Citation Nr: 0812677 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 05-39 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Whether the reduction in the rating assigned for the veteran's service-connected status post total right hip replacement due to rheumatoid arthritis from 60 percent to 30 percent, effective August 1, 2005, was proper. 2. Entitlement to a 100 percent disability rating for the year following the veteran's total right hip replacement surgery. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Rebecca N. Poulson, Associate Counsel INTRODUCTION The veteran had active service from March 1947 to March 1967. This matter is now before the Board of Veterans' Appeals (Board) pursuant to a May 2005 rating decision from the Winston-Salem, North Carolina, Regional Office (RO). An appeal to the Board was perfected. In November 2006, the veteran and his wife testified at a Travel Board hearing before the undersigned Veterans Law Judge. During the hearing, the veteran submitted additional evidence along with a waiver of initial RO consideration. A transcript of the hearing is associated with the claims folder. On appeal in February 2007, the Board remanded the case for further development, to include obtaining VA treatment records to determine where and when the veteran's total right hip replacement surgery was performed, and clarifying why the veteran was not awarded a 100 percent disability rating for the year following his surgery. The RO provided another SSOC in November 2007. Pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007), this case had been advanced on the Board's docket. Other Matters In October 2005, the veteran filed service connection claims for depression, secondary to his right hip disability, and rheumatoid arthritis in his shoulders, left hand, wrists, left knee, back, ankles, and feet. He also filed increased rating claims for his right hand and hammertoe disabilities. The RO denied the claims in a May 2006 rating decision. The veteran, however, failed to file an NOD. Accordingly, this decision qualifies as a "final" decision within the meaning of 38 U.S.C.A. § 7105(c). Because the Board determines that the AMC failed to comply with its February 2007 remand order, the issue concerning the 100 percent disability rating is again REMANDED to the RO via the remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required on his part. FINDINGS OF FACT 1. A January 2005 rating decision reflects that the RO proposed a reduction of the evaluation for the status post total right hip replacement due to rheumatoid arthritis from 60 to 30 percent. 2. A May 2005 rating decision reflects that, after complying with the due process provisions applicable to a rating reduction, the RO reduced the evaluation for the service- connected status post total right hip replacement due to rheumatoid arthritis from 60 to 30 percent. 3. The veteran's hip disability is manifested by markedly severe residual weakness, pain, and limitation of motion; painful motion or weakness such as to require the use of crutches is not shown. 4. The veteran is service connected for status post total right hip replacement due to rheumatoid arthritis, rated as 70 percent disabling; right hand rheumatoid arthritis, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and status post operative hammertoe deformities, bilateral hearing loss, and history of otitis media, all rated as zero percent disabling; his combined disability rating amounts to 78 percent. 5. The veteran's service-connected disabilities are of such severity as to render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Restoration of the 60 percent rating for status post total right hip replacement due to rheumatoid arthritis is warranted; the criteria for a 70 percent rating for a right hip fracture with arthritis status post total left hip replacement have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 and West Supp. 2006); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.40, 4.45, 4.71, 4.71a, Diagnostic Code 5054 (2007). 2. The requirements for a total disability rating for compensation based on individual unemployability (TDIU) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.19 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with the claim. In the instant case, the Board finds that VA fulfilled its duties to the veteran under the VCAA. As discussed in more detail below, sufficient evidence is of record to grant the TDIU claim. Therefore, no further development is needed with respect to this issue. a. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the November 2004 and July 2005 letters sent to the veteran by the RO adequately apprised him of most of the information and evidence needed to substantiate the claim, and of the notice this correspondence failed to provide, no prejudice to the veteran resulted. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (outlining VCAA notice requirements); Beverly v. Nicholson, 19 Vet. App. 394 (2005) (same). In addition, during the pendency of this appeal, on March 3, 2006, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. The November 2004 and July 2005 letters from the RO satisfy most of these mandates. They informed the veteran about the type of evidence needed to support his claim for an increase in his right hip evaluation, namely, proof that this disability had grown in severity. This correspondence clearly disclosed VA's duty to obtain certain evidence for the veteran, such as medical records and records held by any Federal agency, provided the veteran supplied enough information to enable their attainment. They made clear that although VA could assist the veteran in obtaining these records, he carried the ultimate burden of ensuring that VA received all such records. The letters additionally apprised the veteran that VA would schedule a medical examination. They also specifically asked the veteran to provide VA with any medical reports that he had. The Board thus finds that the veteran received notice of the evidence needed to substantiate his higher rating claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), the Court held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, notice of the disability rating and effective date elements was not provided until March 2006, after the initial rating decision. This is error and presumed prejudicial to the appellant unless VA can demonstrate otherwise. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, the Board finds that there is no prejudice to the veteran in this Dingess timing error because the claim was subsequently readjudicated in November 2007 and VA sent the appellant a Supplemental Statement of the Case dated the same notifying him of the actions taken and evidence obtained or received. Essentially, the veteran has not been deprived of information needed to substantiate his claim and the very purpose of the VCAA notice has not been frustrated by the timing error here. The Board acknowledges a recent decision from the Court that provided additional guidance of the content of the notice that is required to be provided under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increased compensation benefits. See Vazquez-Flores v. Peake, No. 05- 355 (U.S. Vet. App. Jan. 30, 2008). In that decision, the Court stated that for an increased compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask the VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at least general notice of that requirement to the claimant. See Vazquez-Flores v. Peake, No. 05-355, Slip op at 5-6. While the veteran was clearly not provided this more detailed notice, the Board finds that the veteran is not prejudiced by this omission in the adjudication of his increased rating claim. In this regard, during the course of this appeal the veteran has been represented at the RO and before the BVA by a National Veterans Service Organization (VSO) recognized by the VA, specifically the American Legion, and the Board presumes that the veteran's representative has a comprehensive knowledge of VA laws and regulations, including particularly in this case, those contained in Part 4, the Schedule for Rating Disabilities, contained in Title 38 of the Code of Federal Regulations. In addition, the November 2005 Statement of the Case contained a list of all evidence considered, a summary of adjudicative actions, included all pertinent laws and regulation, including the criteria for evaluation of the veteran's disability, and an explanation for the decision reached. The Board also notes that the representative's February 2008 brief appears to request a restoration of the 60 percent disability rating only, and that the 70 percent disability rating awarded herein exceeds the 60 percent rating. Furthermore, the veteran's November 2006 hearing testimony indicates that he is familiar with the criteria for a 90 percent disability rating, which is the maximum award available under Diagnostic Code 5054. In the Board's opinion all of this demonstrates actual knowledge on the part of the veteran and his representative of the information that would have been included in the more detailed notice contemplated by the Court in the Vazquez- Flores case. As such, the Board finds that the veteran is not prejudiced based on this demonstrated actual knowledge. b. Duty to Assist VA has also satisfied its duty to assist the veteran under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Service medical records, VA treatment records, and private treatment records have been associated with the claims folder. Additionally, the veteran was afforded several VA examinations. The veteran exercised his right to a hearing and provided sworn testimony before the undersigned Veterans Law Judge in November 2006. The Board finds that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the veteran, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the veteran, and thus, no additional assistance or notification was required. The veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, 4 Vet. App. at 392-94. II. Rating Reduction The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. In addition, the veteran must be given 60 days to submit additional evidence and request a predetermination hearing. See 38 C.F.R. § 3.105(e). If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. In the instant case, the RO afforded the veteran 60 days to contest the proposed reduction through additional evidence and opportunity to be heard, and that through the decision effectuating the reduction assigned as an effective date for the reduction to 30 percent, consistent with the specified timeframe. Hence, there was compliance with the procedural due process requirements of 38 C.F.R. § 3.105(e) for reduction in compensation. The veteran's disability was initially rated under Diagnostic Codes 5002-5250 in an August 1993 decision. The May 2005 decision rated the veteran's disability under Diagnostic Codes 5002-5054. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2007). Under the provisions of Diagnostic Code 5002, rheumatoid (atrophic) arthritis, a 20 percent evaluation is warranted for rheumatoid arthritis when the diagnosis is well established and there are one or two exacerbations a year. A 40 percent evaluation requires the presence of symptom combinations productive of a definite impairment of health, objectively supported by examination findings, or of incapacitating exacerbations occurring three or more times a year. A 60 percent evaluation is warranted for rheumatoid arthritis when it results in weight loss and anemia productive of a severe impairment of health or in severely incapacitating exacerbations occurring four or more times a year or a lesser number of exacerbations if they occur over prolonged periods. A 100 percent evaluation requires constitutional manifestations associated with active joint involvement which are totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Diagnostic Code 5002 further provides that chronic residuals such as limitation of motion or ankylosis, favorable or unfavorable, should be rated under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes a 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A note to Diagnostic Code 5002 states that the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. Instead, the higher evaluation should be assigned. Diagnostic Code 5054 provides the criteria for hip replacement (prosthesis). The minimum rating provided under this diagnostic code is 30 percent. A 50 percent rating is assigned for moderately severe residuals of weakness, pain or limitation of motion. Markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis merits a 70 percent evaluation. A 90 percent evaluation is assigned following implantation of prosthesis with painful motion or weakness such as to require the use of crutches, and a 100 percent evaluation is to be assigned for prosthetic replacement of the head of the femur or of the acetabulum for one year following implantation of a prosthesis. Normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. There is no evidence of ankylosis in the medical records. Therefore, 38 C.F.R. § 4.17a, Diagnostic Code 5250 [hip, ankylosis of] is not applicable. The veteran filed his claim for a higher disability rating in September 2004. VA medical records submitted by the veteran indicate that in March 2004, he complained of right hip pain and indicated that he took Vioxx and Darvocet, albeit sparingly because he did not want "to get hooked." The veteran was afforded a VA joints examination in January 2005. The examiner indicated that the claims file was not available for review. The veteran complained of intermittent, mild right hip pain on a daily basis. He indicated that his main problem was an increase in pain with cold, wet weather. He denied any instability, locking of the joint, or dislocation. He also denied using a brace or cane. The pain was alleviated with prescription and over-the- counter medication. The examiner noted that there were no constitutional symptoms of inflammatory arthritis, and that he could find no record that the veteran had ever taken rheumatoid drugs. The veteran reported that he was able to do his activities of daily living "okay." He could walk half a mile on flat ground, exercise, and do chores. Upon examination, the clinician noted a healed scar with no adherence, breakdown, or dehiscence. The veteran was able to flex the hip to about 90 degrees. The doctor indicated that the veteran "says he has been told not to flex it any more to prevent it from slipping out of joint." Abduction was to about 40 degrees, at which point he complained of stiffness. Adduction was to 20 degrees. External rotation was to about 50 degrees with no pain. Internal rotation was to about 40 degrees with no pain. There was no change in the findings with repetitive motion. Motor and sensory examinations of the right lower extremity were normal. The diagnosis was degenerative joint disease of the right hip status post right total hip replacement with residuals. With respect to his feet, the veteran complained of pain and stiffness that was worse in cold, wet weather. There was more pain with weightbearing and ambulation, although the veteran indicated that he could walk at least half a mile on the flat with no problems. No flare-ups were reported. The pain was alleviated with prescription and over-the-counter medication. He denied using crutches or a cane. He was able to exercise daily, do chores around the house, and pleasure activities. The veteran reported that he had been retired since 1984 as a truck driver. Upon examination, the doctor noted a well-healed, slightly hypopigmented, three centimeter long scar on the left foot. There was no tissue