Citation Nr: 21016031 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 12-12 632 DATE: March 19, 2021 ORDER An initial increased rating in excess of 10 percent for a left wrist disability with ganglion cyst is denied. An initial increased rating in excess of 10 percent for a right hand disability is denied. An initial increased rating in excess of 10 percent for a right hip disability is denied. An initial increased rating in excess of 10 percent for a cervical spine strain is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's left wrist strain with ganglion cyst was manifested by complaints of painful motion. However, there was no evidence of favorable or unfavorable ankylosis and no evidence of arthritis. 2. Throughout the period on appeal, the Veteran's right hand strain with pain, has not shown a gap of more than two inches between the thumb and fingers with the thumb attempting to oppose the fingers, nor has there been a showing of comparable functional impairment or ankylosis of any individual joints. 3. Throughout the period on appeal, the Veteran's right hip disability manifested by limitation of motion and pain with flexion, at worst, to 85 degrees; flexion does not more nearly approximate 30 degrees and there is extension better than 5 degrees, ability to rotate toe out more than 15 degrees, adduction that allows crossing of legs, abduction better than 10 degrees, and no ankylosis. 4. Throughout the period on appeal, the Veteran's cervical spine strain was primarily manifested by painful motion, not limited to 30 degrees or less, without muscle spasm or guarding, pain on passive range of motion or non-weight bearing, or incapacitating episodes of IVDS. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for an initial rating in excess of 10 percent for a left wrist disability with ganglion cyst have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 7819, 5024, 5003, 5215. 2. Throughout the period on appeal, the criteria for an initial rating in excess of 10 percent for a right hand disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, DC 5024. 3. Throughout the period on appeal, the criteria for an initial rating in excess of 10 percent for a right hip disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5024. 4. Throughout the period on appeal, the criteria for an initial increased rating in excess of 10 percent for a cervical spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 2005 to October 2009. This matter was previously before the Board of Veterans’ Appeals (Board) in September 2017 when the issues were remanded for further development. Further development having been completed; the matter is once again before the Board. Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). In all claims for increased ratings, the Veteran is presumed to be seeking the maximum possible evaluation; 100 percent compensation for their disability. See A.B. v. Brown, 6 Vet. App. 35 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ C.F.R. 3.102, 4.3. 1. An initial increased rating in excess of 10 percent for a left wrist disability with ganglion cyst is denied. The Veteran contends that his left wrist disability, to include ganglion cyst, is worse than that which is contemplated by his current 10 percent rating under DCs 7819-5024. However, as the evidence discussed below indicates, the Veteran’s ganglion cyst has resolved since his June 2009 examination. The Veteran's left wrist disability is currently assigned a 10 percent under DC 5024 for tenosynovitis, 38 C.F.R. § 4.71a. This represents painful motion. DC 5024 provides that such diseases will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout, which will be rated under DC 5002. In pertinent part, DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. A 20 percent rating may be assigned if there is no limitation of motion but involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Id. Under DC 5215, a 10 percent rating for the wrist is warranted for either limitation of palmar flexion in line with the forearm or limitation of dorsiflexion to less than 15 degrees. 38 C.F.R. § 4.71a, DC 5215. No higher disability evaluation under DC 5215 may be assigned for the Veteran's left wrist disability because the 10 percent disability rating is the maximum evaluation under DC 5215. To warrant a higher rating than 10 percent, there must be ankylosis of the wrist under DC 5214. Id. Normal range of motion is palmar flexion to 80 degrees, dorsiflexion to 70 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. 