disability. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, a current meniscus disability, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 do not apply. Accordingly, the Board finds that an initial 30 percent rating, but no higher, for a right knee disability is warranted. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.