breakdown, elevation, depression, or tenderness. The veteran had full range of motion of all toes bilaterally. There was no change with repetitive motion. Motor and sensory examinations were normal. There was no pain on motion, swelling, redness, tenderness, edema, or instability. Sensation and strength were normal. The diagnosis was hammer toe deformities of the second and third toes bilaterally status post osteotomy with residuals. The doctor opined that the veteran "should be able to do some kind of light activity and any kind of sedentary activity." With respect to the right hand, the veteran reported having increased pain and stiffness in cold, wet weather and with "excessive use." He stated that his hands felt swollen "a lot of the time." He had no problems with activities of daily living. He denied using a brace or splint. The pain was alleviated with over-the-counter and prescription medication. Upon examination, the doctor noted that the veteran held his hand in slight flexion. He could extend the fingers and all the joints to zero degrees. He had a slight limitation of the index and middle finger MP joints to about 60 degrees. The ring and small finger joints could be bent to 90 degrees. He could touch the fourth and fifth fingertips to the midpalmar crease with discomfort. He was unable to touch the fingertips of the index and middle finger to the midpalmar creases because of the pain and stiffness of the MP joints. The PIP and DIP joints could be flexed to 90 degrees with no real problem. There was no redness, swelling, or tenderness noted of any of the joints. The MP joints had some mild hypertrophy. The thumb could be adducted to 50 degrees. He could bend the MP and IP joints to 60 degrees. The veteran was able to touch the tip of the finger to the base of the small finger. However, he was unable to touch the thumb tip to the base of the small finger. There was no change with repetitive motion. The grip strength in the right hand was 50 percent of the left hand. The sensation examination was normal. The diagnosis was rheumatoid arthritis with residuals. The doctor noted that "[the veteran] dresses and undresses himself easily using the right hand with normal dexterity, even though he has decreased grip strength." He opined that the veteran was capable of any kind of sedentary work and mild active work. On the basis of this VA examination report, the RO proposed to reduce the evaluation of the veteran's service-connected status post total right hip replacement due to rheumatoid arthritis from 60 percent to 30 percent in a January 2005 rating decision. A May 2005 RO decision reduced the rating to 30 percent. In a May 2005 statement, the veteran disagreed with the rating reduction. The veteran submitted to another VA joints examination in November 2005 with the same examiner who had conducted the January 2005 examination. This time the claims file was available for review. With respect to his right hip, the veteran continued to complain of pain that was aggravated by cold, wet weather. Although the veteran reported that he "is very much better than he was prior to having the surgery," he indicated that pain medication provided "no real relief." The veteran reported that he was able to walk 150 yards downhill from his house to the mailbox. He denied any instability, dislocation, or locking of the joint. He also denied using a cane or brace. The veteran reported that he stopped working after his hip replacement. The examiner again noted that there were no constitutional symptoms of inflammatory arthritis, and that he could find no record that the veteran had ever taken rheumatoid drugs. Upon examination of the right hip, the clinician noted a healed scar with a slight decrease in tissue under the right hip. There was no elevation, depression, or loss of tissue. The veteran was able to flex the hip to about 110 degrees. The doctor again indicated that the veteran "has been told not to flex it anymore than that because of the risk of getting it to slip out of joint." Abduction was to about 45 degrees, at which point he complained of pain. Adduction was to 25 degrees. External rotation was to about 60 degrees with no pain. Internal rotation was to about 40 degrees with pain at 30 degrees. There was no change in the findings with repetitive motion. Motor and sensory examinations were "essentially unremarkable." The veteran walked normally. X-rays revealed that the hip prosthesis was in place with no evidence of loosening. The diagnosis was degenerative joint disease of the right hip status post total hip replacement. As for the veteran's employability, the doctor stated: "Because of his limitation of his walking ability, he should not do any kind of strenuous activity; however, he could do sedentary activity in my opinion." With respect to his feet, the veteran reported that he continued to experience pain but that his feet were a "minor problem." Upon examination, the doctor reported that the veteran's feet were "essentially unchanged" from the previous examination. He noted very well-healed scars, with very slight hypopigmentation on the left foot scar with no tissue breakdown, elevation, depression, or tenderness. There was normal range of motion, with no change or pain. There