38 C.F.R. § 4.71, Plate I. For the foregoing reasons, a rating in excess of 10 percent is not warranted at any time during the period on appeal. A review of the Veteran's medical records fails to show any diagnosis and/or evidence of ankylosis. Furthermore, these records fail to show that the Veteran's left wrist disability was of such condition that it was the functional equivalent of ankylosis. A June 2009 x-ray of the left wrist shows no evidence of fracture or other significant bone or soft tissue abnormality. A June 2009 examination indicates a diagnosis of left wrist strain with pain on use with the presence of a small ganglion cyst. The Veteran reported that the condition has been a problem over the last three and a half years and involves pain in the wrist. No history of joint replacement was noted. No functional impairment with the wrist was noted. The presence of a small ganglion was noted. Range of motion (ROM) testing revealed the following: dorsiflexion to 70 degrees with pain at 70 degrees, palmar flexion to 80 degrees without pain, radial deviation to 20 degrees without pain, and ulnar deviation to 45 degrees with pain at 45 degrees. Repetitive use was noted to cause pain, fatigue, weakness, and lack of endurance. However, no decrease in ROM was noted. Pain was noted as the main component. Ankylosis was denied. A November 2009 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include wrist movement. A March 2012 VA medical record indicates that the Veteran was evaluated after he fell and hurt his left wrist. The examiner noted full ROM and normal strength. The Veteran complained of soreness but did not complain of pain. A March 2012 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include wrist movement. An April 2012 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include wrist movement. A June 2013 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include wrist movement. A February 2014 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include wrist movement. A July 2014 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include wrist movement. A January 2015 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include wrist movement. The Veteran was afforded a VA examination in November 2015. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner noted that the Veteran was evaluated for the claimed condition of a left wrist strain with ganglion cyst. However, the examiner noted that the Veteran does not have a current diagnosis associated with the condition for which he was evaluated, and noted that imaging studies do not indicate degenerative or traumatic arthritis. Flare-ups were specifically denied. The Veteran also denied having any functional loss or impairment. Initial ROM testing revealed the following: dorsiflexion to 70 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees. No pain was noted on examination, to include with weight bearing. No evidence of localized tenderness or pain on palpation was noted. Objective evidence of crepitus was denied. Repetitive use testing was performed; however, no additional loss of function or ROM was noted. Repeated use over time testing was not performed. Pain, weakness, fatigability or incoordination was noted not to significantly limit functional ability with repeated use over a period of time. Muscle strength was noted as normal, five out of five. Muscle atrophy was denied. Ankylosis was denied. No other pertinent findings were indicated. The use of assistive devices was denied. Available imaging was noted not to show arthritis. No functional impact was noted. A December 2015 VA medical record indicates that the Veteran had normal wrist strength, five out of five. A January 2016 VA medical record indicates that the Veteran had normal wrist strength, five out of five. An April 2016 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include wrist movement. Pursuant to the September 2017 Board remand, the Veteran was afforded a VA examination in June 2020. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner noted that the Veteran was evaluated for the claimed condition of a left wrist strain with ganglion cyst. However, the examiner noted that the Veteran does not have a current diagnosis associated with the condition for which he was evaluated. Flare-ups were specifically denied. The Veteran also denied having any functional loss or impairment. Initial ROM testing revealed the following: dorsiflexion to 70 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees. No pain was noted on examination. No evidence of localized tenderness or pain on palpation was noted. Objective evidence of crepitus was denied. In addition, the June 2020 VA examination reflects no pain on passive ROM or on non-weight bearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Repetitive use testing was performed; however, no additional loss of function or ROM was noted. Repeated use over time testing was not performed. Pain, weakness, fatigability or incoordination was noted not to significantly limit functional ability with repeated use over a period of time. The examination was not conducted during a flare-up. Muscle strength was noted as normal, five out of five. Muscle atrophy was denied. Ankylosis was denied. No other pertinent findings were indicated. The use of assistive devices was denied. No functional impact was noted. No evidence of pain on passive ROM or on non-weight gearing was noted. Based upon a review of the record, throughout the period on appeal, the Board finds that a rating in excess of 10 percent for the Veteran’s left wrist disability is not warranted. In this case, there is no evidence that the Veteran had ankylosis or the functional equivalent of ankylosis in the left wrist. As there is no ankylosis of the left wrist throughout the period on appeal, a higher rating under DC 5214. Moreover, as 10 percent is the maximum available under DC 5215, an increased rating is not warranted under such code. Additionally, as there is no arthritis shown by X-rays the 20 percent under DC 5003 based on involvement of multiple joints is not applicable. Thus, the Board finds that an increased rating in excess of 10 percent is not warranted. 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). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. However, as outlined above, the evidence does not show any functional loss or impairment. In summary, the Board finds that the preponderance of the evidence is against a higher rating for the Veteran’s right wrist disability at any point during the appeal period. There is no reasonable doubt to resolve, and the appeal is denied. 2. An initial increased rating in excess of 10 percent for a right hand disability is denied. The Veteran contends that his right hand disability is worse than that which is contemplated by his current 10 percent rating under DC 5024 based on painful motion. For the foregoing reasons, a rating in excess of 10 percent is not warranted at any time during the period on appeal. The evidence reflects that the Veteran's right hand is his dominant hand. As such, major finger disability ratings are applicable for the right hand. 38 C.F.R. § 4.69. Ratings under DC 5024 are based on limitation of the affected parts as degenerative arthritis, which is evaluated under DC 5003. In this regard, DC 5003 provides that arthritis established by x-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. 38 C.F.R. § 4.71a. For the purpose of a rating disability for tendonitis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints and therefore ratable on a parity with major joints. See 38 C.F.R. § 4.45(f). Under DC 5228, a 10 percent rating is assigned when there is a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating is assigned when there is a gap of more than two inches between the thumb pad and fingers, with the thumb attempting to oppose the fingers. Id. Under DC 5229, a 10 percent rating is warranted when there is a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. 38 C.F.R. § 4.71a. 10 percent is the maximum available schedular rating under DC 5229. Another diagnostic code relating to the hand is DC 5230 for limitation of motion of the ring or little finger, with a noncompensable rating available. Under DCs 5216 to 5227 provide ratings for ankylosis of the digits of the hand. When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. See 38 C.F.R. § 4.71a, DCs 5216-5230, Note (2). In this case, a June 2009 x-ray of the right hand shows no evidence for fracture or other significant bone or soft tissue abnormality. A June 2009 examination indicates a diagnosis of right hand strain with pain on use. An x-ray was noted to show normal findings. The Veteran reported intermittent pain, occurring two times daily, with a duration of up to two hours per episode. The pain was noted to travel up the forearm and was described as aching and burning. The pain was reported as aggravated by typing and alleviated by rest. No history of infection, treatment, hospitalization, or surgery was noted. No functional impairment was noted. ROM testing of the thumb revealed the following: radial abduction to 70 degrees without pain, palmar abduction to 70 degrees without pain, MP flexion to 60 degrees without pain, and IP flexion to 60 degrees without pain. The examiner noted that repetitive use of the thumb does not cause any pain, fatigue, weakness, lack of endurance, or incoordination. ROM testing of the index finger revealed the following: DIP flexion to 70 degrees without pain, PIP flexion to 110 degrees with pain at 110 degrees, and MP flexion to 90 degrees without pain. ROM testing of the middle finger revealed the following: DIP flexion to 70 degrees without pain, PIP flexion to 110 degrees with pain at 110 degrees, and MP flexion to 90 degrees without pain. ROM testing of the ring finger revealed the following: DIP flexion to 70 degrees without pain, PIP flexion to 110 degrees with pain at 110 degrees, and MP flexion to 90 degrees without pain. ROM testing of the little finger revealed the following: DIP flexion to 70 degrees without pain, PIP flexion to 110 degrees with pain at 110 degrees, and MP flexion to 90 degrees without pain. The examiner noted that repetitive use of the fingers does not cause any pain, fatigue, weakness, lack of endurance, or incoordination. A November 2009 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include hand and finger movement. A March 2012 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include hand and finger movement. An April 2012 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include hand and finger movement. A June 2013 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include hand and finger movement. A February 2014 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include hand and finger movement. A July 2014 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include hand and finger movement. A January 2015 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include hand and finger movement. The Veteran was afforded a VA examination in November 2015. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA treatment records was completed in conjunction with the examination. The examiner noted that the Veteran does not have a current diagnosis of a right hand condition. The examiner noted a review of imaging studies, with no abnormal findings. Upon initial ROM testing, the examiner noted no evidence of painful use of the hand and no evidence of localized tenderness or pain on palpation was noted. Repetitive use testing was performed; however, no additional loss of function or ROM was noted. Repeated use over time testing was not performed. Pain, weakness, fatigability or incoordination was noted not to significantly limit functional ability with repeated use over a period of time. Grip strength was normal, five out of five. Muscle atrophy was denied. Ankylosis was denied. No other pertinent findings were indicated. The use of assistive devices was denied. Available imaging studies were noted to show no abnormal findings. No functional impact was noted. A January 2016 VA medical record indicates that the Veteran had normal strength in all fingers, five out of five. An April 2016 VA medical record indicates that the Veteran had no impairment of movement of the upper extremity, to include hand movement. Pursuant to the September 2017 Board remand, the Veteran was afforded a VA examination in June 2020. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner noted that the Veteran does not have a current diagnosis of a right hand condition. Flare-ups were specifically denied. The Veteran also denied having any functional loss or impairment. Upon initial ROM testing, the examiner noted that the Veteran had full ROM. No gap was noted between the pad of the thumb and the fingers. No pain was noted. No evidence of localized tenderness or pain on palpation was noted. Repetitive use testing was performed; however, no additional loss of function or ROM was noted. Repeated use over time testing was not performed. Pain, weakness, fatigability or incoordination was noted not to significantly limit functional ability with repeated use over a period of time. The examination was not conducted during a flare-up. Grip strength was normal, five out of five. Muscle atrophy was denied. Ankylosis was denied. No other pertinent findings were indicated. The use of assistive devices was denied. No functional impact was noted. No evidence of pain on passive ROM or on non-weight gearing was noted. In addition, the June 2020 VA examination reflects no pain on passive ROM or on non-weight bearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In light of the above, a rating in excess of 10 percent is not available for the Veteran's right hand condition. Considering DCs 5228 or 5229 for limitation of motion, the record does not evidence a gap between the pad of the thumb and fingers of the Veteran's right hand; or between the finger and proximal transverse crease of the hand on maximal finger flexion. Consideration has been given as to whether compensable ratings are available under any other DCs for the Veteran's service-connected right-hand disability. As discussed above, there is no evidence of functional impairment of the right hand such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Thus, under DCs 5125 through 5156, there has been no indication of total loss of use of the Veteran's service-connected right hand or of any fingers such that the Veteran would be equally served by amputation. 38 C.F.R. § 4.71a, DCs 5125-5156. As such, ratings under these diagnostic codes are also not warranted. 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). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. However, as outlined above, the evidence does not show any functional loss or impairment. The weight of the evidence also indicates that the Veteran's right hand disability has not been so functionally limited as to warrant a rating in excess of 10 percent, as the Veteran has not displayed functional loss due to pain which resulted in decreased range of motion, nor were additional limitations of motion found after three repetitions. The record consistently indicates that pain, weakness, fatigability or incoordination did not significantly limit functional ability in the Veteran's right hand or fingers with repeated use over time. As such, while the Veteran may, at times, experience pain on range of motion, pain has not been shown to effectively limit motion in his right thumb, such that a gap of more than two inches between the thumb and the fingers results. Moreover, the Board finds that an increased rating under DCs 5216 to 5227 are not warranted, as the Veteran’s right hand and digits do not demonstrate ankylosis. Additionally, an increased rating is not warranted under DCs 5024 and 5003, as the Veteran does not have a diagnosis of arthritis of his right hand and digits. Thus, as described above, the weight of the probative evidence of record demonstrates that the Veteran's service-connected right hand disability does not warrant a rating in excess of 10 percent, at any time during the appeal period, and the claim is denied. 3. An initial increased rating in excess of 10 percent for a right hip disability is denied. The Veteran contends that his right hip disability is worse than that which is contemplated by his current 10 percent rating under DC 5024. For the foregoing reasons, a rating in excess of 10 percent is not warranted at any time during the period on appeal. DC 5024 states that tenosynovitis will be rated on limitation of motion of affected parts, as arthritis, degenerative. In this regard, DC 5003 provides that arthritis established by x-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. 38 C.F.R. § 4.71a. Disorders of the hips are rated under DCs 5250 through 5255 of 38 C.F.R. § 4.71a. Hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. DC 5250 contemplates 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 rating; intermediate ankylosis warrants a 70 percent rating; and unfavorable ankylosis, which contemplates extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated, warrants a 90 percent rating. Under DC 5251 (limitation of extension of the thigh), a 10 percent rating is assigned with extension limited to 5 degrees. This is the maximum rating available under DC 5251. Under DC 5252 (limitation of flexion of the thigh), a 10 percent rating is assigned with flexion limited to 45 degrees; a 20 percent rating is assigned with flexion limited to 30 degrees; a 30 percent rating is assigned with flexion limited to 20 degrees; and a 40 percent rating is assigned with flexion limited to 10 degrees. Under DC 5253, pertaining to impairment of the thigh, a 10 percent rating is warranted for limitation of adduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees; a 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. An 80 percent disability rating will be assigned under DC 5254 when there is a flail joint of the hip. DC 5255 contemplates impairment of the femur. Malunion of the femur warrants a 10 percent rating with slight knee or hip disability, a 20 percent rating with moderate knee or hip disability, and 30 percent rating with marked knee or hip disability. 38 C.F.R. § 4.71a. The terms "moderate" and "marked" are not defined in the VA Schedule. Rather than applying a mechanical formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. Terminology such as "moderate" and "marked" used by VA examiners and others, although an element of evidence to be considered by the Board, are 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. However, the Board also considers changes that became effective February 7, 2021. The changed DC 5255 no longer includes the words “marked,” “moderate,” and “slight,” and instead provides that malunion of the femur is rated under appropriate hip or knee diagnostic codes, whichever results in the highest evaluation. 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 5255). The old rating criteria noted above will be applied for all rating period prior to February 7, 2021, and from February 7, 2021, the Board will apply the more favorable criteria. In this case, a June 2009 x-ray of the right hip shows no evidence of fracture or other significant bone, joint, or soft tissue abnormality. A June 2009 examination indicates a diagnosis of right hip strain with pain on use. The Veteran complained of pain, which was noted as intermittent, occurring three times a week, and lasting two to three hours in duration. Pain was reported to travel down the hip joint into the front part of the groin. Pain was described as aching and sharp, with a severity of four out of ten. The Veteran reported that pain is aggravated by physical activity, and usually goes away by itself. ROM testing revealed the following: flexion to 90 degrees with pain at 90 degrees, extension to 30 degrees without pain, adduction to 25 degrees with pain at 25 degrees, abduction to 45 degrees with pain at 45 degrees, external rotation to 60 degrees without pain, and internal rotation to 40 degrees with pain at 40 degrees. Repetitive use was noted to cause pain, fatigue, weakness, and lack of endurance. However, no decrease in ROM was noted. Pain was noted as the main component. Ankylosis was denied. The examiner noted that the Veteran is able to function without medication, but that the Veteran has to walk very awkwardly and slowly. In addition to the pain, the Veteran reported stiffness, locking, and a popping sensation. However, no treatment for the condition was reported. Hospitalizations or surgery, to include joint replacement, was specifically denied. Functional impairment was noted as interference with walking and standing. A November 2009 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include hip movement. A February 2011 VA medical record indicates no deficit of internal or external hip rotation. A March 2012 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include hip movement. An April 2012 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include hip movement. A June 2013 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include hip movement. A February 2014 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include hip movement. A July 2014 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include hip movement. A January 2015 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include hip movement. An April 2015 VA medical record indicates reported hip pain. The Veteran was afforded a VA examination in November 2015. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner noted review of imaging studies and found no degenerative or traumatic arthritis and no other significant findings or results. Flare-ups were specifically denied. Initial ROM testing revealed the following: flexion to 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. No pain was noted on examination, to include with weight bearing. No evidence of localized tenderness or pain on palpation was noted. Objective evidence of crepitus was denied. Repetitive use testing was performed; however, no additional loss of function or ROM was noted. Repeated use over time testing was not performed. Pain, weakness, fatigability or incoordination was noted not to significantly limit functional ability with repeated use over a period of time. Muscle strength was noted as normal, five out of five. Muscle atrophy was denied. Ankylosis was denied. No other pertinent findings were indicated. The use of assistive devices was denied. No functional impact was noted. A January 2016 VA medical record indicates reported hip pain. An April 2016 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include hip movement. A February 2017 VA medical record indicates reported hip pain. Pursuant to the September 2017 Board remand, the Veteran was afforded a VA examination in June 2020. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. Flare-ups were specifically denied. The Veteran also denied having any functional loss or impairment. Initial ROM testing revealed the following: flexion to 85 degrees, extension to 20 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees. Adduction was not limited such that the Veteran is unable to cross his legs. ROM was noted to contribute to functional loss in that the Veteran has difficulty with high stepping. Pain was noted on flexion and internal rotation and to cause functional loss. Objective evidence of pain with weight bearing was denied. No evidence of localized tenderness or pain on palpation was noted. Objective evidence of crepitus was denied. Repetitive use testing was performed; however, no additional loss of function or ROM was noted. Repeated use over time testing was not performed. No additional contributing factors were noted. Muscle strength was noted as normal, five out of five. Muscle atrophy was denied. Ankylosis was denied. No other pertinent findings were indicated. The use of assistive devices was denied. Functional impact was noted as difficulty in climbing stairs and ladders. No evidence of pain on passive ROM or on non-weight gearing was noted. In addition, the June 2020 VA examination reflects no pain on passive ROM or on non-weight bearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Having carefully reviewed the record, neither the lay nor the medical evidence of record more nearly approximates the criteria for an evaluation higher than 10 percent for the Veteran's right hip disability. The current 10 percent rating is predicated on painful motion that is noncompensable. The evidence shows that the Veteran had, at worst, 85 degrees of flexion, with painful motion. Therefore, the evidence does not reflect the criteria for the next higher rating based on limitation of flexion. 38 C.F.R. § 4.71a, DC 5252. A higher rating is not warranted under any other potentially applicable schedular criteria given the absence of ankylosis, limitation of extension to 5 degrees or less, abduction lost beyond 10 degrees, adduction that does not allow crossing of legs, and rotation that does not allow toe out more than 15 degrees. 38 C.F.R. § 4.71a, DCs 5250, 5251, and 5253. Additionally, an increased rating is not warranted under DCs 5254 or 5255, as there is no indication of hip flail joint or impairment of femur. 38 C.F.R. § 4.71a, DCs 5254, 5255. Although the Board has considered the changes to DC 5255, the Board does not find application of such code to be applicable as there is no impairment of the femur, and, moreover, the changed regulations are not applicable in this case as there is no relevant evidence as of or following the effective date of February 7, 2021. Additionally, an increased rating is not warranted under DCs 5024 and 5003, as the Veteran does not have a diagnosis of arthritis of his right hip. The Veteran has experienced functional impairment, pain, and pain on motion. See DeLuca. The Veteran's reports of symptomatology are credible, and the functional impact of pain has been considered. Nevertheless, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation under the pertinent DCs when considering such factors as pain, weakness, fatigue, lack of endurance and incoordination. However, the more probative evidence, as discussed above, demonstrates that the currently assigned 10 percent rating is appropriate. Therefore, a rating in excess of 10 percent for the Veteran’s right hip disability is not warranted, at any time during the period on appeal, and the claim is denied. 4. An initial increased rating in excess of 10 percent for a cervical spine strain is denied. The Veteran contends that his cervical spine strain is worse than that which is contemplated by his current 10 percent rating under DC 5237. For the foregoing reasons, a rating in excess of 10 percent is not warranted at any time during the period on appeal. Cervical spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a , Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a , Diagnostic Code 5243, Note (1). Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted with forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, muscle spasm, guarding, localized tenderness not resulting in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis is present, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted with forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, combined range of motion of the cervical spine is not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis is present. A 30 percent evaluation is warranted if forward flexion of the cervical spine is 15 degrees or less or there is favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted if there is unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a , General Rating Formula for Disease and Injuries of the Spine. Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 degrees. 38 C.F.R. § 4.71, Plate V. The Board notes that DC 5243 was edited with changes effective February 7, 2021. 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 5243). The old rating criteria noted above will be applied for all rating period prior to February 7, 2021, and from February 7, 2021, the Board will apply the more favorable criteria. While the Board has considered such changes, the Board does not find that the changes impact the rating here, and the Board does not find that the changed regulations are applicable in this case as there is no relevant evidence as of or following the effective date of February 7, 2021. Additionally, as with the cervical spine, the Board must also consider functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran’s cervical spine disorder is rated under 38 C.F.R. § 4.71a, DC 5237. A June 2009 x-ray of the cervical spine shows good alignment throughout with disc spaces preserved and vertebral body height maintained. The impression was negative. A June 2009 examination indicates a diagnosis of cervical spine strain with pain on use. ROM testing revealed the following, all without pain: flexion to 45 degrees, extension to 45 degrees, bilateral flexion to 45 degrees, and bilateral rotation to 80 degrees. Repetitive use did not cause pain. No fatigue, weakness, lack of endurance, or incoordination was noted. No additional limitation of motion was noted. A November 2009 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include neck movement. Full ROM of the neck was noted. A March 2012 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include neck movement. A March 2012 VA medical record indicates reported neck pain rated as seven out of ten. An April 2012 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include neck movement. A May 2013 VA medical record indicates reported neck stiffness. A June 2013 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include neck movement. A February 2014 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include neck movement. A July 2014 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include neck movement. A January 2015 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include neck movement. A May 2015 VA medical record indicates reported of pain on the right side of the neck. The Veteran was afforded a VA examination in November 2015. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA treatment records was completed in conjunction with the examination. The examiner noted a diagnosis of cervical spine strain. The Veteran denied flare-ups and denied any functional loss or impairment. Initial ROM measurements were recorded as follows: forward flexion to 45 degrees, extension to 45 degrees, bilateral flexion to 45 degrees, and bilateral rotation to 80 degrees. No pain was noted on examination, to include with weight bearing. No evidence of localized tenderness or pain on palpation was noted. Repetitive use testing was performed; however, no additional loss of function or ROM was noted. Repeated use over time testing was not performed. Pain, weakness, fatigability or incoordination was noted not to significantly limit functional ability with repeated use over a period of time. Guarding and muscle spasm were denied. Muscle strength was noted as normal on all movements, five out of five. Muscle atrophy was denied. Reflex and sensory examinations revealed normal results. Radicular pain or signs or symptoms of radiculopathy was denied. Ankylosis was denied. No neurologic abnormalities were noted. IVDS was denied. The use of assistive devices was denied. No other pertinent findings were indicated. Available imaging was noted not to show arthritis. No functional impact was noted. A December 2015 VA medical record indicates that the Veteran reported sharp neck pain without radiation. He specifically denied numbness, tingling, and weakness to the bilateral upper extremity. Imaging from December 2015 showed no significant bony neural foraminal encroachment on either side, well preserved vertebral and disc space height, and no cervical ribs or significant areas of facet sclerosis. A January 2016 VA medical record indicates that the Veteran reported neck pain. It was noted that the Veteran had flexion to 30-35 degrees, extension to 20-25 degrees, bilateral rotation to 35-40 degrees, and limited bilateral flexion. Muscle strength was noted as normal. An April 2016 VA medical record indicates that the Veteran had no impairment of movement of the trunk, to include neck movement. The Veteran reported no longer having neck pain. A May 2017 VA medical record indicates that the Veteran reported neck pain. A June 2019 VA medical record indicates that the Veteran reported neck pain. Pursuant to the September 2017 Board remand, the Veteran was afforded a VA examination in June 2020. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The examiner noted a diagnosis of cervical spine strain. The Veteran reported severe flare-ups, occurring once weekly, with a duration of up to several days. The cause was reported as unknown. Flare-ups were reportedly alleviated by stretching and popping. No functional loss or impairment was reported. Initial ROM measurements were recorded as follows: forward flexion to 45 degrees, extension to 30 degrees, bilateral flexion to 40 degrees, right lateral rotation to 50 degrees, and left lateral rotation to 40 degrees. ROM itself was noted not to contribute to a functional loss. Pain was noted on forward flexion, extension, and left lateral rotation and was noted to cause functional loss. No objective evidence of pain with weight bearing was noted. No evidence of localized tenderness or pain on palpation was noted. Repetitive use testing was performed; however, no additional loss of function or ROM was noted. Repeated use over time testing was not performed. Pain, weakness, fatigability or incoordination was noted not to significantly limit functional ability with repeated use over a period of time. The examination was not conducted during a flare-up. Guarding and muscle spasm were denied. Muscle strength was noted as normal on all movements, five out of five. Muscle atrophy was denied. Reflex and sensory examinations revealed normal results. Radicular pain or signs or symptoms of radiculopathy were noted as mild intermittent pain and numbness of the left upper extremity, and such has been rated separately. No other neurologic abnormalities were noted. Ankylosis was denied, and IVDS was denied. The use of assistive devices was denied. No other pertinent findings were indicated. In terms of functional impact, the examiner noted that the Veteran will have difficulty working overhead. No evidence of pain on passive ROM or on non-weight bearing was noted. The January 2016 VA medical note indicates that the Veteran had flexion limited to 30 degrees. However, all other evidence of record indicates that the Veteran had full flexion, to 45 degrees, throughout the period on appeal. Throughout the period on appeal, the preponderance of the evidence is against a rating in excess of 10 percent for cervical spine strain. The Veteran's lay reports of symptoms and functional loss have been considered. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by these statements do not demonstrate that he has limitation of motion more nearly approximating forward flexion of 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine not greater than 170 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis during the period on appeal. As such, a rating in excess of 10 percent is not shown to be warranted during the period on appeal. Outside of the January 2016 VA medical note, which noted forward flexion of, at worst, 30 degrees, the Veteran's cervical spine disability has been productive of full flexion with painful motion. In addition, the manifestations that can be associated with the cervical spine disability - even after considering DeLuca (orthopedic) factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and in consideration of the complaints of pain on motion, do not support a finding of forward flexion of the cervical spine of 30 degrees or less. Additionally, there is no evidence of cervical spine ankylosis and the Veteran is not shown to have experienced IVDS of the cervical spine. Thus, higher ratings based on ankylosis and incapacitating episodes are not warranted at any time. Further, the examinations documented above reflect that the Veteran did not experience additional functional loss or limitation of motion with repetitive use and pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time or during flare-up. In addition, the VA examinations show no evidence of pain with weight bearing and the June 2020 VA examination reflects no pain on passive ROM or on non-weight bearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Accordingly, a rating in excess of 10 percent for the cervical spine strain is not warranted. The 10 percent rating for the cervical spine strain adequately contemplates the severity of his disability. Therefore, throughout the period on appeal, a rating in excess of 10 percent is not warranted, and the claim is denied. J. TUNIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.