Citation Nr: 1321628	
Decision Date: 07/05/13    Archive Date: 07/12/13

DOCKET NO.  03-18 783A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to an initial rating in excess of 20 percent for residuals of malunion of femur with recurrent dislocations, status post right hip arthroplasty, prior to December 8, 2008.  

2.  Entitlement to a rating in excess of 60 percent for residuals, malunion of femur with recurrent dislocations and moderate hip disability, status post right hip arthroplasty from December 8, 2008.  

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to December 8, 2008.  


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs



WITNESSES AT HEARINGS ON APPEAL

The appellant and his wife


ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel


INTRODUCTION

The Veteran served on active duty from June 1967 to June 1969.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  That decision, in pertinent part, granted service connection for residuals, malunion of femur with recurrent dislocations and moderate hip disability, status post right hip arthroplasty, and assigned a 20 percent disability evaluation, effective May 26, 2000.  The Portland, Oregon, RO subsequently assumed jurisdiction over the claim.  

The record reflects that the Veteran appeared at a hearing before a local hearing officer at the RO in May 2005.  A transcript of that hearing is of record.  In May 2007, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board.  A transcript of the hearing is of record.  In November 2007 and January 2010, the Board remanded the claim for an initial rating in excess of 20 percent for additional development.  

In a September 2011 rating decision, the initial 20 percent rating for a right hip disorder was increased to 40 percent, effective from December 8, 2008.  In March 2012, the Board remanded the claims regarding increased ratings and deferred the TDIU issue.  In a January 2013 rating decision, the initial rating for residuals of a right hip disability was increased to 60 percent from December 8, 2008.  The claim for a TDIU was granted from that date also.  The claims that remain on appeal are listed on the title page of this decision.  

The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder."  


FINDINGS OF FACT

1.  Throughout the appeal period and up to December 8, 2008, the Veteran's right hip residuals were manifested by malunion of the femur with marked hip disability.  

2.  For the period from December 8, 2008, the Veteran's right hip residuals are manifested by markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis.  

3.  The competent evidence shows that from March 3, 2003, the Veteran's service-connected disability precluded him from securing and maintaining substantially gainful employment.  


CONCLUSIONS OF LAW

1.  A disability rating of 30 percent, but not higher, is warranted for the Veteran's right hip disability residuals for the period from May 26, 2000, through December 7, 2008.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code (Code) 5054 and 5255 (2012).  

2.  A disability rating of 70 percent, but not higher, is warranted for the Veteran's right hip disability for the period from December 8, 2008, forward.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.59, 4.71a, DC 5054 and 5255 (2012).  


3.  The criteria for entitlement to a TDIU as of March 3, 2003, have been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

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).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

These notice requirements apply to all five elements of a service-connection claim: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom.  Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.  

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

In this case, the Veteran has received all essential notice and has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  VCAA letters were sent in April 2001, July 2005, January 2006, March 2006, August 2007, November 2007, March 2010, and January 2012.  The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claims and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence.  The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess.  

With regards to the claim for a higher initial rating for the service-connected right hip residuals, status post arthroplasty, the Veteran is challenging the initial evaluation assigned following the granting of service connection for this disability.  In Dingess the Court held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled.  Id., at 490-91.  Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  

Here, in the NOD, the Veteran took issue with the initial disability rating assigned, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law.  Id.; see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993).  Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO sent him an SOC that contained, in pertinent part, the criteria for establishing his entitlement to a higher rating for this disability and a discussion of the reasons and bases for not assigning a higher rating, meaning higher than the 60 percent he received after appealing the initial 20 percent rating.  See 38 U.S.C.A. § 7105(d)(1).  Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b) (2012).  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003).  

The Veteran also was provided a hearing before an Acting Veterans Law Judge (VLJ), during which the Veteran presented oral argument in support of the claims.  Although that VLJ is no longer employed at the Board, the transcript is of record and has been considered.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with this regulation.  These two duties consist of: (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked.  Here, during the hearing, the presiding VLJ fully discussed the aspects of the claim, solicited whether there was missing evidence, and ultimately remanded this case for the development to be undertaken. Neither the Veteran nor the Veteran's representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has identified any prejudice in the conducting of that Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that the Veteran had actual knowledge of the elements necessary to substantiate the claim for benefits as the Veteran fully explained the relevant contentions and medical history and why it is the Veteran's belief that a higher rating is warranted.  As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board, resultantly, may proceed to adjudicate these claims based on the current record.  

Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file.  The Board remanded this case for another VA examination which was afforded to the Veteran in September 2012 with addendum from December 2012.  There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined.  38 C.F.R. § 3.327(a) (2012).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95.  The VA examination report is thorough and supported by the record.  This examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Veteran was specifically examined to assess and then reassess the severity of this disability in question.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995).  The records satisfy 38 C.F.R. § 3.326 (2012).  

Furthermore, in obtaining this additional medical examination, the Board is satisfied there was compliance with this remand directive.  See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance).  See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive).  

In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).  

Right Hip - Increased Ratings

Legal Criteria, Factual Background, and Analysis

Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system).  Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record.  Rather, the Board will summarize the relevant evidence, as appropriate, the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  

Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R., Part 4 (2012).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002 & Supp. 2012).  

To [properly] evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 provides for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  38 C.F.R. § 4.45 provides that consideration should be given to weakened movement, excess fatigability and incoordination.  

The Veteran's right hip (which flows from VA hospitalization, medical, or surgical treatment), was initially rated by analogy under Code 5255 (for malunion of the femur); more recent rating decisions and statements of the case reflect that consideration has also been given to DC 5054 (for post-total hip arthroplasty (THA)).  

Under DC 5255, a 10 percent rating is to be assigned for malunion of the femur with slight knee or hip disability.  A 20 percent rating is to be assigned for malunion with moderate knee or hip disability.  A 30 percent rating is to be assigned for malunion with marked knee or hip disability.  A 60 percent rating is to be assigned for fracture of surgical neck with false joint or impairment with nonunion without loose motion and weight bearing preserved with aid of brace.  An 80 percent rating is assigned for fracture of the shaft or anatomical neck with nonunion, with loose motion (spiral or oblique fracture).  38 C.F.R. § 4.71a (2012).  


Under DC 5054, for hip replacement, a 100 percent rating is to be assigned for a one-year period following implantation of the prosthesis.  Thereafter a 90 percent rating is warranted with painful motion or weakness such as to require the use of crutches; a 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion; a 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion; and 30 percent is the minimum rating for symptomatology of a lesser degree.  38 C.F.R. § 4.71 (2012).  

The disability may also be rated based on limitation of motion (LOM).  At the outset, the Board notes that the Veteran's right hip is not ankylosed or manifested by pathology such as flail joint; therefore, ratings under Codes 5250 or 5254 are not appropriate.  Further, under Codes 5251 and 5253, the maximum ratings are 10 percent and 20 percent respectively.  Thus, these Codes are not applicable to the Veteran's claims for increase.  

The only remaining limitation of hip motion Code is 5252 (for limitation of flexion).  Under Code 5252, a 10 percent rating is warranted where limitation is to 45 degrees; a 20 percent rating is warranted where the limitation is to 30 degrees, a 30 percent rating is warranted where the limitation is to 20 degrees; and a 40 percent rating is warranted where the limitation is to 10 degrees.  Normal range of motion (ROM) 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 (2012).  

The Board also notes that Code 5275 provides for ratings based on shortening of a lower extremity, with compensable ratings beginning at one and one fourth inches of shortening.  As the ratings under Code 5275 may not be combined with other residuals of fracture, and the discrepancy in leg lengths in the instant case is no more than 3/4 an inch (see, e.g., VA examination reports in September 2001 and March 2003), Code 5275 has no applicability in the instant case.  See 38 C.F.R. § 4.71a, Code 5275 (2012).  

The Board notes that as the criteria under Codes 5255 and 5054 contemplate weakness, pain, and limitation of motion considering such manifestations as a separate basis for a higher rating for the right hip would violate the 38 C.F.R. § 4.14 prohibition against pyramiding.  See DeLuca, supra.  