was no change with repetitive motion. The motor and sensory examinations were normal. The skin and vascular examinations were unremarkable. The clinician also noted that while the toes were held in a slightly flattened position when the veteran was in a standing position, they curled down and touched the floor when he walked. The diagnosis was hammertoe deformities of the second and third toes bilaterally status post osteotomy with residuals, unrelated to rheumatoid arthritis. As for the veteran's employability, the doctor stated: "The veteran would not be able to do any kind of strenuous work that required standing or walking. However, if he could do some kind of sedentary work, I do not see any reason why he could not do that." With respect to his right hand, the veteran reported that he had "symptoms pretty much all of the time." He indicated that the pain and stiffness are worse in cold, wet weather. He denied using a splint or brace. The pain was alleviated with prescription and over-the-counter medication. The veteran, who is right handed, complained that he had trouble using his right hand because he has trouble holding things for any length of time. Upon examination, the doctor noted that the veteran held his right hand in very slight flexion. He could extend the fingers and all the joints to zero degrees. He had a slight limitation of the index and middle finger MP joints to about 60 degrees. The ring and small finger joints could be bent to 90 degrees. He could touch the fourth and fifth fingertips to the midpalmar crease with discomfort. He was unable to touch the fingertips of the index and middle finger to the midpalmar creases because of the pain and stiffness of the MP joints. The PIP and DIP joints could be flexed to 90 degrees with no real problem. There was no redness, swelling, or tenderness noted of any of the joints. The MP and DIP joints had some mild hypertrophy. The thumb could be adducted to 50 degrees. He could bend the MP joint to 65 degrees and the IP joint to 60 degrees. The veteran was able to touch the tip of the finger to the base of the small finger. There was no change with repetitive motion. The grip strength in the right hand was 50 percent of the left hand. The sensation and vascular examinations were normal. The diagnosis was rheumatoid arthritis with residuals. The doctor stated that the veteran "really has no problems in using the hands to dress or to do other activities of daily living." Although there was decreased grip strength, the doctor noted that "he seems to be able to do things that require a fair amount of dexterity, such as buttoning his clothes, fastening his clothes, etc." He opined that the veteran was capable of sedentary or mild active work using the right hand. During his November 2006 hearing, the veteran testified that he continues to have right hip pain, which is aggravated by cold weather. He reported waking up several times at night because of the pain. He stated that "sometimes I can't move my leg." The veteran also reported stumbling and having trouble getting up out of a chair. When going up and down stairs, he has to "two-step it." He indicated that he can walk on uneven ground with difficulty, however, he can only walk 20 to 25 yards before having to rest. He can sit for 20 to 30 minutes before having to move around. The veteran testified that he could not help much with chores. When asked by his representative if he used a cane, brace or "anything," the veteran replied "No. No, I try to maintain my balance and carry on." He stated that his doctors had discussed replacing the hip again, but that "they don't think it's bad enough to do it" and that "my age has got a lot to do with it." He indicated that he had not worked in five years, and that he previously worked part- time as a packer for a moving company. The veteran's wife testified that his condition had deteriorated "a great deal" in the past year. She stated that he limps and favors his right leg when walking. Getting up out of chairs and climbing steps is "very painful for him and very slow." She further stated that he takes "many [prescription] pain pills during the day because the pain is so great." The veteran's wife indicated that she occasionally helps him get dressed. She also testified that he quit working because he was having trouble getting up off the floor. Initially, the Board notes that a higher rating is not applicable under Diagnostic Code 5002 because there is no evidence of incapacitating exacerbations three or more times a year to support a discovery of a definite impairment of health. Upon close review of the evidence, and with resolution of reasonable doubt in the veteran's favor, the Board concludes that markedly severe residual weakness and limitation of motion are shown, warranting an increased, 70 percent, rating for the right hip disability under Diagnostic Code 5054. The 2005 VA examinations indicate that the veteran's range of motion is only somewhat limited by pain and voluntary restriction on the advice of doctors to avoid dislocating the right hip prosthesis. On the other hand, the Board finds the testimony of the veteran and his wife both persuasive and credible. The veteran reported that his right hip pain affects his ability to walk and sit, while his wife stated that he limps and favors the right leg when walking. These manifestations are clear indicia of the functional impairment associated with substantial weakness. It is noteworthy that the veteran takes a prescribed synthetic narcotic medication which he reports provides only partial relief. However, we do not find that the evidence supports a rating in excess of 70 percent. The evidence doesn't show that the veteran has weakness or limitation of motion of such severity as to require the use of crutches; consequently, a 90 percent schedular rating also is not warranted. The Board has also considered the DeLuca factors in assessing the degree of disability, but finds that additional compensation beyond that awarded based on functional loss is not warranted. The Board has also considered whether the veteran is entitled to a separate disability rating for his residual post- operative scar of the right hip. See Esteban v. Brown, 6 Vet. App. 259 (1994). Examinations of the surgical scar from the hip replacement reveal that it is superficial, well healed, nontender, stable, and that there is no clinically ascertainable functional limitation. A separate compensable evaluation is therefore not warranted for any scarring incident to the right hip replacement. Extraschedular Ratings As required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), the Board has considered the potential application of other provisions of Title 38 of the Code of Federal Regulations, including § 3.321(b)(1), which governs extraschedular ratings. The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). There has been no showing by the veteran that his service-connected status post total right hip replacement due to rheumatoid arthritis has necessitated frequent hospitalizations beyond that contemplated by the rating schedule or has caused a marked interference with employment or other such factors that render impractical the application of the standard rating criteria. In the absence of such factors, the criteria for submission for assignment of an extraschedular rating for his right hip disability pursuant to 38 C.F.R. § 3.321(b)(1) are not satisfied. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). III. Total Disability Ratings Based on Individual Unemployability (TDIU) The veteran contends that his service-connected disabilities, in addition to his age and educational background, preclude him from obtaining or maintaining substantially gainful employment. 38 C.F.R. § 4.15 governs total disability ratings and states that such a disability "will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. . . ." 38 C.F.R. § 4.15; accord 38 C.F.R. § 3.340(a). A permanent total disability "shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person." 38 C.F.R. § 4.15; see also 38 C.F.R. § 3.340(b). With respect to total disability ratings based on individual unemployability, 38 C.F.R. § 4.16(a) provides that "[t]otal disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more." 38 C.F.R. § 4.16(a); accord Bowling v. Principi, 15 Vet. App. 1, 6 (2001) (outlining regulations relating to TDIU); see 38 C.F.R. §§ 3.340, 3.341. In determining whether a veteran should receive TDIU, the Board may consider the veteran's level of education, special training, and previous work experience, but may not consider his age or the impairment caused by any non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16 ("[T]he existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected . . . disabilities are met and in the judgment of the rating agency such . . . disabilities render the veteran unemployable"), 4.19 ("Age . . . is a factor only in evaluation of disability not resulting from service, i.e., for the purposes of pension"); accord Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (In determining whether appellant is entitled to a total disability rating based upon individual unemployability, neither appellant's non-service-connected disabilities nor his advancing age may be considered. . . . The Board's task was to determine whether there are circumstances in this case apart from the nonservice- connected conditions and advancing age which would justify a total disability rating based on unemployability") (Emphasis omitted). VA regulations do not define the terms "substantially gainful occupation," however, the Court has interpreted this provision to encompass the ability to earn a "living wage." Bowling, 15 Vet. App. at 7 (noting that "[t]he term 'substantially gainful occupation' is not defined by VA regulation; however, the Court has held that the term refers to, at a minimum, the ability to earn 'a living wage.' Moore v. Derwinski, 1 Vet. App. 356, 358 (1991)"). That is, a veteran has a "substantially gainful occupation" when that enterprise "'provides annual income that exceeds the poverty threshold for one person.'" Bowling, supra, quoting Faust v. West, 13 Vet. App. 342, 355-56 (2000); accord 38 C.F.R. § 4.16(a) (stating that "[m]arginal employment shall not be considered substantially gainful employment," and that such employment exists when the "veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Consensus, as the poverty threshold for one person"). Thus, the central inquiry in determining whether a veteran may receive a total rating based on individual unemployability is whether the service- connected disabilities alone are so severe as to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Accordingly, the Board must determine whether the veteran, as a result of his service-connected disabilities alone, is able secure or follow any form of substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; accord Hatlestad, supra. In addition, according to 38 C.F.R. § 4.16(b), for those veterans who fail to meet the percentage requirements set forth in § 4.16(a), but who are in fact unemployable by reason of service-connected disabilities, the Board should submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration. In light of the decision above, the veteran meets the percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU. The veteran is service-connected for status post total right hip replacement due to rheumatoid arthritis, rated as 70 percent disabling; right hand rheumatoid arthritis, rated as 20 percent disabling; and tinnitus, rated as 10 percent disabling. These service- connected disabilities result in a combined rating of 78 percent. As a result, the schedular requirements for the assignment of a TDIU are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. Having met the objective criteria, the remaining question is whether the veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Considering the industrial impairment from service-connected disabilities, the veteran's service-connected status post total right hip replacement due to rheumatoid arthritis, which is rated as 70 percent disabling, has manifested "marked" right hip pain and incoordination that result in limitation of motion that affects the ability to sit and or walk, and results in a limp. The veteran's service-connected right hand rheumatoid arthritis, which is rated as 20 percent disabling, is manifested by pain, swelling, and reduced grip strength. The veteran testified that his joint pain affects his occupational activities and activities of daily living. The claims file indicates that he has past relevant work experience as a truck driver and packer for a moving company. The test is whether the veteran's service-connected disabilities are of such severity to render the average person unable to follow a substantially gainful occupation. In this case, when the disabling effects of all the veteran's service-connected disabilities are considered, the weight of the evidence shows the service-connected disabilities render the veteran unable to obtain or maintain substantially gainful employment. For these reasons, the Board finds that the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16, 4.19. ORDER A 70 percent rating is granted for the veteran's residuals of a right total hip replacement, subject to the regulations governing payment of monetary awards. A TDIU is granted, subject to the regulations governing the payment of monetary awards. REMAND In its February 2007 remand order, the Board noted that the claims file does not indicate where and when during 1993 the replacement took place. The Board directed the RO to secure records from all VA facilities where the veteran was treated in order to ascertain where the replacement was performed. Specifically, the Board instructed the RO to obtain VA treatment records from 1993 to 2003 from the outpatient clinic in Winston-Salem and the VA Medical Centers in Durham and Salisbury, North Carolina. In the November 2007 SSOC, the RO indicated that it had obtained "all [the veteran's] treatment reports from 1993 to the current date," and that a review of those records showed no findings related to a right hip replacement. Therefore, the RO determined that a 100 percent rating was not warranted. The claims file contains a recent records to the Durham and Salisbury VAMCs, but no request to the Winston-Salem clinic. In any event, a December 1993 X-ray report from the Durham VAMC indicates that the veteran's right hip was replaced on December 14, 1993. A March 2004 treatment record from the Winston-Salem clinic also indicates that the veteran's hip was replaced in December 1993. The veteran has not disputed this date. However, it remains unclear where the veteran had this procedure performed. The Board notes that the file does contain records from private providers concerning treatment for rheumatoid arthritis. Accordingly, this case is REMANDED for the following action: 1. Obtain the veteran's treatment records from 1993. This request should be directed to the outpatient clinic at Winston-Salem. If a reasonable search is not productive, the custodian(s) of records there should so state. 2. Contact the veteran for the purpose of determining where and when the total right hip replacement surgery was performed. If necessary, obtain authorization from the veteran for the release of those records. 3. If warranted, reconsider the matter of a 100 percent disability rating for the year following his total right hip replacement surgery. If the decision is adverse to the veteran, issue an updated supplemental statement of the case and give the veteran an appropriate amount of time to respond to it. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs