Citation Nr: 1316648 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 08-23 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for chronic muscle strain, left hip, before October 7, 2009. 2. Entitlement to an initial disability evaluation in excess of 20 percent for chronic muscle strain, left hip, from October 7, 2009 forward. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities ("TDIU"). REPRESENTATION Appellant represented by: Robert Laughlin, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from June 1994 to June 1998. These matters come before the Board of Veterans' Appeals ("Board") on appeal from rating decisions issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Des Moines, Iowa. In a July 2008 rating decision, the RO granted the Veteran's claim of entitlement to service connection for chronic muscle strain, left hip, assigning an initial rating of 10 percent, effective April 8, 2004. The Board remanded this case for additional development in March 2011. In that remand, the Board noted that although the Veteran did not perfect his appeal of a December 2009 denial of a TDIU, the issue was subsequently raised by the Veteran at his August 2010 hearing. As such, the Board found that because a TDIU claim is part of an increased rating claim and may be properly before the Board when such claim is raised by the record, the Board's jurisdiction in this case included that issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, that issue was included and addressed in a September 2012 supplemental statement of the case (SSOC). Also, the Board found in the March 2011 remand, that there was an outstanding notice of disagreement as to the issue of entitlement to an initial higher evaluation for the Veteran's service-connected left hip disability, and the agency of original jurisdiction was instructed to provide the Veteran a statement of the case and given the opportunity to submit a timely substantive appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). A statement of the case was issued on the rating issue in April 2012. While multiple submissions were subsequently submitted on the Veteran's behalf, no Form 9 is of record. Despite this the RO continued to include this issue in a September 2012 SSOC, and certified such issue to the Board. In this regard, the Board notes that there is no statutory or regulatory authority to toll the substantive appeal filing deadline. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202 (2012); see also Percy v. Shinseki, 23 Vet. App. 37, 44 (2009) (noting that the statutory language for the notice of disagreement filing time limit is mandatory and jurisdictional in nature). The U.S. Court of Appeals for Veterans Claims (Court) in Percy held that the 60-day period in which to file a substantive appeal is not jurisdictional, and thus VA may waive any issue of timeliness in the filing of a substantive appeal. In that case, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board finds that similar circumstances exist in this case, and as such, the Board will address this issue in its decision. In a subsequent April 2012 rating decision, the RO increased the disability rating for the service-connected left hip disorder to 20 percent, effective October 7, 2009. Despite the assignment of an increased disability evaluation for this disorder, the issue remains in appellate status because the Veteran has continued to express disagreement with the assigned rating. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (a rating decision issued after a notice of disagreement which grants less than the maximum rating available does not "abrogate the pending appeal"). In August 2010, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing has been associated with the Veteran's claims folder. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO. The Veteran will be notified if additional action is required on his part. FINDINGS OF FACT 1. For the period prior to October 7, 2009, the Veteran's chronic muscle strain, left hip, was manifested by no worse than flexion to 90 degrees with pain; extension greater than 5 degrees; and without evidence of limitation of motion in abduction beyond 10 degrees, an inability to cross his legs, or an inability to toe-out more than 15 degrees; ankylosis, flail joint or impairment of the femur; or evidence of any additional limitations upon repeated use. 2. For the period October 7, 2009 forward, the Veteran's chronic muscle strain, left hip, was manifested by no worse than flexion to 90 degrees with pain; extension greater than 5 degrees; limitation of abduction to only 10 degrees; but without evidence of an inability to cross his legs, or an inability to toe-out more than 15 degrees; evidence of ankylosis, flail joint or impairment of the femur; and additional functional impairment due to pain, fatigue and lack of endurance on repeated use. CONCLUSIONS OF LAW 1. For the period prior to October 7, 2009, the criteria for a disability rating in excess of 10 percent for chronic muscle strain, left hip, are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.69, 4.71a, Diagnostic Codes 5251, 5252, 5253 (2012). 2. For the period October 7, 2009 forward, the criteria for a disability rating in excess of 20 percent for chronic muscle strain, left hip, are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.69, 4.71a, Diagnostic Codes 5251, 5252, 5253 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), however, the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the VA Secretary ("Secretary"). See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, service connection had already been established, and the current appeal arose, in part, from a disagreement with the initial rating assigned. The Court has held that where service connection has been granted, and the initial rating has been assigned, the service connection claim has been more than substantiated - it has been proven. See Dingess/Hartman v. Nicholson, supra. As such, 38 U.S.C.A. § 5103(a) notice is no longer required, since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to notice is nonprejudicial. See Dingess, 19 Vet. App. at 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, No. 05-876 (U.S. Vet. App. May 19, 2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Nevertheless, the Board notes that a letter dated September 2009 informed the Veteran of the specific diagnostic codes applicable to his service-connected left hip disorder and an April 2012 Statement of the Case ("SOC") readjudicated the claim. See Dingess/Hartman, supra; see also Mayfield v. Nicholson, 20 Vet. App. 537 (2006), citing Mayfield v. Nicholson, 444 F.3d at 1333-34 (holding that providing the claimant with notice followed by a readjudication of the claim in an SOC or SSOC "cures" any timing problem associated with the lack of notice prior to an initial adjudication). B.) Duty to Assist The Board is satisfied that the duty to assist has been satisfied. The claims folder contains the Veteran's service and post-service treatment records, and VA examinations dated July 2005, August 2006, October 2009 and September 2012. The claims folder also contains the Veteran's statements and testimony in support of his claims. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claims that have not already been obtained and associated with the record. With regard to the examination reports, the Board notes that the examiners reviewed the complete claims folder, elicited from the Veteran his history of symptomatology, performed comprehensive physical examinations, along with a review of diagnostic test results when warranted, and provided the results of the examination, including the complete diagnostic criteria necessary to evaluate the severity of the Veteran's left hip disorder and adjudicate the claims. As noted, the Veteran was afforded a personal hearing before the undersigned in August 2010. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge(VLJ)/Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determination or the specific elements that were lacking to substantiate the claim. However, specific questions were asked directed at identifying matters pertinent to the appeal. The Veteran also volunteered this information and discussed why he should prevail in his claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. By contrast, the hearing discussed matters necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Applicable laws and regulations. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate Diagnostic Codes ("DC") identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue, and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). 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). 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 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2012). 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. The 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Id. With regard to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination; impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). Painful, unstable, or malaligned joints, due to healed injury are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The Court has held that when evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40 ) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206. The fact that the revised criteria include symptoms such as pain, stiffness, aching, etc., if present, means that evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). The Veteran's service-connected left hip disability has been evaluated under the VA Schedule for Rating Disabilities, initially under Diagnostic Code (DC) 5252 and then under DC 5253. 38 C.F.R. § 4.71a (2012). The criteria under these diagnostic codes as well as under other diagnostic codes are pertinent to this appeal. Under DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes. However, when the limitation of motion of the specific joint or joints is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applicable for each such major joint or group of minor joints affected, to be combined, not added, under DC 5003. Normal ranges of motion of the hip are from hip flexion from 0 degrees to 125 degrees, and hip abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. DC 5250 provides for rating the hip on the basis of ankylosis. Favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees and slight adduction or abduction is to be rated 60 percent disabling; intermediate ankylosis of the hip is to be rated 70 percent disabling; and extremely unfavorable ankylosis, with the foot not reaching ground, crutches necessitated, is to be rated 90 percent disabling, and is entitled to special monthly compensation. 38 C.F.R. § 4.71a, DC 5250. DC 5251 provides a 10 percent disability rating for limitation of extension of the thigh that is limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5251 DC 5252 provides ratings based on limitation of flexion of the thigh. A 10 percent disability rating is for flexion of the thigh that is limited to 45 degrees; a 20 percent rating is for flexion of the thigh that is limited to 30 degrees; a 30 percent rating is for flexion of the thigh that is limited to 20 degrees; and a 40 percent rating is for flexion of the thigh that is limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. DC 5253 provides a 10 percent disability rating for limitation of rotation of the thigh, cannot toe-out more than 15 degrees on the affected leg; a 10 percent disability rating for limitation of adduction, cannot cross legs; and a 20 percent disability rating for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. DC 5254 provides an 80 percent disability rating for hip, flail joint. 38 C.F.R. § 4.71a, DC 5254. Under DC 5255, malunion of the femur with slight knee or hip disability warrants a 10 percent evaluation; malunion of the femur with moderate knee or hip disability warrants a 20 percent evaluation; malunion of the femur with marked knee or hip disability warrants a 30 percent evaluation; fracture of surgical neck of the femur, with false joint or fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, weight bearing preserved with aid of brace warrants a 60 percent evaluation; and fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture) warrants an 80 percent evaluation. 