Citation Nr: A25008564 Decision Date: 01/30/25 Archive Date: 01/30/25 DOCKET NO. 230626-356849 DATE: January 30, 2025 ORDER Entitlement to an effective date prior to May 25, 2021, for the 70 percent rating for the Veteran's service-connected PTSD is denied. Entitlement to an effective date prior to May 25, 2021, for the 50 percent rating for the Veteran's service-connected headache disability is denied. Entitlement to an effective date prior to May 25, 2021, for the 40 percent rating for the Veteran's service-connected lumbosacral strain is denied. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected right hip disability is denied. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected left hip disability is denied. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected cervical strain disability is denied. FINDINGS OF FACT 1. It is not factually ascertainable that the Veteran met the criteria for a 70 percent rating for his service-connected PTSD prior to May 25, 2021. 2. It is not factually ascertainable that the Veteran met the criteria for a 50 percent rating for his service-connected headaches prior to May 25, 2021. 3. The date of the claim to increase the rating for the Veteran's service-connected lumbosacral strain was May 25, 2021, and it was not factually ascertainable that the Veteran's service-connected lumbosacral strain increased in severity during the one-year period preceding the claim date. 4. The Veteran is in receipt of the highest rating permitted under Diagnostic Code 5251 and no compensable criteria have been met under any other diagnostic code pertaining to the Veteran's service-connected right hip disability. 5. The Veteran is in receipt of the highest rating permitted under Diagnostic Code 5251 and no compensable criteria have been met under any other diagnostic code pertaining to the Veteran's service-connected left hip disability. 6. The Veteran's service-connected cervical spine disability was not manifested by forward flexion limited to 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to May 25, 2021, for the 70 percent rating for the Veteran's service-connected PTSD have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 2. The criteria for entitlement to an effective date prior to May 25, 2021, for the 50 percent rating for the Veteran's service-connected headache disability have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 3. The criteria for entitlement to an effective date prior to May 25, 2021, for the 40 percent rating for the Veteran's service-connected lumbosacral strain have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 4. The criteria for entitlement to a rating in excess of 10 percent for the Veteran's service-connected right hip disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Codes 5251, 5252, 5253. 5. The criteria for entitlement to a rating in excess of 10 percent for the Veteran's service-connected left hip disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Codes 5251, 5252, 5253. 6. The criteria for entitlement to a rating in excess of 10 percent for the Veteran's service-connected cervical strain disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2011 to December 2014. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2023 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2022 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. Because the Veteran's claims are being denied herein, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. EFFECTIVE DATES The relevant law and regulations provide that the effective date of an award of increased compensation "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110 (a). The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). The "date entitlement arose" is when the claimant met the requirements for the benefits sought, which is determined on a "facts found" basis. 38 U.S.C. § 5110 (a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151 (a). When a Veteran submits notice of an intent to file a claim and a completed claim is received within one year of the notice of intent to file, the effective date for the subsequent claim may be applied based on the date VA received the notice of intent to file. 38 C.F.R. § 3.155. Further, only one complete claim for a benefit may be associated with each intent to file. If multiple claims are filed within one year of notice of an intent to file, only the first claim filed will be associated with the intent to file a claim. See 38 C.F.R. § 3.155 (d)(1)(ii). An exception to that rule applies, however, where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation or notice of intent. If an increase in disability occurred within one year prior to date of receipt of the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). The United States Court of Veterans Appeals (Court) has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. INCREASED RATINGS Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When determining the severity of musculoskeletal disabilities, which are at least partly-rated on the basis of range of motion, VA must also consider the extent the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995), see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 1. Entitlement to an effective date prior to May 25, 2021, for the 70 percent rating for the Veteran's service-connected PTSD. 2. Entitlement to an effective date prior to May 25, 2021, for the 50 percent rating for the Veteran's service-connected headache disability. 3. Entitlement to an effective date prior to May 25, 2021, for the 40 percent rating for the Veteran's service-connected lumbosacral strain. The Veteran's representative argues that the effective date for the Veteran's increased rating should be January 23, 2020, the date a Notice of Intent was filed. The representative asserted that the Veteran's claims were continuously prosecuted after the filing of this Notice. See February 2023 correspondence. The Veteran was initially granted service connection for PTSD, headaches, and lumbosacral strain in a December 2018 rating decision. The Veteran did not appeal that rating decision within one year and that decision became final. 38 C.F.R. § 20.1100 (a). A notice of intent to file a claim was received on January 23, 2020. Subsequently, on May 15, 2020, a VA Form 20-0995, Supplemental Claim, was filed requesting increased ratings for the Veteran's service-connected PTSD and headaches. The Veteran's then assigned ratings for his service-connected PTSD and headaches were continued in a July 2020 rating decision. On May 25, 2021, the Veteran filed a VA Form 21-526EZ, Fully Developed Claim, requesting assignment of a total disability rating based on individual unemployability (TDIU). The Veteran also simultaneously filed a May 25, 2021, VA Form 20-0996, Request for Higher-Level Review, for his claims for increased ratings for his service-connected PTSD and headaches. The Veteran's then assigned ratings for his service-connected PTSD (50 percent) and headaches (noncompensable) were again continued in a July 2021 rating decision. In January 2022, the Veteran filed a VA Form 21-8904, TDIU application, and asserted that all of his service-connected disabilities prevented him from securing or following a substantially gainful occupation. In March 2022, the Veteran submitted a VA Form 20-0995, Supplemental Claim, requesting increased ratings for his service-connected PTSD and headaches. In May 2022, another rating decision was issued which, in relevant part, increased ratings for the Veteran's service-connected PTSD to 70 percent, headaches to 50 percent, and lumbar spine disability to 40 percent all effective May 25, 2021. An August 2022 rating decision continued the 70 percent rating for the Veteran's service-connected PTSD and the 50 percent rating for the Veteran's service-connected headaches. In February 2023, the Veteran filed a VA Form 20-0996, Request for Higher-Level Review, and requested effective dates earlier than May 25, 2021, for the grant of increased ratings for the Veteran's service-connected PTSD, headaches, and lumbosacral strain among other requests. In April 2023, a higher-level review rating decision was issued denying, in relevant part, earlier effective dates for the increased ratings for the Veteran's service-connected PTSD, headache, and lumbar spine disabilities. The Veteran then filed the June 2023 VA Form 10182 appealing the claims addressed in that decision to the Board. First, the Board will address, from a procedural viewpoint, the earliest possible effective dates for the increased ratings for the Veteran's service-connected PTSD, headache, and lumbar spine disabilities. With regard to the Veteran's claims for entitlement to an earlier effective date for the grant of entitlement to a 70 percent rating for his service-connected PTSD and a 50 percent rating for his service-connected headaches, the earliest possible effective date procedurally is January 23, 2019. The Veteran filed a Notice of Intent on January 23, 2020, and the next claim filed immediately after January 23, 2020, was the May 2020 Supplemental Claim requesting increased ratings for the Veteran's service-connected PTSD and headaches. The Board emphasizes that a Notice of Intent only preserves the effective date for one claim filed immediately after the Notice of Intent and within 1 year of the Notice of Intent. Regardless, only one claim, the May 2020 Supplemental Claim, was filed within one year of the January 23, 2020, Notice of Intent. Accordingly, January 23, 2020, will be considered the date of the claim for the Veteran's request for increased rating for his service-connected PTSD and headache disabilities. In addition, the Board may assign an effective date up to one year prior to the January 23, 2020, Notice of Intent, ie. as early as January 23, 2019, if an increase in the severity of these disabilities was factually ascertainable during this one-year period. See 38 C.F.R. § 3.400 (o)(2). The Veteran's service-connected PTSD is rated at 50 percent prior to May 25, 2021, and 70 percent from May 25, 2021. The Veteran's service-connected headache disability is rated at noncompensable prior to May 25, 2021, and 50 percent from May 25, 2021. The question for the Board is whether entitlement to a 70 percent rating for the Veteran's service-connected PTSD and a 50 percent rating for the Veteran's service-connected headache disability arose prior to May 25, 2021, to include within one year prior to the January 23, 2020, Notice of Intent. The Board finds in the negative. With regard to his service-connected acquired psychiatric disability, a July 2020 VA examiner determined that the Veteran's acquired psychiatric disability was manifested by occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran also reported increased isolation, even at work and explained that he worked his shift at a hydration booth at festivals and left after his shift and did not stay to interact or watch other acts at the festivals. The Veteran also reported stress eating and difficulty with cooking. The Board finds that the July 2020 VA examination supports the currently assigned 50 percent rating for the period prior to May 25, 2021. No other lay or medical evidence indicates that the Veteran's service-connected PTSD worsened during the period from January 23, 2019, to May 25, 2021. The Veteran's service-connected acquired psychiatric disability is rated under Diagnostic Code 9411. Under this diagnostic code, a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. Here, the only evidence addressing the severity of the Veteran's service-connected PTSD during period from January 23, 2019, to May 25, 2021, is the July 2020 VA examination. The July 2020 VA examiner determined that the Veteran' service-connected PTSD was manifested by occupational and social impairment with reduced reliability and productivity and not by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Moreover, the