Citation Nr: 1318978 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 04-42 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to an initial rating in excess of 10 percent for residuals of sepsis infection, now characterized as right hip pain. REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active military service from April 1971 to April 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In that decision, the RO granted the Veteran service connection for residuals of sepsis infection, assigning an initial 10 percent disability rating. The Board subsequently remanded the case on multiple occasions, most recently in November 2010, for further evidentiary development and adjudication. The Board instructed the agency of original jurisdiction (AOJ) to provide the Veteran with a thorough physical examination, addressing all the possible related complications of his in-service sepsis infection and Reiter's Syndrome, and then re-adjudicate the claim. The AOJ scheduled the Veteran for a VA examination, which was conducted in December 2010. The Board adjudicated the Veteran's claim in January 2012, relying in part on the findings included in the December 2010 examination report. Subsequently, pursuant to a Joint Motion for Remand (JMR), the Court of Appeals for Veterans Claims (Court) issued a January 2013 Order, directing the Board to reconsider its decision. The JMR specifically addressed two issues, the first being whether the December 2010 examination report satisfied the instructions the Board included in its November 2010 remand, and the second being whether the Board adjudicated claims for secondary service connection for disabilities of the back and knee in the first instance. The Board addresses the first concern raised by the JMR, i.e., whether there was a violation of the legal principle discussed in Stegall v. West, 11 Vet. App. 268, 271 (1998) that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, in the decision below. As to the second issue raised by the JMR, the Board has, in compliance with the JMR's instructions, referred the issue of entitlement to service connection for disabilities of the back and knee, as secondary to the service connected hip disability, to the AOJ for development and adjudication. The Board observes, on a related note, that pursuant to the remand and subsequent January 2010 VA examination, the RO granted the Veteran separate service connection for reactive arthritis of the right hand, left hand, and left hip and assigned initial ratings of 10 percent for each disability. As the appeal of the Veteran's claim for an initial rating in excess of 10 percent for residuals of sepsis infection, now characterized as right hip pain, emanates from the Veteran's disagreement with the initial 10 percent rating assigned following the grant of service connection, the Board has characterized the claim as one for a higher initial rating, in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran testified before a Veterans Law Judge at a hearing at the RO in June 2005. A transcript of the hearing has been associated with the Veteran's claims file. (The Veterans Law Judge who conducted the June 2005 hearing is no longer employed by the Board. Accordingly, the Veteran was given another opportunity to appear at a hearing, pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and 38 C.F.R. § 20.707 (2012). In September 2008, the Veteran indicated that he did not desire another hearing.) The issues of entitlement to service connection for disabilities of the back and knees, and entitlement to increased ratings for reactive arthritis of the right hand, left hand, and left hip, each currently evaluated as 10 percent disabling, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. Finally, the Board notes that, although significant language in the ensuing decision is the same as included in the Board's vacated January 2012 decision, the Board has done so after performing a critical examination of the evidence of record, and after determining that no further development of the record is necessary. See Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). FINDINGS OF FACT 1. Throughout the appeal, the Veteran's right hip disability has been manifested by objective evidence of limitation of motion of flexion to no worse than 40 degrees when pain on motion is considered. 2. Beginning December 19, 2007, the Veteran's limited adduction of the thigh prevents him from crossing his legs. 3. Beginning May 21, 2012, the Veteran's extension of the thigh is limited to greater than 5 degrees, and there was pain at greater than 5 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for residuals of sepsis infection, now characterized as right hip pain, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.71, 4.71a, Diagnostic Code 5252 (2012). 2. Beginning December 19, 2007, the criteria for a 10 percent rating, and no higher, for limitation of adduction of the thigh, have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.71, 4.71a, Diagnostic Code 5253 (2012). 3. Beginning May 21, 2012, the criteria for a 10 percent rating, and no higher, for limitation of extension, have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.71, 4.71a, Diagnostic Code 5251 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, during the pendency of the appeal. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) In this case, the Board finds that all notification and development action needed to arrive at a decision on the claim on appeal has been accomplished. Through September 2006 and July 2009 notice letters, the RO notified the Veteran of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via the September 2006 and July 2009 notice letters. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claims, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the September 2006 and July 2009 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice 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; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned September 2006 and July 2009 notice letters. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Veteran was given the opportunity to respond following the September 2006 and July 2009 notice letters. Although the totality of the required notice was not provided until after the Veteran's claim was initially adjudicated, the claim was subsequently re-adjudicated in an October 2011 supplemental statement of the case, thereby correcting any defect in the timing of the notice. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). No further corrective action is necessary. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's post-service treatment records from private treatment providers have been associated with the file. In addition, the Veteran was provided VA medical examination in December 2002, March 2003, September 2004, September 2006, December 2007, July 2009, July 2010, and December 2010; reports of those examinations have been associated with the claims file. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the December 2010 VA examination obtained in this case is adequate, as it is predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran and his representative, and reflects that the examiner conducted a full physical examination of the Veteran, which included information necessary to apply the pertinent rating criteria. The Board notes the fact that at the December 2010 examination, the Veteran "resisted passive assistance [with range of motion testing] of [the bilateral] hips," and that "repetitive use [testing was] not accompolished [sic] due to lack of coorperation" [sic]. In the Board's previous decision, as discussed in the January 2013 Joint Motion for Remand (JMR), the Board improperly characterized the Veteran's lack of cooperation, stating that the "Veteran refused to engage in repetitive-motion testing." The Board regrets its error, but notes that the error was one of style rather than substance, and that further remand is not warranted. Per the JMR, the Board is requested to "fully address whether the 2010 VA examination was adequate or whether VA should secure an additional opinion and require the examiner to opine fully, as was requested by the 2011 [sic] Board, along with complete rationale for the examiner's findings." The JMR noted that the in the November 2010 remand, the Board provided instructions that the examiner "must address the DeLuca requirements, including loss of range of motion in the Veteran's right hip, back, and knees due to repetitive motion," (emphasis in original), and noted that the examiner "must at the very least undertake repetitive testing (to include at least three repetitions) of the joint's . . . range of motion," citing VA Fast Letter 06-25. The Board finds that there has been substantial compliance with the November 2010 remand. Dyment v. West, 13 Vet. App. 141, 147 (1997). In the present case, the Veteran has been examined numerous times since 2002; VA has made every effort to provide the Veteran with an adequate examination. At the time of the December 2010 examination, the examiner tried to comply with the Board's instructions. As quoted above, the examiner indicated in the report that he attempted to perform repetitive motion testing, but the Veteran did not cooperate. The Board finds that the effort on the part of the examiner substantially met the Board's order that repetitive motion testing "must" be accomplished. This is a situation where the examiner cannot force the Veteran to participate in repetitive motion testing. The duty to assist the Veteran is not always a one-way street; in a situation such as this, where physical testing of the Veteran's abilities is ordered, he must participate in the process. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As VA attempted to provide repetitive motion testing, and the Veteran did not cooperate, there has been substantial compliance with the Board's order. Dyment, 13 Vet. App. at 147. Further, as part of a May 2012 examination to determine whether the Veteran's service-connected disabilities affect his employability, a VA examiner provided a full examination of the hip, including repetitive motion testing, that, even though not directly ordered by the Board, effectuated compliance with the JMR. Stegall, 11 Vet. App. at 271. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has further been given the opportunity to submit evidence; he and his representative have provided written argument in support of his claim, and the Veteran testified before a Veterans Law Judge at a hearing in June 2005. Neither the Veteran nor his representative has identified, and the record does not indicate, existing records pertinent to the claim on appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis The Veteran contends that his residuals of sepsis infection, now characterized as right hip pain, is more disabling than what is reflected by the initially assigned 10 percent rating. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). When evaluating musculoskeletal disabilities, VA must, in addition to applying schedular criteria, consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation & Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. The relevant medical evidence consists of VA examinations conducted in December 2002, March 2003, September 2004, September 2006, December 2007, July 2009, July 2010, December 2010, and May 2012, as well as ongoing records of the Veteran's treatment with private physicians. Records from his private physicians reflect that the Veteran was seen for complaints of pain in his right hip and was noted at the time to have "significant arthritis" in the right hip joint, although he was not noted to have any limitation of range of motion at that time. His private physician submitted a statement in October 2006 noting that he had diagnosed the Veteran with early degenerative joint disease of the right hip. The December 2002 VA examination report reflects that the Veteran complained of pain in his right hip with weekly flare-ups that caused difficulty with stairs, stooping, and bending. The Veteran did not use a cane and denied experiencing dislocation or subluxation. Physical examination revealed no swelling, discoloration, joint deformity, or palpable tenderness. Range of motion of the right hip was found to be flexion to 60 degrees, extension to 30 degrees, adduction to 10 degrees, abduction to 40 degrees, external rotation to 60 degrees, and internal rotation to 25 degrees. Repetitive motion testing was not performed. The examiner noted that radiological examination of the Veteran's right hip was negative and diagnosed him with right hip pain of unknown etiology. The Veteran again underwent VA examination in March 2003, at which time he again complained of right hip pain, worse in cold temperatures or walking more than half a mile. The Veteran also reported being unable to play golf or engage in other sports secondary to pain and stated that driving, going to the movies, and flying were all made difficult by his right hip pain. Physical examination revealed a normal gait and normal musculature of the right hip. No deformity, tenderness, edema, weakness, or redness were noted, and range of motion of the right hip was found to be flexion to 80 degrees, extension to 30 degrees, adduction to 20 degrees, abduction to 40 degrees, external rotation to 60 degrees, and internal rotation to 25 degrees, all without pain. The examiner noted the Veteran's complaints of pain in other joints but concluded that, because there was no evidence of active Reiter's syndrome, thus there was "no indication that other arthralgias may be related to active Reiter's." Further examination conducted in September 2004 reflects that the Veteran continued to complain of pain and weakness in his right hip, although he denied edema, inflammation, or instability. The Veteran stated that sitting in a hot tub or sauna, as well as pain medications, alleviated his pain somewhat. Physical evaluation revealed that the Veteran's range of motion was flexion to 65 degrees, adduction to 20 degrees, abduction to 30 degrees, external rotation to 25 degrees, and internal rotation to 25 degrees. Repetitive-motion testing was noted to reduce the Veteran's range of motion by 10 percent due to pain. Report of the Veteran's September 2006 VA examination reflects that the Veteran stated he was unable to walk more than a half a mile and had difficulty with stairs due to his right hip pain. Physical examination revealed slight muscle atrophy of the right quadriceps and hamstrings muscles, and motor strength was found to be moderately diminished in flexion and extension. Range of motion of the right hip was found to be flexion to 102 degrees, extension to 0 degrees, adduction to 5 degrees, abduction to 10 degrees, external rotation to 10 degrees, and internal rotation to 5 degrees. Repetitive motion testing did not further limit the hip's function. The examiner noted that the Veteran's gait and movement were grossly normal. Radiological examination revealed degenerative disease of the right hip. At a subsequent VA examination conducted in December 2007, the Veteran continued to complain of right hip pain that has worsened over the years with flare-ups of pain twice per week. No complaints of weakness, stiffness, swelling, heat, or instability were noted, although the Veteran did complain of fatigability and a lack of endurance. The Veteran was noted not to be able to cross his left knee over his right or his right knee over his left, and some evidence of fatigue, weakness, and lack of endurance was found on repetitive-motion testing. Physical examination also revealed evidence of pain on motion, weakness, tenderness, and guarding of movement. Range of motion revealed flexion to 90 degrees, extension to 20 degrees, adduction to 10 degrees, abduction to 25 degrees, external rotation to 30 degrees, and internal rotation to 10 degrees. The Veteran complained of pain throughout the range of motion, but repetitive motion testing did not cause further limitation. The examiner diagnosed the Veteran with degenerative disc disease of the bilateral hips and a limited range of motion in the hips, which the examiner found was an "unmistakably age related condition." Radiological evaluation confirmed degenerative osteoarthritis in the hips that was found to be "mild to moderate in nature at best." Pursuant to a January 2009 request, a VA specialist opinion was obtained in February 2009. In that opinion, the specialist acknowledged the Veteran's current degenerative changes of the right hip and recommended re-examination of the Veteran's joints to determine whether degenerative changes in any other joints were related to his in-service Reiter's Syndrome, which led to his current right hip disability. Consequently, the Veteran was again provided VA examination in July 2009. Report of the July 2009 examination reflects that the Veteran complained of ongoing pain in his right hip, as well as in his lumbar spine, sacroiliac joints, and hands. Range of motion testing of the Veteran's right hip revealed flexion to 100 degrees, extension to 0 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees. The examination did not include repetitive motion testing. Radiological evaluation revealed degenerative changes of the right hip, sacroiliac joints, and bilateral hands, as well as "normal age related changes in the lumbar spine." The examiner diagnosed the Veteran with reactive arthritis "involving the right hip, all joints of both hands, both sacroiliac joints." The examiner further specifically noted that the Veteran's in-service sepsis infection led to Reiter's Syndrome, to which the examiner attributed the Veteran's current arthritis of the right hip. The examiner further stated that that the Veteran's complaints of pain in the right knee, hands, and both sacroiliac joints "are caused by this condition." However, later in the examination report, the examiner stated that the Veteran's knee problems, as well as a bilateral shoulder disability, were not related to the in-service Reiter's Syndrome. The examiner did not address the etiology of the Veteran's back disability. Due in part to this discrepancy in the July 2009 VA examination, the Board remanded the Veteran's claim in July 2010 for a new VA examination to be provided. Pursuant to this remand, the Veteran was given another VA examination in July 2010. Report of that examination reflects that the examiner considered the Veteran's in-service synovitis of the right hip and his complaints of ongoing persistent pain in the lumbar spine, buttocks, and knees that limits his activities. Range of motion testing of the Veteran's right hip revealed flexion to 90 degrees, extension to 0 degrees, external rotation to 30 degrees, and internal rotation to 0 degrees, with pain noted at the extremes of all motions. The examination did not include repetitive motion testing. The examiner diagnosed the Veteran with reactive arthritis and opined that, given his reported history of a diarrheal episode and subsequent "multiple other joint involvement, the diagnosis of reactive arthritis is consistent." The examiner did not clarify, however, which of the other joints were implicated in the diagnosis of reactive arthritis or whether the diagnosis was at least as likely as not etiologically related to the Veteran's in-service Reiter's Syndrome or to his currently service-connected disability. In this case, the Board notes that the Veteran was diagnosed in service with Reiter's Syndrome, which "is defined as 'a triad of symptoms of unknown etiology comprising urethritis ([inflammation of the urethra]) conjunctivitis, and arthritis (the dominant feature) . . . chiefly affecting young men, and usually running a self limited but relapsing course'." Tozian v. Derwinski, 3 Vet. App. 268 (1992). The AOJ was instructed to obtain clarification in the VA examination pertaining to the exact nature and extent of current residual involvement, including degenerative joint disease, of all specific joints, to include but not limited to hips, knees, and upper and lower back. Thus, the Veteran underwent additional VA examination in December 2010, at which time he again was noted to complain of pain in the right hip, as well as in his back and knees. He further complained of pain on prolonged sitting and weather changes as well as weakness, stiffness, and swelling. The examiner further noted the Veteran's complaints of pain in his lumbar spine that "probably began" in service and pain in his knees, which began in the 1970s. Physical examination revealed range of motion of the right hip of flexion to 40 degrees, adduction to 15 degrees, abduction to 25 degrees, external rotation to 30 degrees, and internal rotation to 10 degrees. The examiner did not accomplish repetitive motion testing "due to lack of coorperation" [sic]. The Veteran reported that he was unable to cross his right leg over his left, although he did cross his left knee over his right during the examination. No evidence of edema, effusion, instability, weakness, or abnormal movement was found, although the examiner noted the Veteran engaged in "considerable guarding of movement." The examiner diagnosed the Veteran with osteoarthritis of the bilateral hips and bilateral knees and spondylosis of the lumbar spine, with "no evidence of erosion that would suggest reactive arthritis" in any of those joints. In a January 2011 addendum, the examiner noted private nerve conduction study that found the Veteran to experience no peripheral neuropathy. In May 2012, as part of an examination to determine whether the Veteran met the criteria for a total disability rating based on individual unemployability, VA again examined his right hip disability. Range of motion testing of the Veteran's right hip revealed flexion to greater than 125 degrees with pain at greater than 125 degrees, and extension ending at greater than 5 degrees with pain at that level. Abduction was not limited beyond 10 degrees. Adduction was limited to the point that the Veteran could not cross his legs. There was not such limitation of rotation that the Veteran could not toe-out more than 15 degrees. The examiner conducted repetitive motion testing without any changes in results, but noted that the Veteran had pain on movement. In addition, the Veteran has submitted multiple written statements in support of his claim and has testified before a Veterans Law Judge. In his written statements, the Veteran has contended that his right hip continues to be painful, limiting his activities and worsening over the years. His wife has also submitted statements attesting to her knowledge that the Veteran experiences ongoing pain in his hip. The Veteran similarly testified at his June 2005 hearing that his right hip continues to cause pain. In this case, the RO has evaluated the Veteran's residuals of sepsis infection, now characterized as right hip pain, as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2012), governing limitation of flexion of the thigh. Under Diagnostic Code 5252, 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. Id. The hip can also be rated under Diagnostic Codes 5250, 5251, 5253, 5254, and 5255. 38 C.F.R. § 4.71a. Assigning multiple ratings based on the same symptoms or manifestations would constitute prohibited pyramiding. 38 C.F.R. § 4.14 (2012). The Board finds, however, that assigning separate ratings based on limitation of extension, flexion, and adduction of the hip under Diagnostic Codes 5251, 5252 and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14. Separate ratings under different diagnostic codes may be assigned where "none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." Esteban v. Brown, 6 Vet. App. 259 (1994). Here the key consideration has been met, in that limitation of extension, flexion, and adduction concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip. See 38 C.F.R. § 4.45. If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected left hip disability. See 38 C.F.R. § 4.40; see also VAOPGCPREC 9-2004 (providing that separate ratings may be assigned for disability of the same joint where Veteran has both limitation of flexion and limitation of extension of same leg). Diagnostic Code 5251 provides that limitation of extension of the thigh to 5 degrees warrants a 10 percent rating. Diagnostic Code 5253 allows for rating based on limitation of abduction or adduction or rotation. Under Diagnostic Code 5253, limitation of rotation, not being able to toe-out more than 15 degrees warrants a 10 percent rating; limitation of adduction such that the legs cannot be crossed warrants a 10 percent rating; and limitation of abduction with motion lost beyond 10 degrees warrants a 20 percent rating. Upon review of the above evidence and in light of the governing legal authority, the Board finds that an initial rating in excess of 10 percent for the Veteran's right hip disability under Diagnostic Code 5252, as presently rated, is not warranted at any time during the appellate period. As noted above, in order for the disability to warrant an increase to a higher evaluation, the evidence must show the functional equivalent of flexion limited to 30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5252; DeLuca, 8 Vet. App. 202. Here, even when pain on motion is taken into consideration, the Veteran's flexion of the right hip has been shown to be, at worst, to 40 degrees, thus warranting no more than the 10 percent disability rating already assigned under Diagnostic Code 5252. As discussed above, the fact that the Veteran does not warrant a higher rating based on limitation of flexion of the hip does not preclude him from being granted a separate rating, if based on separate symptomatology. 38 C.F.R. § 4.14. The evidence demonstrates that, as of the time of the May 21, 2012 VA examination, the Veteran was unable to extend his leg fully. The examiner noted that extension was limited to greater than 5 degrees, and that there was pain at greater than 5 degrees. Full extension of the thigh, as demonstrated in Plate II found in 38 C.F.R. § 4.71a, is 0 degrees. Under Diagnostic Code 5251, this measured limitation of extension to 5 degrees or more meets the criteria for a 10 percent rating, beginning in May 2012. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Beginning with the December 19, 2007 examination report, the evidence also demonstrates that the Veteran's limited adduction of the thigh prevents him from crossing his legs. The inability to cross one's leg due to limited adduction warrants a 10 percent rating under 38 C.F.R. § Diagnostic Code 5253. That finding was confirmed in the December 2010 and May 2012 examination reports. As such, the Veteran warrants a separate, 10 percent rating under Diagnostic Code 5253, beginning December 19, 2007. The evidence does not suggest that the Veteran had limitation of rotation such that he could not toe out more than 15 degrees, and thus a 20 percent rating is not warranted under that code. 38 C.F.R. § 4.71a, Diagnostic Code 5253. The Board has considered the applicability of other diagnostic codes related to the hip, but as there is no evidence of ankylosis of the hip (Diagnostic Code 5250), that the Veteran suffers from a flair joint (Diagnostic Code 5254), or that he has impairment of the femur (Diagnostic Code 5255), no other criteria applies to the Veteran's disability. Finally, the Board acknowledges that the Veteran's complaints of pain in his lower back and knees has raised the issue of whether any disability in those joints is etiologically linked to his service-connected right hip disability, which was caused by an in-service occurrence of Reiter's Syndrome, which is also known as reactive arthritis. See Tozian, 3 Vet. App. 268. The issues of entitlement to service connection for disabilities of the back and knees, as secondary to his service-connected hip disability, have been referred to the RO for development and adjudication, as stated in the Introduction. Stegall, 11 Vet. App. at 271. The Board has considered the Veteran's and his representative's contentions with regard to his claim for a higher rating for his service-connected residuals of sepsis infection, now characterized as right hip pain. While the Board does not doubt the sincerity of the Veteran's belief that his disability is more severely disabling than reflected in the current rating, this is a case where there is consistent medical evidence demonstrating the severity of his disability. The Veteran has been repeatedly examined throughout the period on appeal, and except as with the separate ratings granted under Diagnostic Codes 5251 and 5253, his symptomatology has been consistent, as objectively measured by the medical examiners. Even though the Veteran is competent to describe symptoms that he is capable of observing, 38 C.F.R. § 3.159(a), his opinion is severely outweighed by those of the numerous medical providers that have described his symptoms based on physical examination. Although the Board has considered the lay statements of record, that evidence is insufficient to warrant higher ratings than are provided by this decision. The above determinations are based on consideration of the applicable provisions of VA's rating schedule. The Board also finds that at no time has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). Here, there is an absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the Veteran's service-connected right hip problems-without consideration of other disabilities-have rendered impractical the application of the regular schedular standards. To the contrary, the Veteran has stated on multiple occasions that he has been kept from working by a non-service-connected neck injury he sustained while working as a railroad engineer. The May 2012 VA examiner also found that the Veteran's hip disability did not impact his ability to work. Further, his symptoms are contemplated by the criteria discussed above. Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Furthermore, it bears emphasis that the schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Thus, based on the record before it, the Board does not find that the medical evidence demonstrates any unusual disability with respect to the claim that is not contemplated by the rating schedule. The very symptoms the Veteran experiences are addressed by the rating schedule. Thun v. Peake, 22 Vet. App. 111 (2008). As a result, the Board concludes that a remand to the RO for referral of the rating issues to the VA Central Office for consideration of extra-schedular evaluation is not warranted. The Board has also considered whether a total rating for compensation purposes based on individual unemployability (TDIU) is warranted. The Court has held that entitlement to a TDIU is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The Veteran was denied entitlement to a TDIU in a July 2012 rating decision, and has not appealed that decision. In May 2012, a psychologist opined, following examination, that the Veteran had maintained responsible volunteer positions as an officer in the American Legion, requiring administrative activity nearly every day. There was nothing in the mental examination that would preclude that type of responsibility, or a similar sedentary paid employment. The examiner felt that the Veteran had sufficient capacity for being able to communicate, remember, follow instructions, use judgment, show insight, think abstractly, adapt to changes or stress, concentrate, interact, and communicate with coworkers and/or customers. Similarly, an examiner who provided physical examination in May 2012 determined that the Veteran would not be precluded from sedentary or non-sedentary employment, and found that, in addition to being capable as described by the psychologist, the Veteran was not limited in the ability to sit, stand, walk, hold, bend, lift, carry, or drive or operate machinery. Thus, despite the fact that the Veteran has claimed to be unemployable, the evidence demonstrates that the Veteran is capable of obtaining and maintaining sedentary or non-sedentary employment. Therefore, the question of entitlement to a TDIU is not raised under Roberson and Rice. For all the foregoing reasons, the Board finds that the Veteran's service-connected residuals of sepsis infection, now characterized as right hip pain, warrants a rating of no more than the 10 percent initially assigned based on limitation of flexion. Separate 10 percent ratings are warranted, however, based on limitation of adduction (beginning December 19, 2007), and limitation of extension (beginning May 21, 2012). 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5251, 5252, 5253 (2012). ORDER Entitlement to an initial rating in excess of 10 percent for residuals of sepsis infection, now characterized as right hip pain, based on limitation of flexion, is denied. Beginning December 19, 2007, entitlement to a 10 percent rating, and no higher, based on limitation of adduction of the thigh, is granted, subject to the laws and regulations governing the payment of monetary benefits. Beginning May 21, 2012, entitlement to a 10 percent rating, and no higher, based on limitation of extension of the thigh, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs