Citation Nr: 21030169 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-42 760 DATE: May 18, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right knee strain is denied. Entitlement to an initial rating in excess of 10 percent for left knee strain is denied. Entitlement to a rating in excess of 10 percent for status post left foot bunionette is denied. Entitlement to a rating in excess of 10 percent for status post right foot bunionette is denied. Entitlement to an initial rating in excess of 10 percent for asthma is denied. Entitlement to an initial 20 percent rating for lumbar strain is granted. Entitlement to a 20 percent rating for left hip strain, from March 19, 2014 to December 5, 2014, is granted. Entitlement to an initial rating in excess of 20 percent prior to December 2, 2020 for left hip strain is denied. Entitlement to an initial rating in excess of 10 percent for left hip strain from December 2, 2020 is denied. Entitlement to an initial rating in excess of 10 percent for right hip strain is denied. REMANDED Entitlement to a total rating by reason of individual unemployability due to service-connected disability (TDIU) prior to June 12, 2015 is remanded. FINDINGS OF FACT 1. Since the grant of service connection, the Veteran has had 125 degrees or more of flexion of the right knee. She has had no limitation of extension and no instability of the right knee. 2. Since the grant of service connection, the Veteran has had 125 degrees or more of flexion of the left knee. She has had no limitation of extension and no instability of the left knee. 3. The Veteran's status post left foot bunionette, is not manifested by moderately severe malunion or nonunion of the tarsal or metatarsal bones, or a moderately severe foot injury. 4. The Veteran's status post right foot bunionette, is not manifested by moderately severe malunion or nonunion of the tarsal or metatarsal bones, or a moderately severe foot injury. 5. The Veteran's asthma is not manifested by an FEV-1 of 56 to 70 percent of predicted, or an FEV-1/FVC ratio of 56 to 70 percent of predicted, or reliance upon daily use of oral or inhalational bronchodilators or inhalational anti-inflammatory medication. 6. At times the Veteran's impairment of the thoracolumbar spine is manifested by forward flexion of the thoracolumbar spine limited to 60 degrees. 7. The medical evidence indicates that prior to December 5, 2014 the Veteran had left hip abduction lost beyond 10 degrees. 8. Prior to December 2, 2020 the Veteran did not have left thigh flexion limited to 20 degrees or less. 9. From December 2, 2020 onward, the Veteran has not had left hip abduction lost beyond 10 degrees, left thigh flexion limited to 45 degrees or less, limitation of adduction preventing crossing of legs, or limitation of rotation preventing more than toe-out more than 15 degrees. 10. The Veteran has not had right hip abduction lost beyond 10 degrees, right thigh flexion limited to 45 degrees or less, limitation of adduction preventing crossing of legs, or limitation of rotation preventing more than toe-out more than 15 degrees at any time since the grant of service connection. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right knee strain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. 2. The criteria for an initial rating in excess of 10 percent for left knee strain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. 3. The criteria for a rating in excess of 10 percent for residuals of a left foot bunionette are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5280, 5283, 5284. 4. The criteria for a rating in excess of 10 percent for residuals of a right foot bunionette are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5280, 5283, 5284. 5. The criteria for an initial rating in excess of 10 percent for asthma are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6602. 6. The criteria for an initial rating of 20 percent for lumbar strain are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5237. 7. The criteria for an initial rating of 20 percent for left hip strain were met from March 19, 2014 to December 4, 2014. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5253. 8. The criteria for an initial rating in excess of 20 percent for left hip strain prior to December 2, 2020 were not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5253. 9. The criteria for an initial rating in excess of 10 percent for left hip strain from December 2, 2020 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5253. 10. The criteria for an initial rating in excess of 10 percent for right hip strain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1996 to November 2000. This matter comes before the Board of Veterans' Appeals (Board) from May 2013 and December 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These claims were remanded by the Board in July 2020 for new VA medical examinations. The Board notes that the development requested by the Board has been accomplished and that the Veteran's claims are now ready for Board review. In November 2018, the Veteran testified at a Board hearing. The transcript is of record. Increased Rating 1. Entitlement to an initial rating in excess of 10 percent for right knee strain. 2. Entitlement to an initial rating in excess of 10 percent for left knee strain. The December 2014 rating decision on appeal granted service connection for right and left knee strain disabilities. The RO assigned noncompensable ratings effective from March 19, 2014. A January 2021 rating decision assigned the Veteran 10 percent ratings, also effective from March 19, 2104. Consequently, the Board must now determine whether the Veteran is entitled to ratings in excess of 10 percent for each knee. At her November 2018 hearing the Veteran reported that her left knee had buckled on her. She said that she had pain in the knees when climbing stairs, with pain greater in the left knee. The Veteran's 10 percent ratings were assigned under Diagnostic Code 5260, the code for limitation of flexion. The RO assigned the Veteran the 10 percent ratings based on painful motion. See 38 C.F.R. § 4.59. Limitation of motion of the knee is contemplated in Diagnostic Codes 5260 and 5261. To warrant a higher rating of 20 percent for knee disability, the evidence would need to show flexion limited to 30 degrees under Diagnostic Code 5260 or extension limited to 15 degrees under Diagnostic Code 5261. 38 C.F.R. § 4.71a. Separate 10 percent ratings could be awarded with flexion limited to at least 45 degrees and extension limited to at least 10 degrees. Id. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40. The Veteran was afforded a VA examination in December 2014. The Veteran did not report that flare-ups impacted the function of the knees or lower legs. Range of motion (ROM) testing revealed flexion to 140 degrees without pain, and extension to 0 degrees without pain in both knees. There was no additional limitation of motion of either knee after repetitive use testing. The examiner noted that the Veteran did not have any functional loss or functional impairment of either knee. The Veteran had tenderness/pain to palpation of the left knee, but not the right knee. The Veteran did not have a semilunar cartilage condition. The examiner noted that the Veteran had no history of instability or subluxation of either knee. In June 2018 a private chiropractor examined the Veteran and indicated that the Veteran had full range of motion of both knees (0 to 140 degrees). On VA examination in December 2020 the Veteran reported achy pain that increased with walking and going up stairs for too long. The Veteran did not report flare-ups. Range of motion testing of both knees revealed flexion to 130 degrees with pain, and extension to 0 degrees without pain. There was no additional limitation of motion or functional loss after repetitive use testing of either knee. The examiner estimated that after repetitive use the Veteran would have flexion to 125 degrees and extension to 0 degrees. The examiner noted that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with flare-ups. There was no evidence of pain with weight bearing, no evidence of pain with non-weight bearing, and no evidence of pain on passive range of motion testing of either knee. The Veteran did not have a semilunar cartilage condition or tibial and/or fibular impairment. The examiner noted that the Veteran had no history of left knee instability or subluxation. Range of motion testing since the grant of service connection has indicated full extension of both knees. Flexion of the knees has been noted to be full (140 degrees) or, at most, limited to 125 degrees. Even considering the reported effects caused by pain and repetitive use, the evidence does not indicate that the Veteran has met the criteria for even a compensable rating for either knee based on limitation of flexion or extension. The limitation of motion as required for a higher or separate rating has not been shown. As such, higher or separate ratings are not warranted when considering Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. The Board recognizes that the criteria for Rating Musculoskeletal System was amended effective February 7, 2021. However, with regard for the criteria for rating limitation of motion of the knees (Diagnostic Codes 5260 and 5261), the criteria were not changed. 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 Codes 5235-5243). The Board has considered whether there is any other schedular basis for further granting the above claim but has found none. The Veteran testified that her left knee has given out but this is not reflected by the medical evidence. The Board notes that no subluxation or instability was found on VA examinations in December 2014 or December 2020. There are no pertinent medical records documenting any complaints of, diagnosis of or treatment for knee instability. The Board finds that the preponderance of the probative evidence demonstrates that the Veteran does not have problems with instability of either knee. As such, separate ratings under Diagnostic Code 5257 are not warranted. 38 C.F.R. § 4.71a. Ratings based on ankylosis under Diagnostic Code 5256 are also not warranted as the evidence shows motion of the knees. As the evidence does not show symptomatic removal of semilunar cartilage or dislocated semilunar cartilage, ratings under Diagnostic Codes 5258 or 5259 are not warranted. Also, the Veteran does not have impairment of the tibia or fibula or genu recurvatum; thus, ratings under Diagnostic Codes 5262 and 5263 are not appropriate. 38 C.F.R. § 4.71a. In reaching this decision, the Board has considered the Veteran's lay statements, and notes that she is competent to report her own observations with regard to the severity of her knee disabilities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). To the extent she argues her symptomatology is more severe, her statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals, including her private chiropractor, are of greater probative weight than the Veteran's more general lay assertions. For example, although the Veteran has reported instability of the left knee, examiners have consistently reported normal findings on stability testing. Thus, the Board finds that the evidence is against a finding of instability of the either knee. As the preponderance of the evidence shows that the Veteran's right and left knee strain disabilities have not met the criteria for higher ratings at any time since the grant of service connection, higher ratings are not warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). 3. Entitlement to a rating in excess of 10 percent for left foot bunionette. 4. Entitlement to a rating in excess of 10 percent for right foot bunionette. The Veteran submitted his claims for ratings in excess of 10 percent for his left and right foot bunionettes in September 2011. She reported that since having bunionette correction surgery on both feet her feet have become progressively worse. She said that she had pain and swelling of the areas of surgery on both feet after long periods of standing, She stated that her right (little) toe seems to have incurred an injury causing a lump on it and it has turned more outward due to shoe wear causing pain and swelling after prolonged standing or walking. At her November 2018 hearing the Veteran testified that her feet were horrible. She said that she could not wear shoes with heels. She said that her shoes were hurting her feet and that she was unable to run due to her bunionettes. The Veteran's residuals of left and right fifth toe disabilities have been rated by the RO under the provisions of Diagnostic Code 5280, the code for unilateral hallux valgus. The Board notes that a 10 percent rating is the highest rating available under Diagnostic Code 5280. Under Diagnostic Code 5283, a 10 percent evaluation is warranted where there is moderate disability due to the malunion or nonunion of the tarsal or metatarsal bones. Where the level of disability is moderately severe, a 20 percent rating is assignable. Where there is severe disability, a 30 percent rating is for assignment. Also, it is noted that a 40 percent rating should be assigned if there is loss of use of the foot. 38 C.F.R. § 4.71a Diagnostic Code 5283. Additionally, Diagnostic Code 5284 provides a 10 percent rating for a foot injury resulting in impairment of moderate degree, a 20 percent rating for moderately severe impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The Note to Diagnostic Code 5284 indicates that a maximum 40-percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. The words "moderate" "moderately severe," and "severe," as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. "Loss of use of a foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. October 2011 private podiatry records note that the Veteran complained of pain on the outside of her feet. She had a history of Tailor's bunionectomies of both feet. The Veteran reported tenderness and pain in the area of the surgeries ever since. She reported swelling. She stated that since her surgery her right fifth toe had started to lift up and catch on things. VA examination in November 2011 revealed tenderness of the feet. The Veteran had no painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness or instability or either foot. The Veteran's right little toe rode up on top of the fourth toe causing pain. The effect on the Veteran's occupation was pain in the feet causing her to take breaks each hour. She was contemplating further surgery for the right foot. The little toe disabilities limited her walking and standing due to pain. VA foot examination in January 2021 noted that the Veteran was status post bunionette correction of the left foot, status post hallux rigidus correction with fusion of the left foot and status post bunionette of the right foot. The Veteran reported daily foot pain and that prolonged walking or standing increased her foot pain. The Veteran was noted to have mild or moderate symptoms of hallux rigidus on the left. The Veteran's right foot disability was mild in nature, causing pain with weight bearing, standing and disturbance of locomotion. The Veteran's left foot disability was moderate in nature, causing less movement then normal of the left great toe, with no flexion. It caused pain with weight bearing, standing and disturbance of locomotion. In order for a rating in excess of 10 percent to be warranted, the Veteran's disability would have to be manifested by malunion or nonunion of the tarsal or metatarsal bones where the level of disablement is moderately severe (under Diagnostic Code 5283), or a moderately severe foot injury (under Diagnostic Code 5284). Pertinently, none of the evidence during the period under consideration shows malunion or nonunion of tarsal or metatarsal bones. Moreover, there is no indication that the Veteran's residuals of bunionectomy symptoms have been characterized as moderately severe. The January 2021 VA examination described the Veteran's right fifth toe disability as mild and the Veteran's left fifth toe disability as moderate. There are no medical and lay findings to the contrary as to whether there are moderately severe or worse symptoms. The Veteran has not been granted service connection for left foot hallux rigidus (big toe disability) so that disability will not be considered in rating the Veteran's service-connected left foot hallux valgus (little toe) disability. In this case the Veteran's left and right fifth toe status post bunionette disabilities have not met the criteria for ratings in excess of 10 percent under any appropriate diagnostic code during the appeal period. Accordingly, ratings in excess of 10 percent for left and right fifth toe bunionette disabilities are not warranted, and the benefits sought on appeal are denied. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 5. Entitlement to an initial rating in excess of 10 percent for asthma. The December 2014 rating decision on appeal granted the Veteran service connection for asthma claimed as pneumonia and residuals. The RO assigned a 10 percent rating effective from March 19, 2014. The Veteran's 10 percent rating for asthma is assigned under Diagnostic Code 6602, the code for bronchial asthma. Pursuant to Diagnostic Code 6602, a 10 percent rating is warranted if pulmonary function tests (PFTs) reveal an FEV-1 of 71 to 80 percent of predicted, or; an FEV-1/FVC ratio of 71 to 80 percent of predicted, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for an FEV-1 of 56 to 70 percent predicted, or; an FEV-1/FVC ratio of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted for an FEV-1 of 40 to 55 percent predicted, or; an FEV-1/FVC ratio of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for an FEV-1 of less than 40 percent predicted, or; an FEV-1/FVC ratio of less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. The Veteran testified at her hearing that she used a steroid inhaler twice a day for treatment of her asthma. On VA examination in December 2014, the Veteran related to the examiner that she developed exercise induced asthma while in boot camp. She reported that she used a Proventil inhaler as needed. She had also taken a Prednisone Dosepak twice over the years. The Veteran did not require the use of oral bronchodilators or antibiotics. The Veteran reported asthma attacks that required physician visits for care of exacerbations was less frequently than monthly. Pulmonary function testing (PFT) showed post-bronchodilator results of FEV-1 at 93 percent of predicted and FEV-1/FVC ratio at 99 percent of predicted. The examiner identified the FEV-1 test result as most accurately reflecting the Veteran's level of disability. The examiner noted that the Veteran's asthma condition did not impact her ability to work. When again examined by VA in December 2020, the Veteran reported that she had occasional chest tightness requiring the use of her Proventil inhaler, one to two times per week. Her asthma condition did not require the use of oral or parenteral corticosteroid medications. She said that her asthma had stayed the same since original onset. The Veteran had not had any asthma attacks with episodes of respiratory failure in the past 12 months. She had not had any physician visits for required care of exacerbations. Pulmonary function testing (PFT) showed pre-bronchodilator results of FEV-1 at 89 percent of predicted and FEV-1/FVC ratio at 85 percent of predicted. The Veteran's VA treatment records note that she had exercise induced asthma and that she used an albuterol inhaler as needed. As noted above, that Veteran's would need to show an FEV-1 of 56 to 70 percent of predicted; or an FEV-1/FVC ratio of 56 to 70 percent; or reliance upon daily use of an oral bronchodilator or inhalational anti-inflammatory medication to meet the criteria for a 30 percent disability evaluation for asthma. Such is not the case. Although the Veteran stated at her hearing that she used an asthma inhaler twice a day, the VA examination reports clearly note that the Veteran was not using medication on a daily basis. In particular, at the December 2020 VA examination the Veteran noted that she was using an inhaler once or twice a week and that her asthma severity had not changed since onset. Based on these findings, the Board concludes that a rating in excess of 10 percent is not warranted under at any time since the grant of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The probative evidence of record is against an increased evaluation. 6. Entitlement to an initial rating in excess of 10 percent for lumbar strain. The December 2014 rating decision on appeal granted the Veteran service connection for lumbar strain. The RO assigned a 10 percent rating effective from March 19, 2014. The Veteran appealed the 10 percent rating assigned. At her hearing the Veteran testified that she had back pain and that it was worse with use. The Veteran's lumbar spine strain is evaluated as 10 percent disabling under Diagnostic Code 5237. Diagnostic Code 5237 indicates that lumbosacral strain should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). As noted above, the regulations pertaining to rating the musculoskeletal system were amended, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both the old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from that date. However, the General Rating Formula has not changed during the period on appeal. Moreover, as there is no relevant evidence pertaining to the lumbar spine dated since February 7, 2021, the amended regulations do not apply in this case. Under the General Rating Formula, a 10 percent disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 135 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, when there is vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. Note (1) directs the rater to evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Disability of the spine may be evaluated under either the General Rating Formula or under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes (Diagnostic Code 5243), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The Veteran in this case is not entitled to a higher rating under Diagnostic Code 5243 because there is no evidence indicating that the Veteran has IVDS of the thoracolumbar spine. Both the December 2014 and December 2020 VA examinations specifically noted that the Veteran does not have IVDS of the thoracolumbar spine. VA examination in December 2014 revealed that the Veteran had 80 degrees of forward flexion. In June 2018 the Veteran's chiropractor noted that the Veteran had 70 degrees of thoracolumbar flexion. VA examination in December 2020 revealed the Veteran to have 80 degrees or more of forward flexion. The Board finds that the Veteran is entitled to an increased rating of 20 percent for her lumbar strain disability. Although the December 2014 VA examiner noted that initial measurement of thoracolumbar range of flexion was 80 degrees, in his remarks at the end of the examination report, the examiner noted that with pain on use, or during flare-ups, the Veteran would lose 30 degrees of flexion. This indicates that at such times the Veteran would have 60 degrees or less of forward flexion. When forward flexion is limited to 60 degrees or less, the criteria for a 20 percent rating are met. Accordingly, the Veteran is entitled to a 20 percent rating for her lumbar strain disability since the grant of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is not entitled to a rating in excess of 20 percent for her lumbar strain disability as none of the medical evidence, including the December 2014 VA examination report, the December 2020 VA examination report, and the June 2018 private chiropractor report, have indicated that the Veteran has limitation of flexion of the thoracolumbar spine to 30 degrees or less, even during times when symptoms are most prevalent ("flare-ups") due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Additionally, the Veteran does not have ankylosis of the thoracolumbar spine and the VA examiners have stated that the Veteran does not have IVDS of the thoracolumbar spine. Accordingly, none of the criteria for a rating in excess of 20 percent have been met for the Veteran's lumber strain disability at any time since the grant of service connection. 7. Entitlement to an initial rating in excess of 10 percent for left hip strain prior to December 5, 2014. The December 2014 rating decision on appeal granted the Veteran service connection for a left hip disability. The RO assigned a 10 percent rating, effective from March 19, 2014, based on painful motion of the left hip. The Veteran appealed. The Board notes that in a January 2021 rating decision the RO granted the Veteran an increased rating of 20 percent for her left disability for an interval of time, from December 5, 2014 to December 2, 2020. Consequently, the Board must adjudicate three separate issues, entitlement to a rating in excess of 10 percent prior to December 5, 2014, entitlement to a rating in excess of 20 percent from December 5, 2014 to December 2, 2020, and entitlement to a rating in excess of 10 percent subsequent to December 2, 2020. Code 5251 governs limitation of extension of the thigh, and awards a 10 percent rating, the maximum under this code, for extension limited to 5 degrees. Diagnostic Code 5252 governs limitation of flexion of the thigh and awards a 10 percent rating for flexion that is limited to 45 degrees. A 20 percent disability rating is assigned where flexion is limited to 30 degrees; a 30 percent disability rating is assigned where flexion is limited to 20 degrees; and a 40 percent disability rating is assigned where flexion is limited to 10 degrees. Diagnostic Code 5253 governs impairment of the thigh and awards a 10 percent rating for limitation of rotation of, cannot toe-out more than 15 degrees, the affected leg, or when adduction is limited such that legs cannot be crossed. A 20 percent rating is assigned for limitation of abduction of, motion lost beyond 10 degrees. The Board notes that although the regulations pertaining to rating the musculoskeletal system were amended, effective February 7, 2021, these amendments did not change Diagnostic Codes 5251, 5252 or 5253, the codes pertinent to rating the Veteran's left and right hip strain disabilities. From March 19, 2014, the date of service connection, to December 5, 2014 the Veteran was assigned a 10 percent rating under Diagnostic Code 5253. However, the Board finds that the Veteran is entitled to a 20 percent rating during that time period. The only medical evidence of record relevant to the Veteran's left hip, dated between March 19, 2014 and December 5, 2014, is the December 5, 2014 VA examination report. On the examination report the VA examiner indicated that the Veteran had left thigh limitation of abduction, motion lost beyond 10 degrees, the criteria for a 20 percent rating under Diagnostic Code 5253. Finding all doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a 20 percent rating for his left hip disability from March 19, 2014 to December 5, 2014. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. . Entitlement to an initial rating in excess of 20 percent for left hip strain prior to December 2, 2020 (to include from March 19, 2014 to December 5, 2014). In January 2019 the Veteran's attorney wrote to the Board arguing that the Veteran met the criteria for a 20 percent rating for her left hip disability. The Board notes that although the RO has since granted the Veteran a 20 percent rating prior to December 2, 2020, the Board must now consider whether the Veteran is entitled to a rating in excess of 20 percent prior to that date. At his November 2018 hearing the Veteran testified that he had full movement of the left hip but that he had pain with some movements, especially walking up and down stairs. He said that he could only stand for 15 minutes at the most as this would cause pain in his left hip. He reported that he could squat and that there could be pain, depending on how far he squatted. The Board notes that the Veteran's 20 percent rating for left hip strain (prior to December 2, 2020) under Diagnostic Code 5253 is the maximum rating available under that diagnostic code. Accordingly, the Veteran was not entitled to a higher rating under Diagnostic Code 5253. The Board further notes that prior to December 2, 2020 the Veteran's left hip strain disability did not meet the criteria for even a compensable rating under any other appropriate diagnostic code. The Veteran was not entitled to a separate compensable rating under Diagnostic Code 5251 as she did not have left hip extension limited to 5 degrees, the criteria for a 10 percent rating. The March 2014 VA examiner specifically noted that the Veteran's left hip extension was greater than 5 degrees. The Veteran was also not entitled to a separate compensable rating under Diagnostic Code 5252 as she did not have left hip flexion limited to 45 degrees or less, the criteria for a 10 percent rating. The March 2014 VA range of motion tests showed that the Veteran had 110 degrees or more of left hip flexion. Furthermore, a June 2018 private medical record noted that the Veteran had 70 degrees of left hip flexion. The Board further notes that the December 2014 VA examiner stated that there was no objective evidence of painful motion of the left hip on any of the motion testing. He further stated that there were no contributing factors of weakness, fatigability, incoordination or pain during flare-ups or repeated use over time that could additionally limit the functional ability of the hip joint. Consequently, even with consideration of DeLuca factors, the Veteran did not meet the criteria for a rating in excess of 20 percent, or the criteria for a separate compensable rating, for her left hip disability at any time prior to December 2, 2020. Accordingly, an initial rating in excess of 20 percent prior to December 2, 2020 for left hip strain is denied. 9. Entitlement to an initial rating in excess of 10 percent for left hip strain from December 2, 2020. As noted above, the January 2021 rating decision continued the Veteran's 10 percent rating for her left hip disability from December 2, 2020 onward. As explained below, from December 2, 2020 the Veteran has not met the criteria for a rating in excess of 10 percent for her left hip strain and has not met the criteria for a separate compensable rating under any appropriate diagnostic code. The Veteran's current 10 percent rating for her left hip disability was assigned under Diagnostic Code 5253. The December 2, 2020 VA examination showed that the Veteran had 25 or more degrees of left hip abduction. Accordingly, she is not entitled to a 20 percent rating under Diagnostic Code 5253, which requires abduction limited to 10 degrees or less. The Veteran is not entitled to a separate compensable rating under Diagnostic Code 5252 as she does not have left hip flexion limited to 45 degrees or less. The December 2, 2020 VA examination showed that the Veteran had 110 degrees or more of left hip flexion. The December 2, 2020 examination further noted that there was no evidence of pain with weight bearing and no objective evidence of crepitus. The examiner noted that there was no objective evidence of pain on non-weightbearing, no objective evidence of pain on passive range of motion testing and that passive range of motion was same as active range of motion. The examiner indicated that the left hip resulted in increased pain with prolonged walking, sitting, standing and stairclimbing. The Board notes that the examination report indicated that the ranges of motion reported above took into consideration pain, weakness, fatigability and incoordination with repeated use over a period of time. Consequently, even with consideration of DeLuca factors, the Veteran did not meet the criteria for a rating in excess of 10 percent or separate compensable ratings. In summary, the evidence of record shows that the Veteran has not met the criteria for a rating in excess of 10 percent for her left hip disability since December 2, 2020, and she has not met the criteria for a separate compensable rating under any other appropriate diagnostic code. Accordingly, an initial rating in excess of 10 percent from December 2, 2020 for left hip strain is not warranted. See Fenderson. 10. Entitlement to an initial rating in excess of 10 percent for right hip strain. The December 2014 rating decision on appeal granted the Veteran service connection for right hip strain. The Veteran has been assigned a 10 percent rating for her right hip strain effective from March 19, 2014, the date she was granted service connection. The Veteran seeks a rating in excess of 10 percent for her right hip strain. VA examination in December 2014 showed that the Veteran had right hip flexion of 120 degrees without pain, including after repetitive testing. She had adduction to 25 degrees and abduction to 45 degrees. Right hip internal rotation was to 40 degrees and external rotation was to 60 degrees. There was no objective evidence of pain with any of these movements. In June 2018, a private chiropractor noted that the Veteran had 105 degrees of right hip flexion, 45 degrees of abduction, 25 degrees of adduction, 35 degrees of internal rotation, and 45 degrees of external rotation. When right hip range of motion was tested on VA examination in December 2020 the most limited range of motion was noted for repeated use over time. The Veteran's right hip range of motion, considering repeated use over time, was noted to be right hip flexion to 110 degrees and extension to 25 degrees. Adduction was noted to be to 30 degrees and abduction to 20 degrees. Right hip internal rotation was to be to 35 degrees and external rotation was to 55 degrees. Right hip , adduction was not limited such that the Veteran could not cross her legs, The Veteran's abnormal right hip range of motion did not itself contribute to functional loss. There was no evidence of pain with weight bearing. There was no objective evidence of pain with non-weight bearing. The Veteran's current 10 percent rating for her right hip disability has been assigned under Diagnostic Code 5253. The VA examinations showed that the Veteran had 20 or more degrees of right hip abduction and the June 2018 chiropractor showed 45 degrees of abduction. Accordingly, she is not entitled to a 20 percent rating under Diagnostic Code 5253 which requires abduction limited to 10 degrees or less. The Veteran is not entitled to a separate compensable rating under Diagnostic Code 5251 as she does not have left hip extension limited to 5 degrees. The December 2014 VA examiner noted that extension was greater than 5 degrees and the December 2020 VA examination showed that the Veteran had 25 degrees of left hip extension. The June 2018 chiropractor did not measure the Veteran's left hip extension. The Veteran is not entitled to a separate compensable rating under Diagnostic Code 5252 as she does not have right hip flexion limited to 45 degrees or less. The VA examinations showed that the Veteran had 110 degrees or more of right hip flexion and the June 2018 chiropractor noted that the Veteran had 105 degrees of right hip flexion. The Board notes that the December 2020 examination report indicated that the ranges of motion reported above took into consideration pain, weakness, fatigability and incoordination with repeated use over a period of time. Consequently, even with consideration of DeLuca factors, the Veteran did not meet the criteria for a higher rating or separate compensable ratings. As the evidence of record shows that the Veteran does not meet the criteria for a rating in excess of 10 percent for her right hip disability under her current diagnostic code, 5253 (limitation of abduction or adduction), or that she meets the criteria for a separate compensable rating under any other appropriate diagnostic codes (limitation of flexion or extension) the preponderance of the evidence is against the Veteran's appeal and it must be denied. See Fenderson. REASONS FOR REMAND 1. Entitlement to TDIU prior to June 12, 2015. The Board remanded the Veteran's claim for TDIU in its July 2020 decision as it was inextricably intertwined with the remanded increased rating appeals. Subsequently the RO granted TDIU in its January 2021 rating decision. However, TDIU was only granted effective June 12, 2015, and the Veteran's increased rating claims have been pending since March 19, 2014. Accordingly, the issue of entitlement to TDIU from March 19, 2014 to June 11, 2015 is still pending. Due to the Board's grant of an increased rating of 20 percent for lumbar strain, and an increased rating of 20 percent for left hip strain prior to December 5, 2014, the Board must remand the TDIU claim to the agency of original jurisdiction (AOJ) for consideration of these increased ratings in determining whether the Veteran is entitled to TDIU from March 19, 2014 to June 11, 2015. The matters are REMANDED for the following action: After assigning the Veteran the increased ratings granted by the Board's decision above, reevaluate the Veteran's claim for TDIU from March 19, 2014 to June 11, 2015. If the benefit sought on appeal is not granted issue the Veteran a supplemental statement of the case and return the appeal to the Board if appropriate. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.