38 C.F.R. § 4.71a, DC 5255. Review of the claims folder shows that, beginning in 2003, the Veteran received private treatment for complaints of left hip pain. An April 2003 x-ray of the joint revealed normal findings. An MRI in May 2003, including a bone scan of the pelvis and hips, also revealed normal findings. In November 2003, the Veteran was seen at a private pain clinic, where he was diagnosed with myofascial pain syndrome and received a trigger point injection. In July 2005, the Veteran was afforded a VA compensation and pension examination, at which time, he complained of constant, sharp pain in the posterior region of his left hip that he felt deep within the joint. He said he was not receiving any treatment for the condition at that time, however, denied flare-ups, and used no assistive devices. He also denied subluxation, inflammatory arthritis, or dislocation of the joint. Upon physical examination, flexion was 0-128 degrees; extension was 0-22 degrees (normal is 0-30 degrees); abduction was 0-30 degrees with pain at 18 degrees; adduction was 0-28 (normal is 0-25 degrees); internal rotation was 0-38 degrees with pain at 33 degrees (normal is 0-40 degrees); and external rotation was 0-33 with pain at 26 degrees (normal is 0-60 degrees). There was no visible or palpable deformity, warmth, redness, crepitus or effusion, but there was minimal deep tenderness to very firm palpation of the posterior left hip joint. Strength was within normal limits for flexion, extension, abduction, adduction, internal rotation, and external rotation. The Veteran was able to go into a full squat and take three duck walk steps without pain. There was no evidence of fatiguing during active range of motion against resistance greater than gravity (sustained 45 degree knee bend). The neurological examination demonstrated nerves II-IX grossly intact; Romberg's was negative. The sensory examination to light touch and vibration was also grossly intact and symmetric for the lower extremities. X-rays of the left hip and pelvis were negative. The diagnosis was left hip pain with minimal positive clinical examination findings, negative laboratory findings, and negative x-rays, with minimal functional limitation due primarily to pain. In August 2006, the Veteran was afforded a VA joints examination, at which time, he complained of constant pain, worse with activity, especially walking or sitting for prolonged periods. However, he reported that the condition had no effect on his occupation or activities of daily living. Upon physical examination, the examiner noted a slow, stable and antalgic gait. Straight leg raises demonstrated normal strength bilaterally without fatigue or lack of endurance after continuous resistance greater than gravity. There was mild tenderness on deep palpation over the greater trochanter (where the femur connects to the hip bone). Flexion was to 125 degrees with pain at 110 degrees; extension was to 30 degrees with pain at 25 degrees; abduction was to 30 degrees with pain at 20 degrees; adduction was to 25 degrees with pain at 20 degrees; internal rotation was to 35 degrees with pain at 25 degrees; and external rotation was to 55 degrees with pain at 45 degrees. Diagnostic tests were not performed. The diagnosis was muscle strain, chronic, left hip with chronic pain. The examiner opined that it was at least as likely as not that the condition was secondary to the Veteran's altered gait and stance due to his service-connected foot disorder. In February 2008, the Veteran was seen at the VA Medical Center ("VAMC") with a request for stronger pain medicine, including methadone. At that time, he was found to have significant left hip pain and the clinician noted that hip flexion above 90 degrees was intolerable. In January 2009, he was again seen at the VAMC for left hip pain with an abnormal gait. He said that he was able to walk five (5) blocks and mow the lawn in the summer. He also said, however, that he was no longer working. In October 2009, the Veteran was afforded a VA comprehensive general medical examination. The examiner noted that the complete claims folder, including the prior examination reports, had been reviewed. The Veteran complained of sharp pain in the left hip, especially noticeable with abduction. He said the pain was usually 3 out of scale of 1-10, with 10 being the worse, but it sometimes increased to 6 and occasionally to 10. He said it was worse with excess walking and sitting, including car trips over 30 minutes. Upon physical examination, the left hip flexors resulted in fatigue and lack of endurance and strength testing of the area caused more pain in the hip area without incoordination. There was no evidence of clubbing, cyanosis or pedal edema. Flexion was to 100 degrees with pain at 90 degrees; extension was to 25 degrees with pain at 20 degrees; abduction was to 10 degrees with pain at 5 degrees; adduction was to 10 degrees with pain at 5 degrees; internal rotation was to 10 degrees with pain at 5 degrees; and external rotation was to 20 degrees with pain at 10 degrees. The examiner noted that the Veteran refused to perform any repetitive range of motion exercises. The neurological examination demonstrated that nerves II-XII were grossly intact, Romberg's was negative and the sensory examination was grossly intact and symmetrical. The examiner noted that although there was functional impairment with limitation of motion, he also noted that there was additional functional impairment due to pain, pain on repetitive use, fatigue and lack of endurance. The diagnosis was muscle strain, left hip, with pain, increased with specific movements and limitation of walking and standing. Private treatment records show that in May 2010, the Veteran was diagnosed with left gluteus medius bursa pain. This diagnosis was repeated in April 2011. He continued to seek treatment for his chronic left hip pain through at least April 2012. In September 2012, the Veteran was afforded another VA examination. Again, he complained of constant left hip pain, worse with activity, especially walking and sitting for long periods. He described the pain like a "knife in the hip bone" that occasionally radiated down his thigh into his knee during flare-ups. Upon physical examination, flexion was to 90 degrees with pain; extension was greater than 5 degrees without pain; abduction was not loss beyond 10 degrees; adduction was not so limited that the Veteran could not cross his legs; and rotation was not so limited that the Veteran could not toe-out more than 15 degrees. After repetitive motion, flexion was to 90 degrees, extension was greater than 5 degrees, abduction was not loss beyond 10 degrees, adduction was not so limited that the Veteran could not cross his legs, and rotation was not so limited that the Veteran could not toe-out more than 15 degrees. However, the examiner noted that with repetitive motion, the Veteran had no additional limitation of range of motion of the hip or thigh, but did have functional loss and/or impairment of the hip and thigh. He also noted that there was less movement than normal, pain on movement and disturbance of locomotion with repetitive motion. Strength testing was normal in flexion, abduction and extension. There was no evidence of ankylosis, malunion or nonunion of the femur, flair hip joint or leg length discrepancy. The Veteran denied having undergone any surgical procedures, and there were no findings of scars or other pertinent findings. Review of an August 2012 MRI reveals negative findings. III. Analysis and Conclusion Entitlement to an initial disability evaluation in excess of 10 percent for chronic muscle strain, left hip, before October 7, 2009. Applying the pertinent legal criteria to the facts of this case, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to a disability rating in excess of the current 10 percent rating for chronic muscle strain, left hip, before October 7, 2009. In this respect, the Board notes that the Veteran's range of motion for this portion of the appeal did not result of flexion limited to 45 degrees or limitation of extension of the thigh to 5 degrees. There was also no evidence of limitation of abduction such that motion was lost beyond 10 degrees. These would be the criteria for a 10 percent disability evaluation. However, as discussed above, the Court has held that when evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995). During the July 2005 VA examination, the examiner noted that there was minimal functional limitation due primarily to pain. Similarly, during a February 2008 visit to the VAMC, it was noted that the Veteran's hip flexion above 90 degrees was intolerable, clear evidence of functional loss caused by pain. Thus, with consideration of the guidance provided in DeLuca, a compensable evaluation is in order even though the actual specific diagnostic criteria are not met. The Board has also considered whether other diagnostic codes are applicable to the Veteran's left hip disorder during this period of the appeal that may result in a higher rating. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). Here, however, because there is no objective evidence that the Veteran was found to have ankylosis, impairment of the femur, or hip flail joint, a higher disability rating for this period is not warranted. The Board has further considered whether a separate compensable evaluation was warranted based on any neurologic dysfunction of the left hip. However, as noted during the July 2005 and August 2006 VA examinations, there was no neurological impairment, including no impairment of nerves II-IX. Accordingly, a separate evaluation based on neurological dysfunction is not warranted. The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be made. The governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R § 3.321(b)(1). In this case, for the period prior to October 7, 2009, the schedule is not inadequate, as findings supporting a higher rating have not been documented. Moreover, during the period on appeal, it was not shown that the service-connected disability required frequent periods of hospitalization or produced marked interference with the Veteran's employment beyond the intent of the rating schedule. The Board thus finds that referral for consideration of the assignment of an extraschedular rating is not warranted. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); Thun, supra. In summary, the Board concludes that for the period prior to October 7, 2009, the evidence of record is against the Veteran's claim of entitlement to an initial rating in excess of 10 percent for chronic muscle strain, left hip. As there is not an approximate balance of evidence, the "benefit-of-the-doubt rule" enunciated in 38 U.S.C.A. § 5107(b) is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Entitlement to an initial disability evaluation in excess of 20 percent for chronic muscle strain, left hip, for the period October 7, 2009 forward. Based on a review of the evidence of record, the Board concludes that, for the period October 9, 2007 forward, entitlement to an initial disability evaluation in excess of 20 percent for the Veteran's left hip disorder is not warranted. In this regard, despite the Veteran's continuous complaints of severe and chronic hip pain, his thigh flexion was never found to be limited to 20 degrees. There was also no evidence of ankylosis or limitation of rotation such that he could not toe-out more than 15 degrees with the left leg. With regard to assigning a higher disability rating or ratings based on functional loss as contemplated by the Court's holding under DeLuca v. Brown, supra, again, the Board has considered the Veteran's reported symptoms due to his left hip disability, including pain. However, the Board notes that the 20 percent disability rating currently assigned under DC 5253 already contemplates such symptomatology and potential functional impairment associated with impairment of the thigh or hip. The Board has also considered whether other diagnostic codes are applicable to the Veteran's left thigh disability. See Butts v. Brown, supra. However, during this portion of the appeal period, there has been no competent evidence of that the Veteran was found to have ankylosis, impairment of the femur, or hip flail joint. As such, a higher rating under another diagnostic code is not applicable. The Board has considered whether there is any other basis for granting a higher rating, but has found none. The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun, supra. Again, during this portion of the appeal, it has not been shown that the Veteran's disability has required frequent periods of hospitalization. Moreover, although the Veteran has claimed that he is unable to work and that his service-connected disabilities, as a whole, prevent his gainful employment, this will be addressed in the REMAND portion of the appeal below. The Board thus finds that referral for consideration of the assignment of an extraschedular rating is not warranted. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); Thun, supra. Finally, in addition to the medical evidence, the Board has carefully considered the statements and testimony of the Veteran in support of his claims. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. In this regard, the Court has held that a claimant is competent to attest to factual matters of which he or she has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, although the Veteran is competent to report what comes to him through his senses, in this case, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In summary, the Board concludes that for the period prior to October 7, 2009, the evidence of record is against the Veteran's claim of entitlement to an initial rating in excess of 10 percent for chronic muscle strain, left hip. For the period October 7, 2009 forward, the evidence is against entitlement to an initial rating in excess of 20 percent for chronic muscle strain, left hip. ORDER Entitlement to an initial disability evaluation in excess of 10 percent for chronic muscle strain, left hip, before October 7, 2009 is denied. Entitlement to an initial disability evaluation in excess of 20 percent for chronic muscle strain, left hip, from October 7, 2009 forward is denied. REMAND The Veteran, though his attorney, claims that the opinion of the examiner who performed the October 2009 VA TDIU examination is inadequate because he only considered whether the Veteran is capable of gainful employment based on the Veteran's physical disabilities without regard to his service-connected mood disorder. After a thorough review of the evidence, the Board has determined that additional development is necessary prior to adjudication of this claim. In the October 2012 letter from the Veteran's attorney, he notes that in the September 2012 examination report, the examiner wrote that an opinion was being provided as to whether or not the Veteran's service-connected disabilities would make it "impossible" for the average person to secure and maintain gainful employment. (emphasis in original). He thus claims that that VA has set an impermissibly high standard, as he says 38 C.F.R. § 4.16(a) contemplates a person who is only able to maintain "marginal employment" may be entitled to TDIU. Significantly, the Veteran's attorney argues that, in denying the Veteran's claim, the RO did not incorporate or consider any of the separate mental limitations or restrictions noted by the examiner who performed the July 2012 mental health examination. In this regard, the Board notes that while the July 2012 examiner opined that the Veteran's mood disorder alone would not render him unable to secure and maintain gainful employment (as did the October 2009 examiner who performed the physical TDIU evaluation), and the September 2012 examiner opined that the Veteran's physical disabilities alone would not render him unable to secure and maintain gainful employment (as did the October 2009 examiner who performed the mental health TDIU evaluation), it appears that an opinion is needed as to whether the Veteran's physical and mental disabilities, combined, would render him unemployable. If a VA compensation and pension examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2, 19.9(a) (2012); Bierman v. Brown, 6 Vet. App. 125, 129 (1994). The Court has held that once VA provides an examination, it must be adequate or VA must notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In this respect, the Court has held that medical opinions must be supported by clinical findings in the record, and bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (citing Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007)). Accordingly, the Board finds that remand is necessary to obtain an opinion from a VA examiner as to whether all of the Veteran's service-connected disabilities, both mental and physical combined, render him unable to obtain and secure gainful employment. Accordingly, the case is REMANDED for the following action: 1. The claims folder should be returned to the examiner who performed the September 2012 examination (or, if unavailable, an appropriate VA examiner) for an opinion to determine the effect of all of his service-connected disabilities on his employability. The claims folder must be made available to the examiner in conjunction with the examination and the examiner must note that the folder has been reviewed. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) the Veteran's service-connected disabilities alone, singly, or in the aggregate (i.e., physical and mental disabilities combined), preclude him from obtaining and maintaining substantially gainful employment versus just marginal employment, considering his level of education, prior work experience, special training, etc., but not his age or impairment attributable to disabilities that are not service connected. A complete rationale for all opinions expressed must be included in the examination report. 2. Thereafter, readjudicate the issues on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs