Citation Nr: 21041125 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 11-31 446 DATE: July 8, 2021 ORDER Entitlement to an initial compensable rating for left thigh impairment for the period prior to December 21, 2015 is denied. Entitlement to an initial rating in excess of 10 percent for left thigh impairment for the period from December 21, 2015 to April 7, 2021 is denied. Entitlement to an initial rating in excess of 20 percent for left thigh impairment for the period since April 8, 2021 is denied. Entitlement to an initial rating in excess of 10 percent for left hip degenerative joint disease is denied. Entitlement to an initial compensable rating for left hip limitation of extension is denied. FINDINGS OF FACT 1. The Veteran's degenerative joint disease of the left hip was manifest by left thigh impairment that did not prevent the Veteran from crossing his legs or limit rotation to 15 degrees or less prior to December 21, 2015, or limit abduction to 10 degrees or less prior to April 8, 2021. 2. Limitation of flexion of the left hip was not limited to 30 degrees or less at any time during the period on appeal. 3. Limitation of extension of the left hip was not limited to 5 degrees at any time during the period on appeal. 4. The Veteran's left hip degenerative joint disease was not manifest by ankylosis, flail hip, or malunion or nonunion of the femur. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for left thigh impairment for the period prior to December 21, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5253. 2. The criteria for entitlement to an initial rating in excess of 10 percent for the period from December 21, 2015 to April 7, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5253. 3. The criteria for entitlement to an initial rating in excess of 20 percent for the period since April 8, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5253. 4. The criteria for entitlement to an initial rating in excess of 10 percent for left hip degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5252. 5. The criteria for entitlement to an initial compensable rating for left hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1974 to August 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision, in which the agency of original jurisdiction (AOJ) awarded service connection for left hip degenerative joint disease and assigned an initial 10 percent disability rating, from January 4, 2008. The Veteran testified before a Decision Review Officer (DRO) at an August 2011 hearing, and a transcript of the hearing is associated with his claims file. In March 2017 and March 2018, the Board remanded the issue of entitlement to a higher initial rating for left hip degenerative joint disease for further development. In June 2019, the AOJ awarded a separate noncompensable disability rating for left hip limitation of extension, from January 4, 2008. The AOJ also awarded a separate noncompensable disability rating, from January 4, 2008 through December 20, 2015 and a 10 percent disability rating, from December 21, 2015, for left hip thigh impairment. In an August 2019 decision, the Board denied entitlement to higher initial ratings for left hip degenerative joint disease, left hip limitation of extension, and left hip thigh impairment. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court set aside the Board's August 2019 decision, in part, and remanded to the Board the issues of entitlement to higher initial ratings for left hip degenerative joint disease, left hip limitation of extension, and left thigh impairment for readjudication in compliance with directives specified in a September 2020 Joint Motion for Partial Remand (JMPR) filed by counsel for the Veteran and VA. In March 2021, the Board remanded the case for additional development. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In an April 2021 rating decision, the AOJ increased the evaluation of the Veteran's left thigh impairment from 10 percent to 20 percent, effective April 8, 2021. The Board also notes that the Veteran has been granted entitlement to a total disability rating based on individual unemployability (TDIU) from September 1, 2008. The Veteran has not appealed the effective date of the award. Higher Initial Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.§ 1155; 38 C.F.R., Part 4. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 1. Entitlement to an initial compensable rating for left thigh impairment, a rating in excess of 10 percent after December 21, 2015, and a rating in excess of 20 percent after April 8, 2021 is denied. The Veteran seeks a higher rating for his service-connected degenerative joint disease of the left hip. The Veteran has complained of constant left hip pain, with difficulty with prolonged walking, standing, and sitting. The Veteran's left hip degenerative joint disease is assigned separate ratings under Diagnostic Codes 5003-5251, 5003-5252, and 5003-5253 for degenerative arthritis rated based on limitation of extension, limitation of flexion, and impairment of the thigh. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Codes 5003-5251, 5003-5252, and 5003-5253 were not changed. Diagnostic Code 5003 provides that degenerative arthritis 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. According to Diagnostic Code 5003, when limitation of motion would be noncompensable, i.e., zero percent, under a limitation-of-motion code, but there is at least some limitation of motion, VA assigns a 10 percent disability rating for each major joint so affected, to be combined, not added. 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. In the absence of any limitation of motion, involvement of 2 or more major joints or 2 or more minor joint groups warrants a 10 percent evaluation, and the same with occasional incapacitating exacerbations warrants a 20 percent evaluation. The hip is considered a major joint. 38 C.F.R. § 4.45 (f). The Veteran's impairment of the left thigh is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5253. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. 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). 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." 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 Board finds that the preponderance of the evidence is against a higher rating for any period on appeal. The Board acknowledges the Veteran's lay reports of pain and limitation of motion and acknowledges that there was functional loss due to pain, weakened movement, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in symptoms more nearly approximating the criteria for a higher rating for any period on appeal. At an April 2008 VA examination, the Veteran reported pain with motion of the left hip. He was able to adduct 0 to 20 degrees, abduct 0 to 30 degrees, externally rotate 0 to 45 degrees, internally rotate 0 to 20 degrees, flex 0 to 90 degree, and extend 0 to 15 degrees. Following repetitive testing, there was no further loss of motion due to pain, weakness, fatigue, or incoordination. He had full strength in the lower extremities and intact, symmetric reflexes. He was diagnosed with degenerative joint disease in the left hip. In August 2011, the Veteran was afforded a new VA examination. On examination, flexion of the left hip was from 0 to 100 degrees. Extension was from 0 to 20 degrees. Abduction was from 0 to 35 degrees. He was able to cross his left leg over his right and toe out greater than 15 degrees. There was objective evidence of pain with active motion, including following repetitive motion; however, there was no additional limitation of motion following repetitive testing. Sensation, reflexes, and strength were normal in the lower extremities. The Veteran reported weekly flare-ups lasting several hours. The degree of impairment during these flare ups was listed as 75%, but it is unclear whether this was a subjective estimate by the Veteran of his functional impairment or a medical conclusion by the examiner and the degree of functional impairment was not estimated in terms of range of motion. In December 2015, the Veteran was afforded a third VA examination of his left hip degenerative joint disease. The Veteran described constant left hip pain with flare-ups related to weather changes. He reported difficulty with prolonged standing and walking. On examination, the Veteran had flexion from 0 to 80 degrees, extension from 0 to 24 degrees, abduction from 0 to 25 degrees, adduction from 0 to 15 degrees, external rotation from 0 to 46 degrees, and internal rotation from 0 to 20 degrees. The Veteran was unable to cross his legs. Pain was noted on examination, but did not cause functional loss. There was no evidence of pain with weight-bearing. There was no additional limitation of motion following repetitive testing. The examiner was unable to determine without resorting to speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or during flare-ups. The Veteran had reduced muscle strength in the left hip, but no muscle atrophy. He had no ankylosis of the left hip. The Veteran was again examined in June 2017. However, the examiner was unable to test range of motion because of the Veteran's knee and hip pain. The Veteran had pain with weight-bearing. He had full strength in the lower extremities. The Veteran did not have ankylosis. The examiner was unable to determine without resorting to speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or during flare-ups. The examiner explained that to determine functional impairment under those circumstances would require assessment by a trained observer at the time of the flare-up or following the repeated use. The examiner did state that the Veteran's left hip condition would impair prolonged walking, standing, or sitting. In a February 2019 addendum medical opinion, the examiner explained that she could not describe any functional impairment during flare-ups or after repeated use in terms of range of motion because she had been unable to perform range of motion testing at the 2017 examination. The Veteran was afforded a final VA examination in April 2021. He continued to complain of constant left hip pain, as well as occasional popping. He described daily flare-ups of severe pain lasting several hours, usually precipitated by movement or weight-bearing. On examination of active range of motion, flexion had an endpoint of 70 degrees, abduction had an endpoint of 15 degrees, adduction had an endpoint of 10 degrees, external rotation had an endpoint of 5 degrees, and internal rotation had an endpoint of 5 degrees. Limitation of adduction prevented the Veteran from crossing his legs. The examiner was unable to assess extension or passive range of motion of the left hip or active range of motion in the right hip due to pain. There was evidence of pain with weight-bearing, active range of motion, and passive range of motion. The examiner observed that the Veteran's pain results in weakness and limitation of motion, affecting gait, balance, and mobility. The Veteran was unable to perform repetitive testing because of pain. The examiner opined that pain and weakness would significantly limit functional ability with repeated use over a period of time and during flare-ups. The examiner estimated that the Veteran's range of motion would be limited after repeated use or during flare-ups as follows: flexion had an estimated endpoint of 60 degrees, extension had an estimated endpoint of 0 degrees, abduction had an estimated endpoint of 5 degrees, adduction had an estimated endpoint of 5 degrees, external rotation had an estimated endpoint of 5 degrees, and internal rotation had an estimated endpoint of 5 degrees. The Veteran did not have ankylosis, flail hip, malunion or nonunion of the femur, or leg length discrepancy. VA outpatient treatment records were also reviewed, but did not show any evidence of that the Veteran was prevented from crossing his thighs or had rotation limited to 15 degrees or less prior to December 21, 2015 or had abduction limited to 10 degrees or less prior to April 8, 2021. Since April 8, 2021, the Veteran has been assigned the maximum schedular rating under Diagnostic Code 5253. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. 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); see also 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). Here, the Veteran is also rated under Diagnostic Codes 5251 and 5252, which will be discussed below. Because there is no evidence that he has left hip ankylosis, left hip flail, or malunion or nonunion of the left femur, Diagnostic Codes 5250, 5254, and 5255 are not applicable and a higher rating cannot be assigned under those diagnostic codes. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for an initial compensable rating for left thigh impairment for the period prior to December 21, 2015, a rating in excess of 10 percent from December 21, 2015 to April 7, 2021, and a rating in excess of 20 percent after April 8, 2021. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial rating in excess of 10 percent for left hip degenerative joint disease is denied. The Veteran's left hip degenerative joint disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252, for limitation of flexion of the thigh. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. As noted above, while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5252 was not changed. 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). 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." 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 Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for limitation of flexion of the left hip. The Board acknowledges the Veteran's lay reports of pain and limitation of motion and that there was functional loss due to pain, weakened movement, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in symptoms more nearly approximating flexion limited to 30 degrees. An April 2008 VA examination, the Veteran reported pain with motion of the left hip. He was able to adduct 0 to 20 degrees, abduct 0 to 30 degrees, externally rotate 0 to 45 degrees, internally rotate 0 to 20 degrees, flex 0 to 90 degree, and extend 0 to 15 degrees. Following repetitive use, there was no further loss of motion due to pain, weakness, fatigue, or incoordination. He had full strength in the lower extremities and intact, symmetric reflexes. He was diagnosed with degenerative joint disease in the left hip. In August 2011, the Veteran was afforded a new VA examination. On examination, flexion of the left hip was from 0 to 100 degrees. Extension was from 0 to 20 degrees. Abduction was from 0 to 35 degrees. He was able to cross his left leg over his right and toe out greater than 15 degrees. There was objective evidence of pain with active motion, including following repetitive motion; however, there was no additional limitation of motion following repetitive testing. Sensation, reflexes, and strength were normal in the lower extremities. The Veteran reported weekly flare-ups lasting several hours. The degree of impairment during these flare ups was listed as 75%, but it is unclear whether this was a subjective estimate by the Veteran of his functional impairment or a medical conclusion by the examiner. In December 2015, the Veteran was afforded a third VA examination of his left hip degenerative joint disease. The Veteran described constant left hip pain with flare-ups related to weather changes. He reported difficulty with prolonged standing and walking. On examination, the Veteran had flexion from 0 to 80 degrees, extension from 0 to 24 degrees, abduction from 0 to 25 degrees, adduction from 0 to 15 degrees, external rotation from 0 to 46 degrees, and internal rotation from 0 to 20 degrees. The Veteran was unable to cross his legs. Pain was noted on examination, but did not cause functional loss. There was no evidence of pain with weight-bearing. There was no additional limitation of motion following repetitive testing. Tenderness to palpation of the joint was noted. The examiner was unable to