Citation Nr: 21040101 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-26 549 DATE: July 2, 2021 ORDER Entitlement to a 40 percent rating, but no higher, for a back disability is granted. Entitlement to a 10 percent rating, but no higher, for lost left hip flexion is granted. Entitlement to a 10 percent rating, but no higher, for lost left hip abduction/abduction is granted. Entitlement to a higher rating for lost left hip extension rated as 10 percent disabling is denied. REMANDED Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's back disability is manifested by adverse symptomatology that equates to forward flexion of the thoracolumbar spine being 30 degrees or less but not at least unfavorable ankylosis of the entire thoracolumbar spine even when considering her complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor is it manifested by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 6 weeks during a 12-month period at any time during the pendency of the appeal. 2. The preponderance of the evidence shows that the Veteran's lost left hip flexion is manifested by painful motion but not at least flexion of the thigh to 30 degrees or less even when considering her complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups at any time during the pendency of the appeal. 3. The preponderance of the evidence shows that the Veteran's lost left hip abduction/abduction is manifested by painful motion but not at least abduction lost beyond 10 degrees even when considering her complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups at any time during the pendency of the appeal. 4. The preponderance of the evidence shows that the Veteran's lost left hip extension is in receipt of the maximum rating possible for lost extension and her left hip disabilities are not manifested by ankylosis or a marked left hip or a marked left knee disability even when considering her complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups, femur malunion, or a flail joint at all times during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher, for a back disability have been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5235 to 5243. 2. The criteria for a 10 percent rating, but no higher, for lost left hip flexion have been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Code 5252. 3. The criteria for a 10 percent rating, but no higher, for lost left hip abduction/adduction have been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Code 5253. 4. The criteria for a rating in excess of 10 percent rating for lost left hip extension have not been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes5250, 5251, 5254, and 5255. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 2008 to November 2012. In July 2019, a Veterans' Law Judge not the undersigned issued a Board of Veterans' Appeal (Board) decision that denied the claim for a rating in excess of 10 percent for lost left hip extension and Remanded the above rating claims as well as a claim of service connection for bilateral plantar fasciitis for additional development. The Veteran appealed the July 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 order, that incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the July 2019 Board decision to the extent that it denied a rating in excess of 10 percent for lost left hip extension. As to the claim of service connection for bilateral plantar fasciitis, a December 2020 rating decision granted this claim. Therefore, the Board finds that this issue is no longer in appellate status. As to the claim for an increased rating for a back disability, the December 2020 rating decision also granted the Veteran a 40 percent rating effective from November 9, 2020. However, this issue has been pending since January 21, 2014, when it was only rated as 10 percent disabling. Therefore, the Board finds that this rating issue includes the proper rating since January 21, 2014. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the regional office (RO) and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation). As to the TDIU claim, the Board finds that it is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the Board notes that additional evidence was added to the claims file since the regional office (RO) issued the most recent supplemental statements of the case. Nonetheless, the Board finds that it may adjudicate the appeal without first remanding this evidence for agency of original jurisdiction (AOJ) review because in June 2021 the Veteran's representative waived such review. See 38 C.F.R. § 20.1304(c). Concerns Raised by the JMPR Initially, the Board notes that in the JMPR the ground for the Court vacating and remanding the July 2019 Board decision to the extent that it denied a rating in excess of 10 percent for lost left hip extension was because the decision was issued without first rescheduling the personal hearing the Veteran had request. Tellingly, in May 2021 the Veteran notified the Board that she was withdrawing her personal hearing request, undermining the basis for the JMPR. Therefore, the Board finds that it need not take any further action to address the concerns raised by the JMPR. The Rating Claims The Veteran claims, in substance, that she is entitled to higher ratings for her back and left hip disabilities at all times during the pendency of the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Next, the Board notes that when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Lastly, in Chavis v. McDonough, No. 18-2928 (2021) the Court held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). i. The Recent Amendments to the Musculoskeletal Rating Criteria Initially, the Board notes that during the pendency of the appeal VA amended some of its' criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). However, the Board finds that none of the amendments change how this Veteran's back and left hip disabilities are rated. The Board has reached this conclusion because it finds