Board finds that the Veteran's symptoms, as noted during the July 2020 VA examination, did not include those contemplated by the criteria for assignment of a 70 percent rating. For example, the Veteran did not endorse or evidence suicidal ideation; obsessional rituals; intermittently illogical, obscure, or irrelevant speech; impaired impulse control; unprovoked violence; spatial disorientation; nor neglect of personal appearance or hygiene. See July 2020 VA examiner's report. While the VA examiner did note that the Veteran had difficulty in establishing and maintaining effective work and social relationships and the Veteran reported increased isolation, the evidence does not support an "inability" to establish and maintain effective relationships as contemplated by the criteria for a higher, 70 percent rating. The Board notes that the Veteran remained married and worked at a hydration booth for his friend, which shows that the Veteran was able to establish and maintain effective familial, social, and work relationships albeit with some difficult as noted by the VA examiner. In addition, the Veteran was able to adapt to stressful circumstances of his work at the hydration booth by leaving after his shift instead of lingering at the festivals where he worked. Id. Lastly, although the VA examiner determined that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, and panic attacks (conflictingly noted to be both weekly or less often and more than once a week), these symptoms were not reported to be near continuous as contemplated by the criteria for a higher, 70 percent rating. The Board finds that no evidence, including the July 2020 VA examiner's report, indicates that the Veteran met the criteria outlined in Diagnostic Code 9411 for entitlement to a 70 percent rating for his service-connected acquired psychiatric disability prior to May 25, 2021. No relevant lay or medical evidence supports assignment of a 70 percent rating for the Veteran's service-connected acquired psychiatric disability prior to May 25, 2021. With regard to his service-connected headaches, during the July 2020 VA examination the Veteran reported his headaches worsened with movement and were associated with his chronic back and neck pain. The Veteran used medical marijuana for treatment of his headaches and other unrelated chronic pain. The Veteran experienced headache pain at the back of his head and non-headache symptoms of sensitivity to light, especially with bright lights at night while driving. The Veteran's typical head pain lasted less than 1 day in duration. The Veteran did not have characteristic prostrating attacks of headache pain, nor did he have very prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. No other lay or medical evidence indicates that the Veteran's service-connected headache disability worsened during the period from January 23, 2019, to May 25, 2021. The Veteran's service-connected headache disability is rated under Diagnostic Code 8100. Under this diagnostic code, a 50 percent rating, the highest available under Diagnostic Code 8100, is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Here, no evidence, including the July 2020 VA examiner's report, indicates that entitlement to a 50 percent rating for the Veteran's service-connected headache disability arose prior to May 25, 2021. Entitlement to a 50 percent rating under Diagnostic Code 8100 requires migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Here, the only relevant evidence of record, the July 2020 VA examiner's report, determined that the Veteran's headaches were not manifested by prostrating attacks of headache pain. In addition, the Veteran reported his typical head pain lasted less than 1 day in duration, which does not support a 50 percent rating which contemplates "prolonged" attacks of headache pain. Finally, the VA examiner expressly determined that the Veteran did not have prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. While the Veteran believes that his headache symptoms supported a 50 percent rating prior to May 25, 2021, the Board affords greater probative weight to the findings made by the July 2020 VA examiner who has the medical training or credentials to make such determinations. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). No relevant lay or medical evidence supports assignment of a 50 percent rating for the Veteran's service-connected headache disability prior to May 25, 2021. Accordingly, the Board finds that entitlement to an effective date prior to May 25, 2021, is not warranted for the grant of entitlement to a 70 percent rating for the Veteran's service-connected PTSD nor for the grant of entitlement to a 50 percent rating for the Veteran's service-connected headache disability. These claims are denied. With regard to the Veteran's claim for an earlier effective date for the assignment of an increased, 40 percent rating for his service-connected lumbosacral strain, the earliest possible effective date from a procedural viewpoint is May 25, 2020, one year prior to the May 25, 2021, Fully Developed Claim. Here, as previously explained, the December 2018 rating decision granted service connection for the Veteran's lumbosacral strain was not appealed and became final. 38 C.F.R. § 20.1100 (a). Subsequently, the AOJ adjudicated the May 2021 Fully Developed Claim requesting entitlement to TDIU as an increased rating claim for all of his service-connected disabilities. No claim prior to May 2021 requested an increased rating for the Veteran's service-connected lumbosacral strain. Accordingly, in affording the Veteran the benefit of the doubt and interpreting his May 2021 Fully Developed Claim as a claim for an increased rating for his service-connected lumbosacral strain, the date of the claim for an increased rating for the Veteran's lumbosacral strain is May 25, 2021 and the Board may assign an effective date up to one year prior to the May 25, 2021 claim if an increase in the severity of the Veteran's lumbosacral strain was factually ascertainable during this one year period. See 38 C.F.R. § 3.400 (o)(2). In this case, the evidence does not provide a date during the one-year look-back period at which time it is factually ascertainable that the Veteran's lumbosacral strain had increased in severity. The Veteran was afforded a VA examination in May 2022 but not during the one-year lookback period prior to May 25, 2021. With regard to lay evidence, in August 2021, the Veteran's wife, who was at the time a 3rd year chiropractic student, stated that the Veteran's low back pain had progressively worsened with more severe symptoms. However, the Veteran's wife did not indicate when the Veteran's low back disability worsened, nor did she provide any description of the increased symptoms or functional impairment related to the Veteran's service-connected lumbosacral strain disability. No other lay or medical evidence addressed the Veteran's service-connected lumbosacral strain during the one-year lookback period prior to May 25, 2021. The Board finds that insufficient lay or medical evidence has been submitted to demonstrate that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim. Accordingly, the Veteran's claim for an earlier effective date prior to May 25, 2021, for the award of a 40 percent rating for the Veteran's service-connected lumbosacral strain is denied. 4. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected right hip disability 5. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected left hip disability The Veteran asserts that his service-connected bilateral hip disabilities are more severe than the evaluations currently assigned reflect. The Veteran is currently assigned 10 percent ratings under Diagnostic Code 5251 and noncompensable ratings under Diagnostic Code 5252 and 5253 for both his left and right hip disabilities. Under Diagnostic Code 5251, a 10 percent rating is assigned for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71 (a). No higher rating is available under that code. 38 C.F.R. § 4.71a. Under Diagnostic Code 5252, a 10 percent rating is assigned for flexion of the thigh limited to 45 degrees. A 20 percent rating is assigned for flexion of the thigh limited to 30 degrees. A 30 percent rating is assigned for flexion of the thigh limited to 20 degrees. A 40 percent rating is assigned for flexion of the thigh limited to 10 degrees. 38 C.F.R. § 4.71(a). Under Diagnostic Code 5253, impairment of the thigh, a 10 percent rating is assigned for limitation of rotation of the thigh, cannot toe-out more than 15 degrees, affected leg. A 10 percent rating is also assigned for limitation of adduction of the thigh, cannot cross legs. A 20 percent rating is assigned for limitation of abduction of the thigh, motion lost beyond 10 degrees. 38 C.F.R. § 4.71(a). Diagnostic Codes 5250, 5254, and 5255 are not applicable because the evidence of record has not shown the Veteran to have ankylosis, impairment or malunion of the femur, or flail joint of the bilateral thighs or bilateral hips. During an in-person May 2022 VA examination, the Veteran's right hip exhibited flexion to 110 degrees, extension to 20 degrees, abduction to 35 degrees, adduction to 20 degrees, external rotation to 40 degrees and internal rotation to 40 degrees. The Veteran's left hip exhibited flexion to 120 degrees, extension to 25 degrees, abduction to 40 degrees, adduction to 20 degrees, external rotation to 50 degrees, and internal rotation to 40 degrees. A limitation in adduction did not prevent the Veteran from crossing either of his legs. The VA examiner did not note any objecting findings of pain although the Veteran reported subjective pain. See May 2022 VA examiner's report. At the outset, the Board the Board emphasizes that the Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 5251 which is the highest rating available under that diagnostic code. Pursuant to Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997), if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion and a higher rating requires ankylosis, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. Accordingly, the Board finds that no higher rating is available under Diagnostic Code 5251 for the Veteran's left or right hip disability based on limitation of extension. Turning to Diagnostic Code 5252, in order to warrant a 10 percent rating, the Veteran must exhibit flexion of the thigh limited to 45 degrees. Here, the Veteran had left hip flexion to 120 degrees and right hip flexion to 110 degrees. Accordingly, the criteria for a compensable rating were not met under Diagnostic Code 5252 for either hip. With regard to Diagnostic Code 5253, in order to warrant a 10 percent rating, the Veteran must exhibit limitation of rotation of the thigh preventing him from turning out his toe more than 15 degrees or limitation of adduction of the thigh preventing him from crossing his legs. Here, the Veteran exhibited left hip rotation to 50 degrees on external rotation and 40 degrees on internal rotation and right hip rotation to 40 degrees on external rotation and 40 degrees on internal rotation. In addition, the Veteran was able to cross both legs. See May 2022 VA examiner's report. Accordingly, the criteria for a compensable rating were not met under Diagnostic Code 5253 for either hip. No evidence has been submitted contradicting the findings contained in the May 2022 VA examiner's report. The Board has considered the Veteran's reports of daily hip pain and the Veteran's reports of functional impairment due to difficulty squatting or bending down and his need to sit on a donut to relieve stress from his hips and back. See May 2022 VA examiner's report. The Board accepts that the Veteran has functional impairment, pain and limited motion as demonstrated during the May 2022 VA examination. See DeLuca, supra. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for a compensable evaluation under either Diagnostic Code 5252 or 5253. The Board affords greater probative weight to the objective findings during the May 2022 VA examination including the objective range of motion measurements and determinations that the Veteran could cross his legs. The Veteran is competent to report his symptoms of pain. However, the Veteran has not provided any evidence in support of the specific rating criteria required for a compensable rating under Diagnostic Codes 5252 and 5253. In addition, the Board affords greater probative value to the objective findings made by the May 2022 VA examiner who has the medical training or credentials to make such determinations. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). For the reasons and bases stated above, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected left or right hip disabilities under Diagnostic Code 5251, nor are compensable ratings under Diagnostic Codes 5252 or 5253, nor are any other additional, separate ratings. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. 6. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected cervical strain disability The Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 5237 for his service-connected cervical spine disability for the entire period on appeal. The Board finds that the appropriate Diagnostic Code for the evaluating the Veteran's cervical strain disability continues to be Diagnostic Code 5237, cervical strain as the Veteran has had no incapacitating episodes. In addition, neither the Veteran nor his representative has argued that the Veteran's service-connected cervical spine disability should be rated under any other diagnostic code. The rating criteria for musculoskeletal disorders were revised on February 7, 2021. However, the general rating criteria for diseases and injuries of the spine and the formula for rating intervertebral disc syndrome based on incapacitating episodes remain unchanged under the new rating criteria. Pursuant to the general rating criteria for diseases and injuries of the spine, a 10 percent evaluation is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal, kyphosis. A 30 percent evaluation is warranted for forward flexion of the cervical 15 degrees or less; or favorable ankylosis of the entire cervical spine. A higher evaluation of 40 percent is warranted for unfavorable ankylosis of the entire cervical spine. The highest evaluation of 100 percent is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Pursuant to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is assigned for 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. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. In order to be entitled to a higher, 20 percent rating, the Veteran's service-connected cervical spine disability must be manifested by forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. At the outset, the Board acknowledges that the Veteran reported daily ticks and jerking due to pain and tightness in his neck and shoulders; however, no medical or lay evidence indicates that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait, abnormal spinal contour, scoliosis, reversed lordosis, nor abnormal kyphosis. See April 2022 VA examiner's report. Accordingly, the Board finds that the Veteran's reported "ticks" were not of the type or severity to warrant a higher, 20 percent rating under Diagnostic Code 5237. Next, the only range of motion measurements of record during the period on appeal indicate that the Veteran had forward flexion of his cervical spine to 35 degrees. See April 2022 VA examiner's report. Since the Veteran had forward flexion greater than 30 degrees, a higher, 20 percent rating is also not warranted under Diagnostic Code 5237 based on limitation of forward flexion. Lastly, the only range of motion measurements of record during the period on appeal show a combined range of motion of the Veteran's cervical spine of 240 degrees. Id. Accordingly, since the Veteran had combined range of motion of the cervical spine greater than 170 degrees, again a higher, 20 percent rating is not warranted under Diagnostic Code 5237. (Continued on the next page) ? The Board acknowledges that the Veteran exhibited pain on all ranges of motion during his April 2022 VA examination and that the VA examiner determined that pain on weightbearing and active motion caused functional loss due to the Veteran's difficulty turning his head. The Board also acknowledges the Veteran's report that he is unable to drive due to neck and shoulder tightness and pain. The Board accepts that the Veteran has functional impairment, pain and limited motion as demonstrated during the April 2022 VA examination. See DeLuca, supra. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an evaluation in excess of 10 percent. The Board affords greater probative weight to the objective findings during the April 2022 VA examination including the objective range of motion measurements and determination that the Veteran did not have abnormal spinal contour. The Veteran is competent to report his symptoms of pain and tightness and functional impairments that he observes. However, the Veteran has not provided any evidence in support of the specific rating criteria required for a higher, 20 percent rating under Diagnostic Code 5237. In addition, the Board affords greater probative value to the objective findings made by the April 2022 VA examiner who has the medical training or credentials to make such determinations. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board affords the most probative weight to the objective findings contained in the April 2022 VA examination. For the reasons and bases stated above, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected cervical spine disability nor any additional, separate ratings. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. D. SMART Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi, 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.