determine without resorting to speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or during flare-ups. The Veteran had reduced muscle strength in the left hip, but no muscle atrophy. He had no ankylosis of the left hip. The Veteran was again examined in June 2017. However, the examiner was unable to test range of motion because of the Veteran's knee and hip pain. The Veteran had pain with weight-bearing. He had full strength in the lower extremities. The Veteran did not have ankylosis. The examiner was unable to determine without resorting to speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or during flare-ups. The examiner explained that to determine functional impairment under those circumstances would require assessment by a trained observer at the time. The examiner did state that the Veteran's left hip condition would impair prolonged walking, standing, or sitting. In a February 2019 addendum medical opinion, the examiner explained that she could not describe any functional impairment during flare-ups or after repeated use in terms of range of motion because she had been unable to perform range of motion testing at the 2017 examination. The Veteran was afforded a final VA examination in April 2021. He continued to complain of constant left hip pain, as well as occasional popping. He described daily flare-ups of severe pain lasting several hours, usually precipitated by movement or weight-bearing. On examination of active range of motion, flexion had an endpoint of 70 degrees, abduction had an endpoint of 15 degrees, adduction had an endpoint of 10 degrees, external rotation had an endpoint of 5 degrees, and internal rotation had an endpoint of 5 degrees. Limitation of adduction prevented the Veteran from crossing his legs. The examiner was unable to assess extension or passive range of motion of the left hip or active range of motion in the right hip due to pain. There was evidence of pain with weight-bearing, active range of motion, and passive range of motion. The examiner observed that the Veteran's pain results in weakness and limitation of motion, affecting gait, balance, and mobility. The Veteran was unable to perform repetitive testing because of pain. The examiner opined that pain and weakness would significantly limit functional ability with repeated use over a period of time and during flare-ups. The examiner estimated that the Veteran's range of motion would be limited after repeated use or during flare-ups as follows: flexion had an estimated endpoint of 60 degrees, extension had an estimated endpoint of 0 degrees, abduction had an estimated endpoint of 5 degrees, adduction had an estimated endpoint of 5 degrees, external rotation had an estimated endpoint of 5 degrees, and internal rotation had an estimated endpoint of 5 degrees. The Veteran did not have ankylosis, flail hip, malunion or nonunion of the femur, or leg length discrepancy. VA outpatient treatment records were also reviewed, but did not show any evidence of flexion of the left hip limited to 30 degrees or less. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. 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); see also 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). Here, the Veteran is also rated under Diagnostic Codes 5253 (discussed above) and 5251 (discussed below). Because there is no evidence that he has left hip ankylosis, left hip flail, or malunion or nonunion of the left femur, Diagnostic Codes 5250, 5254, and 5255 are not applicable and a higher rating cannot be assigned under those diagnostic codes. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for an initial rating in excess of 10 percent for left hip limitation of flexion. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an initial compensable rating for left hip limitation of extension is denied. In additional to evaluations under Diagnostic Code 5253 and 5252, discussed above, the Veteran's left hip degenerative joint disease is separately rated under 38 C.F.R. § 4.71a, Diagnostic Code 5251, for limitation of extension of the thigh. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Again, while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Codes 5251 was not changed. 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). 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." 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 Board finds that the preponderance of the evidence is against a compensable rating for any period on appeal. The Board acknowledges the Veteran's lay reports of pain and limitation of motion and acknowledges that there was functional loss due to pain, weakened movement, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in symptoms more nearly approximating the criteria for a higher rating. An April 2008 VA examination, the Veteran reported pain with motion of the left hip. He was able to adduct 0 to 20 degrees, abduct 0 to 30 degrees, externally rotate 0 to 45 degrees, internally rotate 0 to 20 degrees, flex 0 to 90 degree, and extend 0 to 15 degrees. Following repetitive use, there was no further loss of motion due to pain, weakness, fatigue, or incoordination. He had full strength in the lower extremities and intact, symmetric reflexes. He was diagnosed with degenerative joint disease in the left hip. In August 2011, the Veteran was afforded a new VA examination. On examination, flexion of the left hip was from 0 to 100 degrees. Extension was from 0 to 20 degrees. Abduction was from 0 to 35 degrees. He was able to cross his left leg over his right and toe out greater than 15 degrees. There was objective evidence of pain with active motion, including following repetitive motion; however, there was no additional limitation of motion following repetitive testing. Sensation, reflexes, and strength were normal in the lower extremities. The Veteran reported weekly flare-ups lasting several hours. The degree of impairment during these flare ups was listed as 75%, but it is unclear whether this was a subjective estimate by the Veteran of his functional impairment or a medical conclusion by the examiner. In December 2015, the Veteran was afforded a third VA examination of his left hip degenerative joint disease. The Veteran described constant left hip pain with flare-ups related to weather changes. He reported difficulty with prolonged standing and walking. On examination, the Veteran had flexion from 0 to 80 degrees, extension from 0 to 24 degrees, abduction from 0 to 25 degrees, adduction from 0 to 15 degrees, external rotation from 0 to 46 degrees, and internal rotation from 0 to 20 degrees. The Veteran was unable to cross his legs. Pain was noted on examination, but did not cause functional loss. There was no evidence of pain with weight-bearing. There was no additional limitation of motion following repetitive testing. Tenderness to palpation of the joint was noted. The examiner was unable to determine without resorting to speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or during flare-ups. The Veteran had reduced muscle strength in the left hip, but no muscle atrophy. He had no ankylosis of the left hip. The Veteran was again examined in June 2017. However, the examiner was unable to test range of motion because of the Veteran's knee and hip pain. The Veteran had pain with weight-bearing. He had full strength in the lower extremities. The Veteran did not have ankylosis. The examiner was unable to determine without resorting to speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time or during flare-ups. The examiner explained that to determine functional impairment under those circumstances would require assessment by a trained observer at the time. The examiner did state that the Veteran's left hip condition would impair prolonged walking, standing, or sitting. In a February 2019 addendum medical opinion, the examiner explained that she could not describe any functional impairment during flare-ups or after repeated use in terms of range of motion because she had been unable to perform range of motion testing at the 2017 examination. The Veteran was afforded a final VA examination in April 2021. He continued to complain of constant left hip pain, as well as occasional popping. He described daily flare-ups of severe pain lasting several hours, usually precipitated by movement or weight-bearing. On examination of active range of motion, flexion had an endpoint of 70 degrees, abduction had an endpoint of 15 degrees, adduction had an endpoint of 10 degrees, external rotation had an endpoint of 5 degrees, and internal rotation had an endpoint of 5 degrees. Limitation of adduction prevented the Veteran from crossing his legs. The examiner was unable to assess extension or passive range of motion of the left hip or active range of motion in the right hip due to pain. There was evidence of pain with weight-bearing, active range of motion, and passive range of motion. The examiner observed that the Veteran's pain results in weakness and limitation of motion, affecting gait, balance, and mobility. The Veteran was unable to perform repetitive testing because of pain. The examiner opined that pain and weakness would significantly limit functional ability with repeated use over a period of time and during flare-ups. The examiner estimated that the Veteran's range of motion would be limited after repeated use or during flare-ups as follows: flexion had an estimated endpoint of 60 degrees, extension had an estimated endpoint of 0 degrees, abduction had an estimated endpoint of 5 degrees, adduction had an estimated endpoint of 5 degrees, external rotation had an estimated endpoint of 5 degrees, and internal rotation had an estimated endpoint of 5 degrees. The Veteran did not have ankylosis, flail hip, malunion or nonunion of the femur, or leg length discrepancy. VA outpatient treatment records were also reviewed, but did not show any evidence of extension of the left leg limited to 5 degrees. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. 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); see also 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). Here, the Veteran is also rated under Diagnostic Codes 5253 and 5252 (discussed above). Because there is no evidence that he has left hip ankylosis, left hip flail, or malunion or nonunion of the let femur, Diagnostic Codes 5250, 5254, and 5255 are not applicable and a higher rating cannot be assigned under those diagnostic codes. As the Veteran's left hip extension was not limited to 5 degrees at any time during the period on appeal, he does not meet the criteria for a compensable disability rating under Diagnostic Code 5251, and the appeal is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.