that none of the amendments actually changes how her disabilities are rated under all applicable Diagnostic Codes because the specific rating criteria were not amended or because the Veteran's disabilities are not ratable under the amended criteria. Therefore, the Board finds that a Remand to provide the Veteran with notice of these new rating criteria and have the claims adjudicating applying them is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). ii. Correia and Sharp Compliance Next, in adjudicating below whether the Veteran meets the criteria for higher evaluations for her back and left hip disabilities the Board has not overlooked the Court's holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases. Specifically, the Board finds that the November 2020 and/or March 2021 VA examinations provided VA with medical opinion evidence adequate to rate the Veteran's back and left hip disabilities when considering her complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups because the examiners specifically addressed each of these concerns. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with new VA examinations is not required. See Sabonis, supra. The Back Disability The Veteran's back disability is rated as 10 percent disabling from January 21, 2014, and 40 percent disabling from November 9, 2020, under 38 C.F.R. § 4.71a, Diagnostic Code 5242. In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; a 40 percent rating if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. The Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. In this regard, as of February 7, 2021, the only amendment to Diagnostic Code 5243 is the notation that it should be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. i. As to a rating in excess of 10 percent from January 21, 2014 As to a rating in excess of 10 percent for the back disability from January 21, 2014, the Court has held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Chavis, Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of her observable adverse symptomatology (see Davidson, supra) and when resolving all reasonable doubt in her favor, the Board finds that the most probative evidence of record are the November 2020 and March 2021 VA examinations that show that the back's adverse symptomatology approximates the criteria for at least a 40 percent rating at all times during the pendency of the appeal because it shows, among other things, forward flexion of the thoracolumbar spine is 25 degrees in November 2020 and 15 degrees in March 2021 (i.e., 30 degrees or less). See 38 C.F.R. § 4.71a; Owens, supra; Fenderson, supra; Tatum, supra; Young, supra. ii. As to a rating in excess of 40 percent from January 21, 2014 As to a rating in excess of 40 percent for the back disability from January 21, 2014, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Chavis, Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering her competent reports of her observable adverse symptomatology (see Davidson, supra), she does not meet the criteria for at least the next higher, 50 percent, rating under the General Rating Formula for Disease and Injuries of the Spine because the record is uniform in documenting at least some back motion and ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Also see Owens, supra. In fact, the February 2015, May 2016, November 2020, and March 2021 VA examiners specifically opined that the back was not ankylosed, and the board finds that these medical opinions are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board also finds that the Veteran is not competent to provide the missing diagnosis of ankylosis because this is a medical finding. See Davidson, supra. Moreover, the Board finds the VA examiners opinions as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiners have greater medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected back disability under the General Rating Formula for Disease and Injuries of the Spine due to ankylosis at all times during the pendency of the appeal. Hart, supra; Fenderson, supra. Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 40 percent for her back disability under the Formula for Rating Intervertebral Disc Syndrome at any time from January 21, 2014. The Board has reached this conclusion because, while the record documents the Veteran's complaints and treatment for her back disability, it does not show she ever had a total of at least 6 weeks of incapacitating episodes during any 12-month period during the pendency of the appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243; Fenderson, supra; Hart, supra. In fact, the May 2016 VA examiner specifically opined that she did not have any of incapacitating episodes and this medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. Moreover, Board finds that the Veteran as a lay person is not competent to provide this medical finding because she does not have the required training. See Davidson, supra; Colvin, supra. The Left Hip Disabilities The Veteran's lost left hip extension is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5251. Her lost left hip flexion is rated as 0 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5252. And, her lost left hip adduction/abduction is rated as 0 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5253. In this regard, the criteria for rating hip disorders provides that ankylosis which is "favorable" (in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction) warrants a 60 percent rating, "intermediate" warrants a 70 percent rating, and "unfavorable" (extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated) warrants a 90 percent rating under Diagnostic Code 5250; limitation of thigh extension to 5 degrees warrants a 10 percent rating under Diagnostic Code 5251; limitation of thigh flexion to 45 degrees warrants a 10 percent rating, limitation of thigh flexion to 30 degrees warrants a 20 percent rating, and limitation of thigh flexion to 20 degrees warrants a 30 percent rating under Diagnostic Code 5252; lost abduction causing the Veteran to not be able to cross her legs warrants a 10 percent, not being able to toe-out more than 15 degrees warrants a 10 percent rating, and abduction lost beyond 10 degrees warrants a 20 percent rating under Diagnostic Code 5253; a flail joint warrants a 80 percent rating under Diagnostic Code 5254; impairment of the femur with malunion with moderate knee or hip disability warrants a 20 percent rating, impairment of the femur with malunion with marked knee or hip disability warrants a 30 percent rating, with nonunion, without loose motion, and weight bearing preserved with aid of brace warrants a 60 percent rating, with a fracture of surgical neck with false joint warrants a 60 percent rating, and fracture of shaft or anatomical neck with nonunion and loose of motion (spiral or oblique fracture) warrants an 80 percent rating under Diagnostic Code 5255. See 38 C.F.R. § 4.71a. As of February 7, 2021, the only amendment to the Diagnostic Codes for rating the hip is under Diagnostic Code 5255 which know provides that impairment of the femur with malunion with knee or hip disability are evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee or 5250 to 5254 for the hip, whichever results in the highest evaluation. See 38 C.F.R. § 4.71a. In this regard, the Board notes that any application of new Diagnostic Code 5255 would only be effective from the date of the amendment-February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). i. Compensable Rating for Lost Left Hip Flexion and Adduction/Abduction As to at least compensable ratings for loss of left hip flexion under Diagnostic Code 5252 and loss of left hip adduction/abduction under Diagnostic Code 5253, the Board notes that at all times during the pendency of the appeal the Veteran has complained, in substance, of pain with left hip flexion and adduction/abduction. See, e.g., VA examinations dated in February 2015, May 2016, November 2020, and March 2021. The Board also finds the Veteran complaints of left hip flexion and adduction/abduction pain both competent and credible because it is something she can feel and it is consistent with the nature of her service-connected disabilities as well as the findings by her VA examiners. See Davidson, supra. Likewise, the Board notes that left hip flexion and adduction/abduction pain with motion was objective confirmed by the Veteran's VA examiners. See VA examinations dated in February 2015, May 2016, November 2020, and March 2021. Therefore, taking into account 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of her observable adverse symptomatology (see Davidson, supra), the Board finds that the Veteran's symptoms met the criteria for at least 10 percent ratings at all times during the pendency of the appeal under Diagnostic Codes 5252 and 5253. 38 C.F.R. § 4.71a; Also see Hart, supra; Fenderson, supra. ii. Ratings in Excess of 10 percent for Lost Left Hip Extension, Flexion, and Adduction/Abduction As to a higher rating for any of the Veteran's left hip disabilities due to ankylosis under Diagnostic Code 5250, the Board finds that even when considering the Veteran's reports of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, and Chavis, as well as when considering there competent reports of observable adverse symptomatology (see Davidson, supra), the disability does not meet the criteria for a higher rating by rating it as ankylosis because the record is uniform in documenting at least some motion and ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis, supra; Owens, supra. In fact, the February 2015, May 2016, November 2020, and March 2021 VA examiners all opined that the left hip was not ankylosed, and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board again finds that the Veteran is not competent to provide the missing diagnosis of ankylosis because this is a medical finding. See Davidson, supra. Moreover, the Board finds the VA examiners opinions as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiners have medical training. See Black, supra. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected left hip disabilities under Diagnostic Code 5250 at all times during the pendency of the appeal. See 38 C.F.R. § 4.71a; Fenderson, supra; Hart, supra. As to a rating in excess of 10 percent for lost left hip extension under Diagnostic Code 5251 the Board notes that the 10 percent disability rating already in place for the disability meets the maximum rating possible under this Diagnostic Code. Consequently, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected lost left hip extension under Diagnostic Codes 5251 at all times during the pendency of the appeal. See 38 C.F.R. § 4.71a; Fenderson, supra; Hart, supra. As to a rating in excess of 10 percent for lost left hip flexion under Diagnostic Code 5252, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, and Chavis, as well as when considering the appellant's competent reports of her observable adverse symptomatology (see Davidson, supra), she does not meet the criteria for at least the next higher rating at all times during the appeal because, at its worst, flexion was 120 degrees at the February 2015 VA examination, 110 degrees at the May 2016, 90 degrees at the November 2020, and 50 degrees at the March 2021; not the 30 degrees or less required for a 20 percent rating. See 38 C.F.R. § 4.71a; Fenderson, supra; Hart, supra. In reaching the above conclusions, the Board has not overlooked the Veteran's treatment records which frequently document her complaints and treatment for left hip pain and reduced motion. However, as noted above, none of these treatment records show that left hip flexion of 30 degrees or less. See Colvin, supra. The Board has also not overlooked the claims from the Veteran regarding her adverse symptomatology. See Davidson, supra. However, the Board finds the VA examiners opinions as to the Veteran's adverse symptomatology more probative than any lay claims from the