Citation Nr: 21032126 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 20-18 315 DATE: May 25, 2021 ORDER An initial compensable disability rating for left hip strain with limitation of flexion is denied. An initial disability rating in excess of 10 percent prior to January 7, 2021, for left hip strain limitation of extension is denied. Restoration of a 10 percent disability rating for left hip strain based on limitation of extension, effective January 7, 2021, is granted, subject to the laws and regulations governing the payment of monetary benefits. An initial compensable disability rating prior to January 7, 2021, and in excess of 10 percent thereafter for left hip abduction, adduction, and rotation is denied. An increased disability rating in excess of 10 percent for right knee patellofemoral syndrome with arthritis (right knee disability) is denied. An initial compensable disability rating for right knee disability based on limitation of extension is denied. An initial disability rating in excess of 10 percent for right knee disability based on instability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (hereinafter, TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is remanded. FINDINGS OF FACT 1. For the entire pendency of the appeal, the Veteran's left hip strain did not result in flexion limited to 45 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. 2. For the entire pendency of the appeal, the Veteran's left hip strain exhibited loss of function due to painful motion and failed to demonstrate a sustained improvement under ordinary conditions of life and work but did not more nearly approximate extension limited to 5 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. 3. Prior to January 7, 2021, the Veteran's left hip strain did not result in limitation of rotation such that he could not toe-out more than 15 degrees or limitation of adduction such that he could not cross his legs, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. 4. As of January 7, 2021, the Veteran's left hip strain was manifested by limitation of adduction of the thigh such that the Veteran was unable to cross his legs, but there was no limitation of abduction such that motion was lost beyond 10 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. 5. For the entire pendency of the appeal, the Veteran's right knee was not manifested by flexion limited to 30 degrees or less or extension limited to 10 degrees or more, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, dislocation or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. 6. The Veteran's right knee disability was manifested by lateral instability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for limitation of flexion of the left hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5252. 2. Prior to January 7, 2021, the criteria for a rating in excess of 10 percent for left hip strain limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5251. 3. The reduction of the initial rating for left hip strain based on limitation of extension from 10 percent to 0 percent was improper, and restoration of the 10 percent rating, effective January 7, 2021, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1-4.7, 4.10, 4.13, 4.40, 4.45, 4.59, 4.71a, DC 5251. 4. Prior to January 7, 2021, the criteria for an initial compensable disability rating for the left hip strain on the basis of impaired adduction and impaired rotation of the left thigh, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5253. 5. From January 7, 2021, the criteria for a disability rating in excess of 10 percent for the left hip strain on the basis of impaired adduction and impaired rotation of the left thigh, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5253. 6. The criteria for an initial disability rating in excess of 10 percent for right knee patellofemoral syndrome with arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes (DC) 5010-5260. 7. The criteria for an initial compensable disability rating for right knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes (DC) 5010-5261. 8. The criteria for an initial disability rating in excess of 10 percent for right knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DC 5257 (2020 and 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from April 1970 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In July 2020, the Board remanded the claims for an initial compensable disability rating for abduction, adduction, rotation, left hip; an initial compensable disability rating for limitation of flexion, left hip; and a disability rating in excess of 10 percent for patellofemoral syndrome, right knee for further development. In March 2021, the Veteran was awarded a 10 percent rating for his service-connected limitation of abduction, adduction, rotation, and left hip, effective January 7, 2021, creating a staged rating. Additionally, service connection was granted for right knee, instability with arthritis with an evaluation of 10 percent effective January 7, 2021. Service connection for right knee, limitation of motion, extension, with arthritis was granted with a noncompensable disability rating effective January 7, 2021. The evaluation of a left hip strain, limitation of extension, was decreased to noncompensable effective January 7, 2021, creating a staged rating. The Veteran has not indicated that he is satisfied with the higher ratings that have been granted; therefore, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). Finally, the 2018 and 2021 applicable examinations for the Veteran's left hip and right knee disability reflect that his disabilities impact his ability to perform any type of occupational tasks. Thus, the issue of entitlement to a TDIU is raised as part and parcel of the increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 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). The United States Court of Appeals for Veterans Claims (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." Correia v. McDonald, 28 Vet. App. 158 (2016). Furthermore, 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 criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344. The Court stated that this regulation applied to ratings that had been continued for long periods of time at the same level (five years or more). Brown v. Brown, 5 Vet. App. 413 (1993). In the present case, the 10 percent rating was in effect from October 26, 2018, to January 7, 2021. As the rating was not in effect for more than five years, the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations do not apply. 38 C.F.R. § 3.344(c). However, the Court noted in Brown that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Id. As noted above, in considering the propriety of a reduction, the Board must focus on the evidence of record available to the Agency of Original Jurisdiction at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). During the pendency of the appeal, the rating criteria for evaluating musculo-skeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 83 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, applying the criteria that is more favorable to the Veteran. 1. Entitlement to increased initial disability ratings for left hip strain, to include propriety of the reduction of the rating based on limitation of extension from 10 percent to 0 percent, effective January 7, 2021. The Veteran contends that the symptoms of his left hip strain warrant increased disability ratings. The Veteran's service-connected left hip strain for limitation of flexion is rated as noncompensable under DC 5252; limitation of extension is rated as 10 percent disabling prior to January 7, 2021 and noncompensable thereafter under DC 5251; and limitation of abduction, adduction, and rotation is rated as noncompensable prior to January 7, 2021, and 10 percent disabling thereafter under DC 5253. DC 5251 provides a 10 percent rating for limitation of extension of the thigh to 5 degrees. This is the only compensable rating under 38 C.F.R. § 4.71a, DC 5251. DC 5252 provides a 10 percent disability rating for flexion of the thigh that is limited to 45 degrees; a 20 percent rating for flexion of the thigh that is limited to 30 degrees; a 30 percent rating for flexion of the thigh that is limited to 20 degrees; and a 40 percent rating for flexion of the thigh that is limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. DC 5253 provides rating for impairment of the thigh based on limitation of abduction, limitation of adduction, or limitation of rotation. A 10 percent rating will be assigned for limitation of rotation where the individual cannot toe-out more than 15 degrees on the affected leg, or for limitation of adduction where the individual cannot cross the legs. A 20 percent rating will be assigned for limitation of abduction where there is motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. The evidence of record in this case does not reasonably raise the possible applicability of the additional hip DCs under 5250 (ankylosis), 5254 (flail joint), or 5255 (femur, impairment). 38 C.F.R. § 4.71a, DCs 5250, 5254, 5255. Further discussion of these hip Diagnostic Codes, therefore, is not warranted. In an October 2018 statement, the Veteran reported that his left hip symptoms consisted of painful motion, limited movement, weakness, muscle fatigue, cracking and popping, and numbness. He reported pain in his left hip with any high impact activity, prolonged sitting, walking more than short distances, crossing his legs, squatting, climbing stairs, side to side movements, prolonged standing, or any other type of everyday motion that involves using his left hip. He reported that he is unable to walk for any length of time around in a store, do yard work, go shopping, take long car rides, or go to theme parks. He reported he used a cane to stabilize herself when walking. The November 2018 Disability Benefits Questionnaire (DBQ) report reflects that the Veteran reported left hip pain, throbbing, tingling, numbness, and stiffness that has gotten worse over time. He did not report any flare-ups. He reported constant hip pain and the inability to walk, run, or climb stairs. On examination, initial range of motion (ROM) testing of the left hip revealed flexion to 100 degrees, extension to 25 degrees, abduction to 40 degrees, adduction to 20 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. Adduction is not limited such that the Veteran cannot cross his legs. Range of motion itself contributed to functional loss described as limited ROM and the inability to bend over. Pain was noted on examination and caused functional loss on flexion, extension, abduction, adduction, external and internal rotation. There was no objective evidence of localized tenderness or pain on palpation of the joint. There was evidence of pain with weight bearing and evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Post-test adduction was not limited such that the Veteran cannot cross his legs. He did not have muscle atrophy and ankylosis. There was no malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The Veteran used a cane as an assistive device for stability of his left hip strain. The March 2021 DBQ report reflects that the Veteran reported worsening symptoms of hip pain, stiffness, and weakness. Additionally, he reported throbbing, tingling, and numbness. He did not report any flare-ups. He reported functional loss/impairment described as difficulty walking, standing, stooping, and stair climbing. On examination, initial ROM testing revealed flexion to 100 degrees, extension to 20 degrees, abduction to 35 degrees, adduction to 20 degrees, external rotation to 50 degrees, and internal rotations to 30 degrees. The Veteran's adduction was limited such that the Veteran cannot cross his legs. Range of motion itself contributed to functional loss described as limited ROM and inability to bend over. Pain was noted on flexion, extension, abduction, adduction, and external and internal rotation that caused functional loss. There was evidence of pain with weight-bearing. There was objective evidence of pain laterally described as moderate and directly related to the left hip strain. There was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. Pain, weakness, and lack of endurance significantly limit functional ability with repeated use over a period of time. This was described in terms of ROM as flexion to 90 degrees, extension to 15 degrees, abduction to 30 degrees, and adduction to 15 degrees. Post-test adduction was limited such that the Veteran cannot cross his legs. External rotation was to 40 degrees and internal rotation was to 30 degrees. The examiner noted that the Veteran's limitation of motion of the left hip creates weakened movement that will interfere with sitting and standing. He did not have muscle atrophy and ankylosis. There was no malunion or union of the femur, flail hip joint, or leg length discrepancy. He used a cane constantly for the stability of his left hip strain. VA treatment records reflect that the Veteran complained of severe left hip pain, swelling, weakness, numbness, and poor strength and balance. As to the Veteran's left hip limitation in flexion, the Board finds that the preponderance of the evidence is against a compensable disability rating. The Board acknowledges the Veteran's reports of symptoms and that there was functional loss described as less movement than normal, pain on movement, interference with sitting, standing, stair climbing, stooping, high impact activities, and weight-bearing due to pain. The Veteran's flexion of the left hip was limited to, at worst, 100 degrees, however, and he never complained of flare-ups. The Veteran experienced pain on flexion during the November 2018 and March 2021 examinations. However, separate 10 percent ratings based on pain of the same joint would violate the rule against pyramiding. 38 C.F.R. § 4.14. In this regard, the Veteran is in receipt of a 10 percent disability rating for limitation of extension of the left hip throughout the pendency of the appeal pursuant to this decision, as described in greater detail below. As to the Veteran's left hip limitation in extension, the preponderance of the evidence is against a disability rating in excess of 10 percent prior to January 7, 2021. As noted above, a 10 percent rating is the maximum rating assignable for limitation of extension to 5 degrees under DC 5251. 38 C.F.R. § 4.71a, DC 5251. There is no legal basis upon which to award a higher schedular disability rating. Neither the Veteran, nor his representative have submitted evidence or argument with respect to this issue or indicating that the criteria for rating the left hip do not contemplate his symptoms. In addition, the Veteran is already in receipt of separate ratings for left hip flexion under DC 5252 and impairment of the left thigh under DC 5253. However, the Board finds that restoration of the 10 percent rating is warranted for left hip limitation of extension based on painful motion, effective January 7, 2021. Notably, the RO granted this 10 percent initially based on painful motion of the hip. The March 2021 examination continued to reflect pain on motion on extension and, therefore, the Board finds the evidence does not demonstrate actual improvement. Thus, while the March 2021 examination does not show limitation of extension to 5 degrees, a compensable rating is warranted for joint pain pursuant to 38 C.F.R. § 4.59. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015). Finally, as to the Veteran's claim for a compensable disability rating prior to January 7, 2021 for limitation of abduction, adduction, rotation of the left hip, while the November 2018 examination reflects painful motion, the evidence does not show that there was limitation of rotation such that the Veteran could not toe-out more than 15 degrees. Additionally, the evidence does not show that there was limitation of adduction such that the Veteran could not cross his legs. Thus, an initial compensable disability rating prior to January 2, 2021, for limitation of abduction, adduction, and rotation of the left hip is not warranted. As of January 7, 2021, a disability rating in excess of 10 percent for limitation of abduction, adduction, rotation of the left hip is not warranted. The March 2021 examination results reflect that the Veteran's adduction was limited such that the Veteran could not cross his legs. Limitation of abduction of motion was not lost beyond 10 degrees in the examination and, thus, a disability rating of 20 percent is not warranted. With respect to the above evidence, the examination reports are adequate to decide the claim. The 2018 and 2021 VA examination reports in particular addressed pain on active and passive motion, in weight bearing and nonweight-bearing, and with range of motion in both hips. Correia v. McDonald, 25 Vet. App. 158 (2016). For the foregoing reasons, the preponderance of the evidence is against the claim for an initial compensable disability rating for left hip limitation of flexion, a rating in excess of 10 percent for limitation of extension, and an initial compensable rating prior to January 7, 2021, for limitation of abduction, adduction, and rotation and 10 percent thereafter. However, restoration of the 10 percent disability rating assigned based on limitation of extension of the left hip is warranted, effective January 7, 2021. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to increased disability ratings for right knee disability. The Veteran contends that the symptoms of his right knee disability warrant increased disability ratings. The appeal period for the Veteran's increased rating claim for his right knee disability stems from his increased rating claim, which was received on October 26, 2018, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran's service-connected right knee disability is rated as 10 percent disabling under Diagnostic Code 5003-5260. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code for the right knee reflects that patellofemoral syndrome with arthritis under Diagnostic Code 5003 is the service-connected disorder and that limitation of flexion rated under Diagnostic Code 5260 is the residual condition. Additionally, his right knee instability is rated as 10 percent disabling under Diagnostic Code 5003-5257 and his right knee limitation of extension is rated as noncompensable under Diagnostic code 5003-5261. Under Diagnostic Code 5003, degenerative arthritis, when 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 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, Diagnostic Code 5003. For purpose of rating a disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, (limitation of flexion), a 10 percent disability rating is warranted for flexion limited to 45 degrees. Limitation of flexion to 30 degrees warrants a 20 percent disability rating. A 30 percent disability rating is assigned for flexion limited to 15 degrees or less. In order for the Veteran to receive a 10 percent rating under Diagnostic Code 5261 (limitation of leg extension), the evidence must show that his knee disability is manifested by leg extension limited to 10 degrees. A 20 percent rating under Diagnostic Code 5261 is warranted if the evidence shows leg extension limited to 15 degrees. The Veteran is entitled to a 30 percent disability rating for leg extension limited to 20 degrees. A veteran who has both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. See VAOPGCPREC 9-04 (September 17, 2004). The November 2018 DBQ report reflects that the Veteran reported pain, collapses, stiffness, and throbbing that has worsened over time. He did not report any flare-ups. He reported functional loss/impairment described as the inability to stand, stoop, or sit for long periods of time. On examination, initial ROM revealed flexion to 95 degrees and extension to 0 degrees. Range of motion itself contributed to a functional loss described as inability to bend, stoop, or bend over to tie shoes. Range of motion exhibited pain on flexion and extension. There was no objective evidence of localized tenderness or pain on palpation. There was pain with weight-bearing and objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no muscle atrophy and no ankylosis. There was no joint instability. He had recurrent patellar dislocation described as moderate. He did not have a meniscal condition. He used a brace occasionally and a cane regularly for his right knee. A March 2021 DBQ report reflects that the Veteran reported popping and clicking in his knee all the time, pain, throbbing, and stiffness. He did not report any flare-ups. He reported functional loss/impairment described as difficulty walking, standing, stooping, and stair climbing. On examination, initial ROM testing revealed flexion from 5 to 95 degrees and extension from 95 to 5 degrees. Range of motion itself contributed to functional loss described as the inability to bend, stoop, or bend over to tie shoes. Pain was noted on examination and caused functional loss on flexion and extension. There was evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on the patella described as severe and directly related to the right knee disability. There was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with no additional loss of function or ROM. Pain, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time. The examiner described this in terms of ROM as flexion to 90 degrees and extension to 5 degrees. There was no muscle trophy and no ankylosis. There was no recurrent subluxation, history of lateral instability, or recurrent effusion. There was lateral instability. He had recurrent patellar dislocation described as moderate. He did not have a meniscal condition. He used a brace and cane as an assistive device. He had mild degenerative osteoarthritic change seen on X-ray in October 2006. VA treatment records reflect complaint of pain and swelling. The Board finds that the preponderance of the evidence is against ratings in excess of those assigned for his right knee disability based on limitation of flexion and limitation of extension. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss described as the inability to bend, stoop, climb stairs, or bend over. However, during the appeal period, the Veteran's flexion of the right knee was limited to, at most, 85 degrees, with extension from 5 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. As noted above, the 10 percent rating was assigned based on painful motion. This is appropriate, as a compensable rating is warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities rated under diagnostic codes containing a compensable rating, and the criteria for such a rating can be satisfied with lay and other non-medical evidence. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015). However, the evidence does not reflect additional loss of motion warranting a higher rating under DC 5260, even considering the factors in 38 C.F.R. §§ 4.40 and 4.45 including flare-ups. Given the range of motion findings and the lack of significant functional loss, frequency, and severity with flareups, or other motion including repetitive motion, it cannot be said that range of motion would more nearly approximate flexion limited to 30 degrees as required for a 20 percent rating under DC 5260. For similar reasons, there is no basis for a separate rating based on limitation of extension, which was normal throughout the appeal period. VAOPGCPREC 9-2004 (2004) (separate ratings may be assigned under DCs 5260 and 5261, where there is compensable limitation of flexion and extension). The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The March 2021 DBQ report reflects that the Veteran had lateral joint instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of the knee. Prior to February 7, 2021, under this diagnostic code, slight recurrent subluxation or lateral instability warrants a 10 percent disability rating. A 20 percent disability rating is warranted for moderate recurrent subluxation or lateral instability. Severe recurrent subluxation or lateral instability warrants a 30 percent disability rating. The Court has held that nothing in Diagnostic Code 5257 provides that objective medical evidence is required or is to be favored over lay evidence in determining whether to assign a rating for lateral instability of the knee. English v. Wilkie, 30 Vet. App. 347, 349 (2018). The preponderance of the evidence does not support a separate rating higher than 10 percent. The medical evidence reflects slight lateral instability of the right knee and the Board finds there is no evidence, to include the Veteran's statements, that reflects disability more nearly approximate to moderate instability. Diagnostic Code 5257 was amended, effective February 7, 2021. Under the amended criteria, Diagnostic Code 5257 evaluates other impairment of the knee of recurrent subluxation or instability or recurrent patellar instability. With respect to recurrent subluxation or instability, a 20 percent disability rating is warranted for the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical provider prescribes a brace and/or assistive decide (e.g., cane(s), crutch(es), walker) for ambulation or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent disability rating is warranted for Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Regarding recurrent patellar instability, a 20 percent disability rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent disability rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. The medical evidence of record does not reflect that the Veteran had a meniscal disability. Additionally, while the medical evidence shows the Veteran has recurrent patellar dislocation described as moderate, there was never any surgical intervention and the medical evidence does not reflect that the Veteran was prescribed a brace or cane for his instability. He reported that he used a brace and cane for both his left hip and right knee disability; however, there is no documentation that this was prescribed by a physician. Accordingly, the Veteran is not entitled to a disability rating in excess of 10 percent for instability of the right knee under the amended criteria. Disabilities of the knee and leg may also be evaluated under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263. However, the medical and lay evidence does not show that the Veteran's right knee disability was manifested by ankylosis, dislocation of the semi-lunar cartilage, symptomatic removal of semilunar cartilage, or any impairment of the tibia and fibula, or genu recurvatum at any time during the appeal period. Thus, Diagnostic Codes 5256, 5258, 5259, 5262 and 5263 are not applicable in this case under the prior criteria or as of February 7, 2021 under the amended criteria. For the foregoing reasons, a disability rating in excess of 10 percent is not warranted for right knee patellofemoral syndrome with arthritis or right knee instability. Additionally, a compensable disability rating is not warranted for right knee limitation of extension with arthritis. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a TDIU. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, due to his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The Veteran is service-connected for the following disabilities: chronic obstructive pulmonary disease, evaluated as 10 percent disabling from May 31, 2005; patellofemoral syndrome with arthritis, right knee, evaluated as 10 percent disabling from May 31, 2005; right knee, instability with arthritis evaluated as 10 percent disabling from January 7, 2021; limitation of abduction, adduction, rotation, left hip evaluated as noncompensably disabling prior to January 7, 2021, and 10 percent disabling thereafter; limitation of flexion, left hip evaluated as noncompensably disabling from October 26, 2018; erectile dysfunction evaluated as noncompensably disabling from January 18, 2020; right knee limitation of motion extension evaluated as noncompensably disabling from January 8, 2021; and left hip strain, limitation of extension evaluated as 10 percent disabling. Thus, the Veteran's combined disability rating does not satisfy the threshold minimum threshold for consideration of a TDIU pursuant to 38 C.F.R. § 4.16(a) at any time during the period on appeal. Even where a Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), however, VA must consider whether a TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). In this regard, the Board cannot consider entitlement to a TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) ("The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered to the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided"), the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520, 2020 U.S. App. Vet. Claims LEXIS 662 (Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op. at 2 (Greenberg, J., dissenting) ("What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?"). As Bowling remains good law, therefore, the Board cannot decide entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) in the first instance. In determining whether remand is warranted, the initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). As noted above, the DBQ reports reflect that the Veteran would have difficulty walking, running, stair climbing, or stooping for any period of time, thereby impacting his ability to perform any type of occupational task. The 2021 DBQ report for the hip and knee reflects that the Veteran's employment history includes work as a field engineer, truck driver, and gift store operator. Consequently, a remand to develop the claim and for referral to the Director of Compensation for consideration of a TDIU on an extraschedular basis is warranted. The matter is REMANDED for the following actions: (Continued on the next page) 1. Send the Veteran the formal TDIU application form (VA Form 21-8940) and request that he complete the form in its entirety. 2. Refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) to the Director of Compensation Service. M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.