Citation Nr: A25041270 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 210712-171185 DATE: May 6, 2025 ORDER The appeal for an effective date prior to May 4, 2015, for the grant of service-connection for cervical strain is dismissed. The appeal for a disability rating in excess of 10 percent prior to February 26, 2020, in excess of 20 percent prior to September 18, 2020, and in excess of 30 percent thereafter, for the service-connected cervical strain is dismissed. For the entire period on appeal, a disability rating in excess of 10 percent for the service-connected left hip limitation of adduction, is denied. An initial compensable disability rating prior to July 31, 2020, and a rating in excess of 10 percent thereafter, for the service-connected left hip limitation of extension, is denied. An initial compensable disability rating prior to July 31, 2020, and in excess of 10 percent thereafter for the service-connected left hip limitation of flexion, is denied. For the entire period on appeal, a disability rating in excess of 10 percent for the service-connected right hip limitation of adduction, is denied. An initial compensable disability rating prior to July 31, 2020, and a rating in excess of 10 percent thereafter, for the service-connected right hip limitation of extension, is denied. An initial compensable disability rating prior to July 31, 2020, and in excess of 10 percent thereafter for the service-connected right hip limitation of flexion, is denied. FINDINGS OF FACT 1. In a July 2020 Board of Veterans' Appeals (Board) legacy decision, the Board denied an effective date prior to May 4, 2015, for the grant of service connection for cervical strain (neck disability); but remanded the legacy appeal for an initial rating in excess of 10 percent for service-connected cervical strain. 2. In a November 2020 Department of Veterans Affairs (VA) Regional Office (RO) legacy rating decision (with notice provided on December 2, 2020), the RO granted a staged increased rating for the service-connected cervical spine strain (30 percent from September 18, 2020, and a 20 percent rating from October 26, 2020); and, the RO simultaneously issued a supplemental statement of the case denying higher ratings for the service-connected cervical spine strain on the same day and returned the case to the Board. 3. In a March 2021 legacy decision, the Board granted additional staged ratings for the cervical spine strain, 20 percent from February 26, 2020, and 30 percent from October 26, 2020; the RO subsequently implemented the Board grant in a March 2021 legacy rating decision. 4. On July 12, 2021, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal Notice of Disagreement (NOD), listing the November 2020 legacy rating decision, to include an appeal for an earlier effective date for the grant of service connection for cervical spine strain; and, for higher staged ratings for the cervical spine strain, in the Appeals Modernization Act (AMA) review system; the AMA NOD was received more than 60 days following the November 2020 supplemental statement of the case. 5. In July 2021, the Board erroneously docketed the November 2020 attempted AMA appeal for an earlier effective date for the grant of service connection for cervical spine strain; and, for higher staged ratings for the service-connected cervical spine strain both of which were decided in the legacy review system, resulting in a claims processing error by docketing an AMA appeal following a legacy rating decision. 6. For the entire period on appeal, the Veteran's service-connected left hip strain was not manifested by limitation of abduction with motion lost beyond 10 degrees or less. 7. Prior to July 31, 2020, the Veteran's service-connected left hip strain was not manifested by limitation of extension to 5 degrees or less; from July 31, 2020, the Veteran's service-connected left hip strain is assigned the maximum disability rating available under 38 C.F.R. § 4.71a, Diagnostic Code 5251. 8. Prior to July 31, 2020, the Veteran's service-connected left hip strain was not manifested by limitation of flexion to 45 degrees or less, and from July 31, 2020, it was not manifested by limitation of flexion to 30 degrees or less. 9. For the entire period on appeal, the Veteran's service-connected right hip strain was not manifested by limitation of abduction with motion lost beyond 10 degrees or less. 10. Prior to July 31, 2020, the Veteran's service-connected right hip strain was not manifested by limitation of extension to 5 degrees or less; from July 31, 2020, the Veteran's service-connected right hip strain is assigned the maximum disability rating available under 38 C.F.R. § 4.71a, Diagnostic Code 5251. 11. Prior to July 31, 2020, the Veteran's service-connected right hip strain was not manifested by limitation of flexion to 45 degrees or less, and from July 31, 2020, it was not manifested by limitation of flexion to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for dismissal of the invalid July 12, 2021, VA Form 10182 NOD as to the appeal for higher staged ratings and an earlier effective date for the grant of service connection for cervical strain are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2400, 3.2500, 19.2, 20.201, 20.202, 20.203. 2. For the entire period on appeal, the criteria for a rating in excess of 10 percent for the service-connected left hip limitation of adduction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 3. The criteria for a compensable disability rating prior to July 31, 2020, and in excess of 10 percent thereafter for the service-connected left hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 4. The criteria for a compensable disability rating prior to July 31, 2020, and in excess of 10 percent thereafter for the service-connected left hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 5. For the entire period on appeal, the criteria for a rating in excess of 10 percent for the service-connected right hip limitation of adduction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 6. The criteria for a compensable disability rating prior to July 31, 2020, and in excess of 10 percent thereafter for the service-connected right hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 7. The criteria for a compensable disability rating prior to July 31, 2020, and in excess of 10 percent thereafter for the service-connected right hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to June 2000. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a November 2020 legacy rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which is an agency of original jurisdiction (AOJ). In that decision, the RO granted service connection for right and left hip limitation of adduction, limitation of flexion, and limitation of extension, all effective from March 28, 2017; and, assigned initial 10 ratings each for right and left hip adduction, and assigned noncompensable ratings each for right and left hip limitation of flexion and extension. The November 2020 rating decision also granted increased staged ratings for the service-connected cervical spine strain (30 percent from September 18, 2020, and 20 percent from October 26, 2020. In a July 2021 VA Form 10182, Decision Review Request: Board appeal (notice of disagreement), the Veteran requested to appeal the November 2020 rating decision as to the downstream initial disability ratings assigned for the service-connected right and left hip limitation of adduction, flexion and extension. The Veteran also requested to appeal for higher staged ratings for the service-connected cervical spine strain, and he requested an earlier effective date of January 6, 2014, for the grant of service connection for cervical strain. As discussed in more detail below, the July 2021 NOD is a valid appeal in the AMA review system as to the initial disability ratings assigned for the service connected right and left hip limitation of adduction, flexion, and extension, because, although the November 2020 rating decision was issued in the legacy review system, the assignment of the initial disability ratings for the service-connected right and left limitation of adduction, flexion and extension are downstream issues following the legacy grant of service connection, but initially decided in the AMA review system. To the contrary, the increased staged ratings assigned for the service-connected cervical strain in the November 2020 rating decision were issued in the legacy system. As such, they cannot be appealed with an AMA VA Form 10182 NOD, as the Veteran's attorney attempted to do. Similarly, the attempt to appeal for an earlier effective date for the grant of service connection for cervical spine strain is also invalid, because a July 6, 2020, legacy Board decision denied an effective date prior to May 4, 2015, for the grant of service connection for cervical strain and that determination was not appealed to the United States Court of Appeals for Veterans Claims (CAVC or Court). As such the November 2020 attempted appeal for an earlier effective date for the grant of service connection for cervical strain amounts to a free-standing claim for an earlier effective date for the grant of service connection for cervical strain. As to the validly appealed issues of entitlement to higher initial ratings for the service connected right and left hip limitation of adduction, flexion, and extension, the Veteran selected the Evidence Review Docket. Therefore, the Board only considered the evidence of record at the time of the November 25, 2020, rating decision on appeal, as well as any evidence submitted by the Veteran or their representative with, or within 90 days from VA receipt of the VA Form 10182. 38 C.F.R. § 20.303. For an appeal in the AMA Evidence Submission docket, the Board is required to consider evidence submitted simultaneously with the VA Form 10182. 38 U.S.C. § 7113 (c)(2)(A). If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claim on appeal. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider in this decision, 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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Pertinent Procedural History By way of background, a July 2020 Board decision remanded the appeals for service connection for bilateral hip disability and a disability rating in excess of 10 percent for the service-connected cervical strain. The Board also denied an effective date prior to May 4, 2015, for the grant of service connection for the cervical strain (neck disability). The November 2020 legacy rating decision granted service connection for right and left hip disabilities effective from March 28, 2017, assigning initial 10 percent disability ratings each for right and left hip limitation of adduction; and, noncompensable disability ratings for right and left hip limitation of flexion and limitation of extension With respect to the service-connected cervical strain increased rating claim, the November 2020 legacy rating decision denied a rating in excess of 10 percent prior to September 18, 2020, granted a 30 percent disability rating from September 18, 2020, and a 20 percent disability rating from October 26, 2020, for the service-connected cervical strain. The rating decision indicated that the appeal for an increased rating for the service-connected cervical strain is not fully resolved and a Supplemental Statement of the Case (SSOC) was issued concurrently with that decision denying higher staged ratings for the service-connected cervical spine strain. The appeal for higher staged disability ratings for the service-connected cervical spine strain was subsequently returned to the Board in the legacy system. As the legacy grants of service connection for the right and left hip disabilities are considered a complete grant of benefits sought on appeal as to the claims for service connection, the legacy appeal for service connection for left and right hip disabilities was fully resolved, and any appeal as to the downstream issues of the effective date of service connection and/or the initial disability ratings assigned for the left and right hip disabilities pursuant to the November 2020 rating decision must be initiated in the AMA review system. In a March 2021 decision, still in the legacy system, the Board denied a compensable disability rating for the service-connected cervical spine disability prior to February 26, 2020, granted an increase to 20 percent from February 25, 2020 through September 17, 2020; denied a disability rating in excess of 30 percent from September 18, 2020 through October 25, 2020, and granted an increased disability rating of 30 percent effective from October 26, 2000. Regarding the hips, in a July 2, 2021, rating decision, the RO granted increased disability ratings of 10 percent each for the service-connected left and right hip limitation of extension, and, for the service-connected right and left hip limitation of flexion, all effective from July 31, 2020. Finally, the RO confirmed and continued the 10 percent disability ratings assigned for the right and left hip limitation of adduction. On July 12, 2021, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement or NOD), indicating disagreement with the November 2020 rating decision that, assigned the initial disability ratings for the service-connected left hip strain, assigned the higher staged disability ratings for the service-connected cervical neck strain; and, the NOD reflects a request for an effective prior to May 4, 2015 for the grant of service connection for cervical strain. Notably, the Veteran may file an AMA NOD as to any AMA decision issued within a year prior to filing the NOD. See Terry v. McDonough, 37 Vet. App. 1, 12-13 (2023). Thus, although the RO issued an interim rating decision on July 2, 2020, that granted additional staged increased ratings for the service-connected right and left hip disabilities as noted above, the July 12, 2021, AMA NOD is a valid appeal of the November 2020 rating decision insofar as a disagreement with the initial disabilities assigned for the right and left hip disabilities. In a May 2021 rating decision, the RO granted a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective January 1, 2020. In the Veteran's VA 21-8940 claim for a TDIU, the Veteran stated he was unable to work full-time as of March 2020 and that he was last employed full-time in March 2020. Thus, the issue is not raised by the record for the period on appeal prior to January 1, 2020, and the issue is not currently before the Board. Dismissal 1. The appeal for an effective date prior to May 4, 2015, for the service-connected cervical strain 2. The appeal for a disability rating in excess to 10 percent prior to February 26, 2020, in excess of 20 percent prior to September 18, 2020, in excess of 30 percent thereafter for the service-connected cervical strain The Veteran asserts that he is entitled to an increased rating and earlier effective date back to January 6, 2014, for his service-connected cervical strain. As will be explained below, the appeals must be dismissed as improperly docketed which was a claims processing error. By way of background, on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the AMA. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The legacy appeal system applied to decisions issued prior to the effective date of the AMA (i.e., prior to February 19, 2019). 38 C.F.R. § 19.2(d)(3). Legacy appeals were singled out as treated differently and the changes only applied if a claimant elected to participate in the new system either by (1) choosing to participate in VA's test program the Rapid Appeals Modernization Program (RAMP) prior to February 19, 2019, or (2) submitting VA Form 10182 after the issuance of a SOC or supplemental SOC (SSOC) after February 19, 2019. 38 C.F.R. § 19.2(d). Under the AMA framework, an appeal consists of a properly completed VA Form 10182 submitted to the Board within one year from the date that the RO, an agency of original jurisdiction (AOJ), mails the notice of the rating decision being appealed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.202, 20.203. A claimant with an appeal pending under the legacy review system after February 19, 2019, may elect to have his/her appeal reviewed under the AMA framework by timely opting-in to the AMA following the RO issuance of an SOC or supplemental statement of the case (SSOC). A valid opt-in following an SOC or an SSOC must be filed on VA Form 10182, which in turn must be received either within 60 days from the date that the AOJ mails the SOC or SSOC or within the remaining one-year period following the date on which the AOJ mailed the notification of the determination being appealed, whichever period ends later. 38 C.F.R. §§ 3.2400, 3.2500, 19.2(d). In this case, the Veteran's July 2021 VA Form 10182 was received more than 60 days after the issuance of the November 2020 SSOC and more than one year after the mailing of the notice of the September 2017 legacy rating decision that was appealed. As the July 2021 VA Form 10182 was received more than 60 days following the November 2020 legacy SSOC, it is not a valid opt-in to the AMA review system from the legacy review system. See 38 C.F.R. §§ 19.53, 3.2400, 3.2500, 20.302. Additionally, the November 2020 rating decision was not an initial AMA rating decision on increased ratings for the service-connected cervical strain, rather it was a legacy rating decision issued following a legacy Board remand that partially granted benefits sought in the legacy review system. Therefore, the November 2020 rating decision was not an eligible decision from which to opt-in to the AMA review system. Furthermore, as noted above, the Board, in its July 2021 decision, denied an effective date prior to May 4, 2015, for the grant of service connection for cervical strain. The determination was not appealed to the Court, and the July 2021 legacy Board decision is final. Accordingly, the July 12, 2021, attempt to appeal for an earlier effective date of January 6, 2014, for the grant of service connection for cervical strain amounts to an impermissible free-standing claim for an earlier effective date. The Court of Appeals for Veterans Claims (Court) has held that there can be no freestanding claim for an earlier effective date, and that once an effective date has become final (by way of an RO or Board decision), a claimant's only recourse is to have the final decision revised on the grounds of a clear and unmistakable error (CUE). Rudd v. Nicholson, 20 Vet. App. 296 (2006); 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400-1404. When such a freestanding claim is raised, such an appeal must be dismissed. Rudd, 20 Vet. App. at 299-300 (when an appellant claims earlier effective date but does not allege CUE in the prior final decision, the appeal should be dismissed because the Board is without legal authority to adjudicate the claim on a basis other than CUE). Despite the untimely opt-in attempt, and the attempt at a free-standing effective date claim, the Board inadvertently docketed the Veteran's appeals, and this action unfortunately constituted a claims processing error. Therefore, the Board must dismiss the erroneously docketed AMA appeals for an earlier effective date for the grant of service connection for cervical strain and for higher staged ratings for the cervical strain due to such procedural defect. In summary, the appeal for an earlier effective date for the grant of service connection for a cervical strain was denied in a July 2020 legacy Board decision. The Veteran did not appeal that decision to the Court. Furthermore, the appeal for increased staged ratings for the service-connected cervical strain was continued in the legacy review system and was decided in an unappealed March 2021 Board decision. Thus, this dismissal does not impact the Veteran's appellate rights in the matter. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202(1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202, 206-8 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code. Musculoskeletal VA examinations, to be adequate, must address particular issues when they are practicable and medically possible, to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). 1. Entitlement to an initial disability rating in excess of 10 percent for the service-connected left hip limitation of adduction 2. Entitlement to an initial compensable disability rating for the service-connected left hip limitation of extension prior to July 31, 2020, and in excess of 10 percent from July 31, 2020, 3. Entitlement to an initial compensable disability rating for the service-connected left hip limitation of flexion prior to July 31, 2020, and in excess of 10 percent from July 31, 2020, 4. Entitlement to an initial disability rating in excess of 10 percent for the service-connected right hip limitation of adduction 5. Entitlement to an initial compensable disability rating for the service-connected right hip limitation of extension prior to July 31, 2020, and in excess of 10 percent from July 31, 2020, 6. Entitlement to an initial compensable disability rating for the service-connected right hip limitation of flexion prior to July 31, 2020, and in excess of 10 percent from July 31, 2020, The Veteran asserts that his service-connected left and right hip strain limitation of extension, limitation of flexion, and limitation of adduction warrant higher disability ratings than currently assigned. The Veteran, through his representative, argued that a private disability benefits questionnaire (DBQ) dated May 5, 2021, supports higher disability ratings. The private DBQ was submitted on July 12, 2021, with the Veteran's VA Form 10182 Board Appeal and thus will be considered. 38 U.S.C. § 7113 (c)(2)(A). The Veteran's left and right hip strains are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5251 for limitation of adduction as 10 percent disabling from March 27, 2017. Both his left and right hip strain limitation of extension are rated as noncompensable from March 28, 2017, and as 10 percent disabling from July 31, 2020, under Diagnostic Code 5252. His left and right hip strain limitation of flexion are rated as noncompensable from March 28, 2017, and as 10 percent disabling from July 31, 2020, under Diagnostic Code 5253. 38 C.F.R. § 4.71a. The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments are inapplicable in this case because the effective date of the amended regulations is after the record on appeal closed, which as noted above, is November 25, 2020. Diagnostic 5251 provides a maximum 10 percent disability rating when there is evidence of extension limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. 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. Diagnostic Code 5253 provides a 10 percent disability rating for limitation of rotation, cannot toe-out more than 15 degrees of the affected leg. A 10 percent disability rating is also warranted for limitation of adduction of cannot cross legs. A maximum 20 percent disability rating is warranted when there is evidence of limitation of abduction in which the degrees of motion lost is beyond (exceeds) 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. In Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court of Appeals for Veterans Claims (CAVC or Court) held that in the absence of a medical diagnosis of ankylosis, a claimant may still receive a rating under ankylosis based on the functional equivalent of ankylosis (i.e., the claimant's symptoms sufficiently resemble ankylosis despite the absence of a formal diagnosis). In short, if a claimant's functional loss "is the functional equivalent of ankylosis," a higher rating may be warranted on that basis. Id. at 11. Entitlement to separate or higher disability ratings under Diagnostic Codes 5250 (which evaluated ankylosis), 5254 (flail hip), and 5255 (impairment of femur) are not for application because there is no competent medical or lay evidence that the Veteran has ankylosis of the left hip or flail hip joint, nor is there competent evidence of any fracture or malunion of the Veteran's left femur. During an October 2020 VA examination, the Veteran describe worsening pain over the years, no surgery, and current symptoms reported as stiffness. The Veteran stated he has flare-ups of the left and right hips that occur monthly, last one to two days, and are typically precipitated by physical activity and alleviated by rest. The examiner noted functional loss as stiffness, limited range of motion, difficulty with lifting heavy items, prolonged standing, walking, jogging or climbing stairs. Initial range of motion for both the left and right hips show flexion at 110 degrees, extension at 25 degrees, abduction at 40 degrees, adduction at 20 degrees, external rotation at 55 degrees, and internal rotation at 35 degrees. The examiner noted the Veteran can cross his legs but there is pain during all range of motion testing. The Veteran was noted as having pain on weight-bearing but no crepitus. Observed repetitive use showed flexion at 100 degrees, extension at 20 degrees, abduction at 35 degrees, adduction at 15 degrees, external rotation at 50 degrees, and internal rotation at 30 degrees. Factors that cause functional loss were pain and lack of endurance, and the Veteran was reported as being unable to cross his legs. Repeated use over time showed flexion at 90 degrees, extension at 15 degrees, abduction at 30 degrees, adduction at 10 degrees, external rotation at 45 degrees, and internal rotation at 25 degrees. Factors that cause functional loss were pain and lack of endurance, and the Veteran was reported as being unable to cross his legs. Estimated range of motion during a flare-up was reported as flexion at 80 degrees, extension at 10 degrees, abduction at 25 degrees, adduction at 5 degrees, external rotation at 40 degrees, and internal rotation at 20 degrees. Factors that cause functional loss were pain and lack of endurance, and the Veteran was noted as being unable to cross his legs. Strength was noted as normal. There was no muscle atrophy and no ankylosis. The examiner noted no malunion or nonunion of the femur nor a flail hip joint or leg discrepancy. The examiner reported there was pain on passive range of motion and non-weight bearing for both hips. In the Veteran's May 2021 private DBQ, the Veteran stated he has flare-ups twice a week that are often after long periods of standing, lying, or walking. The examiner noted functional loss as pain during squatting, standing, walking, and bending and that the Veteran feels less than because he thinks he should be able to do normal things. Initial range of motion for the left hip show flexion at 20 degrees, extension at 10 degrees, abduction at 25 degrees, adduction at 20 degrees, external rotation at 15 degrees, and internal rotation at 25 degrees. The examiner noted the Veteran cannot cross his legs and there is pain during all range of motion testing and weight-bearing. The examiner remarked that the Veteran has trouble sitting or rising without assistance and there was objective evidence of crepitus. Observed repetitive use showed flexion at 20 degrees, extension at 10 degrees, abduction at 20 degrees, adduction at 10 degrees, external rotation at 15 degrees, and internal rotation at 25 degrees. Factors that cause functional loss were pain and weakness, and the Veteran was reported as being unable to cross his legs. Repeated use over time showed flexion at 20 degrees, extension at 10 degrees, abduction at 15 degrees, adduction at 10 degrees, external rotation at 15 degrees, and internal rotation at 20 degrees. Factors that cause functional loss were pain and weakness. Estimated range of motion during a flare-up was reported as flexion at 20 degrees, extension at 10 degrees, abduction at 20 degrees, adduction at 10 degrees, external rotation at 15 degrees, and internal rotation at 20 degrees. Factors that cause functional loss were pain and weakness. Additional factors of functional loss were described as less movement than normal, weakened movement, disturbance of locomotion, interference with sitting, and interference with standing. Initial range of motion for the right hip show flexion at 20 degrees, extension at 10 degrees, abduction at 30 degrees, adduction at 20 degrees, external rotation at 15 degrees, and internal rotation at 10 degrees. The examiner noted the Veteran cannot cross his legs and there is pain during all range of motion testing except abduction and internal rotation and on weight-bearing. The examiner remarked that adduction heightens sensitivity and there was objective evidence of crepitus. Observed repetitive use showed flexion at 10 degrees, extension at 10 degrees, abduction at 30 degrees, adduction at 10 degrees, external rotation at 15 degrees, and internal rotation at 10 degrees. The Veteran was reported as being unable to cross his legs. Repeated use over time showed flexion at 10 degrees, extension at 10 degrees, abduction at 20 degrees, adduction at 0 degrees, external rotation at 0 degrees, and internal rotation at 10 degrees. Factors that cause functional loss were pain and weakness and the Veteran cannot cross his legs. Estimated range of motion during a flare-up was reported as flexion at 10 degrees, extension at 10 degrees, abduction at 20 degrees, adduction at 10 degrees, external rotation at 15 degrees, and internal rotation at 10 degrees. Factors that cause functional loss were pain and weakness and the Veteran cannot cross his legs. Additional factors of functional loss for both hips were described as less movement than normal, weakened movement, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength for both hips was recorded as three of five for flexion, extension, and abduction; however, the examiner noted this was due to his radiculopathy. The examiner stated there was muscle atrophy that he described as likely due to a combination of radiculopathy and the claimed condition. The examiner noted there was no ankylosis. The Veteran is noted as having a leg length discrepancy that the examiner described as due to the right ankle fracture that healed poorly. VA treatment records and private treatment records do not show additional range of motion testing. Based on the above, prior to July 31, 2020, there is no basis to assign a disability rating higher than the 10 percent rating currently assigned for the Veteran's left or right hip strain limitation of adduction, or a compensable disability rating for the service-connected left or right hip strain limitation of extension or flexion. Neither the October 2020 VA examination show the Veteran's limitation of extension is limited to 5 degrees nor does either examination show the Veteran's limitation of abduction manifesting as motion lost beyond 10 degrees. For limitation of flexion, there is a significant difference between the October 2020 VA examination measurements and the May 2021 private DBQ. The VA examination records the Veteran's flexion between 110 degrees and down to 80 degrees during flare-ups. Whereas the private examiner records flexion as consistently at 20 degrees for the left hip and only changes from 20 degrees to 10 degrees in the right hip for repeated use and flare-ups but not in repeated use over time. The private examiner notes the other range or motion measurements for extension, abduction, adduction, external rotation, and internal rotation all change after repeated use, repeated us over time, and the estimation of flare-ups. The private examiner also described the functional loss as impacting squatting, bending, and sitting, which appears at odds with no change in the range of motion measurements recorded for flexion from the initial range of motion to the estimates for flare-ups. The private examination is therefore less probative than the October 2020 VA examination due to its internal inconsistency for the range of motion measurements for flexion. Prior to July 31, 2020, based on the range of motion measurements of flexion in the October 2020 VA examination, there is no evidence that the limitation of flexion is limited to 45 degrees such that a compensable disability rating can be assigned for either hip. There is no additional evidence in the record showing a more limited range of motion testing nor the functional equivalent thereof to support a higher disability rating than currently assigned for either hip. VA treatment records and private treatment records do not show treatment for a left or right hip strain. Furthermore, the private examiner attributed the Veteran's loss of muscle strength to his radiculopathy. The Veteran's right lower extremity sciatica is already service connected and currently on appeal to the Board in conjunction with his claim for an increased rating of his service-connected lumbosacral strain. In conclusion, for the entire period on appeal, the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 10 percent for left and right hip strain limitation of adduction. Prior to July 31, 2020, the evidence of record persuasively weighs against the Veteran's appeal for a compensable disability rating for the service-connected left and right hip strain limitation of extension. The July 2021 rating decision granted the 10 percent disability rating effective July 31, 2020. The Board will not disturb this favorable finding. This rating is the maximum rating available under 38 C.F.R. § 4.71a, Diagnostic Code 5251. Prior to July 31, 2020, the evidence of record persuasively weighs against the Veteran's appeal for a compensable disability rating for the service-connected left and right hip strain limitation of flexion. The July 2021 rating decision that granted the 10 percent disability rating effective July 31, 2020, for the Veteran's service-connected left and right hip strain limitation of flexion, was based on a VA examination outside of the current appeal's evidentiary window. The Board will not disturb that favorable finding. Nevertheless, there is no additional competent evidence to establish entitlement to a disability rating in excess of 10 percent disability rating for the service-connected left or right hip strain limitation of flexion. As the evidence of record persuasively weighs against the claims, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robinson, C. B. 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.