appellant to the contrary even though her symptomatology is observable by a lay person because the examiners have greater medical training. See Black, supra. As to a rating in excess of 10 percent for lost left hip adduction/abduction under Diagnostic Code 5253, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, and Chavis, as well as when considering the appellant's competent reports of her observable adverse symptomatology (see Davidson, supra), she does not meet the criteria for at least the next higher rating at all times during the appeal because, at its worst, abduction was 40 degrees at the February 2015 VA examination, 35 degrees at the May 2016, 35 degrees at the November 2020, and 10 degrees at the March 2021; not the less than 10 degrees required for a 20 percent rating. See 38 C.F.R. § 4.71a; Fenderson, supra; Hart, supra. In this regard, Diagnostic Code 5253 specifically requires "motion lost beyond 10 degrees" (i.e., less than 10 degrees) for the Veteran to meet the criteria for a 20 percent rating for her lost abduction and the Board finds that the 10 degrees of abduction reported by the March 2021 is not less than 10 degrees. See Owens, supra. In reaching the above conclusions, the Board has not overlooked the Veteran's treatment records which frequently document her complaints and treatment for left hip pain and reduced motion. However, as noted above, none of these treatment records show that left hip abduction was less than 10 degrees. See Colvin, supra. In reaching the above conclusions, the Board has also not overlooked the claims from the Veteran regarding her adverse symptomatology. See Davidson, supra. However, the Board finds the VA examiner's opinions as to the Veteran's adverse symptomatology more probative than any lay claims from the appellant to the contrary even though her symptomatology is observable by a lay person because the examiner has medical training. See Black, supra. As to a higher rating for any of the Veteran's left hip disabilities under Diagnostic Codes 5254, the Board notes that the claims files does not contain a diagnosis of a flail joint. In fact, the February 2015, May 2016, November 2020, and March 2021 VA examiners opined that the Veteran's left femur disability did not include a flail joint and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds that the Veteran is not competent to provide the missing diagnosis of a flail joint because this is a medical finding. See Davidson, supra. Consequently, the Board finds that a higher rating is not warranted for any of the Veteran's service-connected left hip disabilities under Diagnostic Code 5254 at all times during the pendency of the appeal. See 38 C.F.R. § 4.71a; Fenderson, supra; Hart, supra. As to a higher rating for any of the Veteran's left hip disabilities under old and new Diagnostic Code 5255, the Board notes that the claims files does not contain a diagnosis of femur malunion. See, e.g., VA examinations dated in February 2015, May 2016, November 2020, and March 2021. In fact, the February 2015, May 2016, November 2020, and March 2021 VA examiners specifically opined that the Veteran's left femur disability did not include malunion. Likewise, the record on appeal is negative for a marked left hip or a marked left knee disability. See, e.g., VA examinations dated in February 2015, May 2016, November 2020, and March 2021. Similarly, the Board finds that the VA examiners reports more probative than any lay claims to the contrary from the Veteran because these are medical findings and because the medical professionals have greater medical training. See Davidson, supra; Black, supra. Consequently, the Board finds that a higher rating is not warranted for any of the Veteran's service-connected left hip disabilities under old and new Diagnostic Code 5255 at all times during the pendency of the appeal because the preponderance of the evidence shows that it neither includes malunion nor marked left hip or left knee disabilities. See 38 C.F.R. § 4.71a; Hart, supra; Fenderson, supra. Conclusion In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims to the extent outlined above, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND Entitlement to a TDIU is remanded. As noted above, the record raises a claim for a TDIU. See Rice, supra. However, the Board finds that this issue is not ready for appellate review because from the existing record the Board is not able to ascertain when, if ever, the Veteran's service connected disabilities prevented her from obtain and maintaining substantial gainful employment. See 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a remand is required to obtain from the Veteran a fully executed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, so the Board has the needed information to adjudicate whether her service-connected disabilities prevent her from obtain and maintaining substantial gainful employment given her prior vocational history, work experience, and education. See 38 U.S.C. § 5103A(b). While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38U.S.C.§5103A(b). This issue is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran's representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to her employment history since service along with her duties at those places of employment, if she is working in a protected environment and/or whether she earns more than the poverty level, whether she continues to be employed, the approximate date she stopped working full and part time, and how her service-connected disabilities prevent her from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. (Continued on the next page) Any help from the Veteran in obtaining this information would be appreciated. The form cited above is available on-line. The request should also notify the Veteran that the claim for a TDIU can be denied if she fails to cooperate with the prosecution of the claim by providing at the VA Form 21-8940. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.