The Veteran filed a claim for a right hip disorder in May 2000.  In a February 2002 rating decision, service connection for residuals malunion of the femur with recurrent dislocations, status post right hip arthroplasty, was granted and a 20 percent rating was assigned, effective from May 26, 2000.  The Veteran submitted a notice of disagreement (NOD) with that decision, and this appeal ensued.  The grant was pursuant to 38 U.S.C.A. § 1151 for right hip disability based on VA treatment.  

Review of the records reflects that the right THA was performed in 1996.  In 1999, the Veteran was treated for dislocation of the right hip after a fall.  He underwent additional closed reduction surgery in 1999 and 2000.  Subsequently dated records show recurrent right hip dislocations and in an August 2000 statement, a private physician noted that the Veteran's episodes of dislocation had to do with the placement of the prosthesis.  He thought a revision operation was needed.  VA records show treatment in 2000 and 2001.  The VA physician in 2001 thought that the dislocations were partially based by the positions that the Veteran was placing his hip in.  

When examined by VA in September 2001, the examiner reviewed the record.  It was noted that the Veteran's history included a right THA.  He now had constant right hips pain that radiated into his lower back.  It awakened him at night, and he had increased hip pain with standing.  There was popping and snapping in the hip, and radicular symptoms in the right knee.  Exam of the hips showed a well-healed surgical scar with some tenderness.  Hip flexion was to 100 degrees with abduction to 40 degrees.  The examiner opined that as to the right arthroplasty, the evidence showed some malpositioning of the components which resulted in chronic dislocation of the right hip.  

When the RO assigned a 20 percent rating for the service-connected right hip condition in the February 2002 rating decision, it was pursuant to DC 5255 for moderate hip disability.  Under that code, the Board agrees that a 20 percent rating is maximum rating warranted as marked hip disability is simply not shown.  As noted above, ROM in the hip was essentially normal.  However, the Board notes that pursuant to DC 5054, an increased rating is warranted.  Under that code (which is clearly pertinent here as it provides ratings post TRA), a minimum rating of 30 percent is warranted.  For a rating of 50 percent, there must be moderately severe residuals of weakness, pain, or LOM.  As evidenced above, while he reported chronic right hip pain, ROM was only slightly limited.  Applying the DC that results in the highest rating for the Veteran, it is concluded by the Board that an increased rating of 30 percent is warranted under DC 5054 from the date that service connection was established - May 26, 2000.  

The record shows that the Veteran's right hip disability rating was increased to 40 percent as of December 8, 2000, upon rating decision in September 2011.  This rating was ultimately increased to 60 percent in a January 2013 rating decision, also from the December 8, 2000, date.  The Board will now reexamine the clinical findings for the period in question to determine if 60 percent is the proper disability rating for the right hip condition for the period in question.  

Upon VA examination in March 2003, a history of recurrent right hip dislocations was noted.  Documented malpositioning of the components in the right hip was also indicated.  The Veteran's right hip pain was daily and made worse with repetitive movement and weight bearing.  He had morning stiffness. ROM was usually encumbered.  Flare-ups occurred with repetitive movement where he experienced additional motion loss, weakness, and fatigue.  ROM was to 90 degrees of flexion with 35 degrees of abduction.  The examiner stated that the Veteran's level of impairment "without aggravation from his chronic and recurrent dislocations" would be minimal.  

The Veteran and his wife testified before a Decision Review Officer (DRO) in May 2005 as to the severity of his right hip problems.  The right leg was slightly longer than the right leg, and he was in pain 95% of the time.  Hearing (hrg.) transcript (tr.) at page (pg. 3).  He used a cane due to balance problems (pg. 4), and one occasion, his right hips dislocated just by moving in his chair (pg. 10.)  

When examined by VA in August 2005, the Veteran reported two to four dislocations of the right hip per year.  ROM was to 85 degrees of flexion limited by apprehension and pain.  Abduction was to 30 degrees, also limited by apprehension and pain.  At another VA examination in May 2006, he had 90 degrees of right hip flexion and mild tenderness.  

At the May 2007 hearing, the veteran and his wife again reiterated that the Veteran had recurrent dislocations of the right hip.  

When the Veteran was psychiatrically examined on December 8, 2008, by VA, it was noted that he had had recurrent right hip dislocations since his THA.  Associated with his right hip, he had a chronic sense of discouragement and depression (which is also service-connected).  On exam, he walked with a limp and carried a cane.  Several times during the interview, he had to stand up because of right hip pain.  The Veteran said that he was not able to sit still long enough to work at his computer.  

VA records dated at this time also reflect ongoing narcotic pain medication management.  

At the time of VA examination in April 2010, the Veteran said that he took Oxycodone three times per day.  He said that his hip dislocated for no particular reason, to include when walking lying prone, or while sitting in a recliner.  It interfered with his sleep, and he was never pain free.  His hip pain was baseline 6 to 7 out of 10.  Flare-ups with pain at the 10 level occurred 2 to 3 times per week and lasted 1 to 2 days.  He could walk a city block.  He had a lift in his left show.  He used a cane all of the time and also usually wore a brace on his knee.  Hit gait was right antalgic with a cane.  He was in obvious distress.  He constantly moved his right leg, when sitting or lying down, and kept it in a flexed position.  He had decent strength, 5/5 flexion, extension, abduction, adduction, and internal rotation.  External rotation was a little weaker at 4/5.  

ROM caused the Veteran obvious distress.  His active and passive ROM was the same and, the Veteran experienced pain throughout the entire ROM to a moderate to severe degree.  Right hip ROM was to 45 degrees of flexion with abduction of 9 degrees.  The examiner stated that the Veteran had weakened movement and he tired easily.  There was pain with movement and incoordination.  He also had some atrophy of the buttocks muscles.  The subjective complaints were matched by the objective findings.  The Veteran was not able to sit still for any length of time.  It was also noted that the Veteran was in the midst of a flare-up at this exam, and he would not expect much more loss of ROM at other times.  

When examined by VA in September 2012, right hip flexion was to 45 degrees.  The Veteran was unable to perform repetitive motion testing due to complaints of pain.  Abduction was lost beyond 10 degrees and adduction was limited to the point where the Veteran could not cross his legs.  In a December 2012 addendum report, markedly severe residual pain following implantation of the prosthesis and chronic hip instability which had resulted in multiple episodes of right hip dislocation were noted.  

Following review of the pertinent medical evidence and review of the testimony as provided by the Veteran and his wife, it is the Board's conclusion that an increased rating of 70 percent is warranted as of December 8, 2008.  All reasonable doubt is resolved in the Veteran's favor in making this determination.  

As evidenced above, the Veteran's right hip remained relatively stable per review of the record until the December 8, 2008, date.  While he was being examined for his psychiatric symptoms, it was noted that he was in substantial discomfort whether sitting or standing as a result of his right hip condition.  Records from this period of time also indicate ongoing narcotic pain medication management, and subsequently dated records as summarized above show worsening of the Veteran's ROM in the right hip.  

Under the applicable DCs, a 60 percent rating is warranted for impairment of the femur with nonunion, without loose motion and weight bearing preserved with brace.  For a rating of 80 percent, there must be fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture).  See 38 C.F.R. § 4.71a, DC 5255 (2012).  While it may be argued that the 60 percent rating is met as of increased severity as shown on December 8, 2008, and thereafter, it is concluded by the Board that the more beneficial and applicable DC is 5054.  And, under that code, with all reasonable doubt resolved in the Veteran's favor, it is concluded that as of evaluation on December 8, 2008, the Veteran's right hip disability is best represented by a 70 percent rating for markedly severe residuals weakness, pain, or LOM following implantation of prosthesis.  Clearly, as of that date and thereafter, the Veteran showed less ROM and the need for narcotics to manage his constant right hip pain.  The Veteran does not, however, exhibit those symptoms (painful motion or weakness requiring the use of crutches) that would warranted a 90 percent rating.  Thus, the Board concludes that an increased rating is warranted as of December 8, 2008.  

Final Considerations

In reaching these decisions that are favorable to the Veteran, the Board considered the potential application of other various provisions, including 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).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009).  

As discussed above, as to the service-connected right hip disorder, the Board has chosen to increase the previous disability ratings assigned, for the periods in question as described above.  The DCs used reasonably describes the Veteran's disability levels and symptomatology.  As his disability picture is contemplated by the rating schedule, the assigned schedular evaluations are adequate, and no referral for extraschedular evaluation is required.  Id.  

TDIU

Legal Criteria, Factual Background, and Analysis

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16 (2012).  A finding of total disability is appropriate "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. §§ 3.340(a)(1), 4.15 (2012).  

"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides."  Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  "Marginal employment shall not be considered substantially gainful employment."  38 C.F.R. § 4.16(a) (2010).  The Court noted the following standard announced by the United States Eighth Circuit Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the Claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the Claimant.  Moore, 1 Vet. App. at 359.  

As noted above, a claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider."  Vettese v. Brown, 7 Vet. App. at 34-35.

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment.  In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria include a subjective standard.  It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91 (Dec. 27, 1991).

In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2012).  

A total disability rating 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.  If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more.  38 C.F.R. § 4.16(a) (2012).  

Pursuant to 38 C.F.R. § 4.16(b), when a Claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2012).  

The Veteran initially filed a claim for a TDIU in May 2000.  While the claim was initially denied, numerous rating decisions over the years resulted in establishment of various service-connected conditions and/or higher ratings.  Ultimately, the combined disability ratings from May 2000 have met the TDIU eligibility criteria as set forth under 38 C.F.R. § 4.16(a) described above.  It is noted that in addition to the right hip disorder (rated 20 percent since May 2000), the Veteran has established service connection for depression (rated as 50 percent since May 2000), a lumbar spine disorder (rated 20 percent since May 2000), and a right knee disorder(rated 10 percent since May 2000).  All of these conditions are associated with his right hip TRA and combine for a 70 percent disability rating.  Moreover, a TDIU was granted, effective December 8, 2008, upon rating decision of January 2013.  

Consequently, the remaining question before the Board is whether the regulations were met for the grant of a TDIU at an earlier date for the period since May 2000.  

It is noted that the Veteran has submitted many documents in which he attested to the fact that he had not worked since 1992.  The clinical records as summarized above include numerous VA examination reports.  Review of the records reflects that when the Veteran was examined by VA in September 2000 and 2001, he reported that he was self-employed and worked at home.  When examined by VA in March 4, 2003, he was not working primarily due to his right hip problems, and the subsequently dated records appear to show that he never returned to the work force in the years thereafter.  Also, the records show that he has right hip manifestations whether he is in a sitting or standing position, and is unable to even sit at a computer for any length of time.  

From the record it appears that the Veteran is able to perform many aspects of daily living.  He is able to ambulate at least some distance with the use of a cane and/or brace.  However, the law provides that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity, such as the Veteran in this case.  See 38 C.F.R. § 4.10 (2012).  Moreover, a Veteran also does not have to prove that he or she is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a) (2012); Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  

The severity of several of the Veteran's service-connected disorders which include a significant psychiatric disorder (depression) and various orthopedic conditions are significant.  And, as noted above, he experiences discomfort whether sitting or standing.  While the Veteran's advancing age (mid 60s) is also a factor that likely also affects his ability to work, advancing age and any nonservice-connected disorders may not be considered for purposes of TDIU.  38 C.F.R. § 4.19 (2012).  However, in the present case, there is ample evidence that the Veteran has been unable to work as of examination on March 4, 2003.  With resolution of the doubt in his favor, the Veteran's service-connected disorders, in particular the severity and resulting dangers of his right hip condition, prevented him from securing employment as of the March 4, 2003 date.  38 C.F.R. §§ 3.341, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  


ORDER

A 30 percent rating is granted for the Veteran's status post right hip arthroplasty residuals to include malunion of the femur with recurrent dislocations, from the earlier effective date of May 26, 2000, subject to the regulations governing payment of monetary awards.  

A 70 percent rating is granted for the Veteran's status post right hip arthroplasty residuals to include of malunion of the femur with recurrent dislocations, from the earlier effective date of December 8, 2008, subject to the regulations governing payment of monetary awards.  

A TDIU is granted from the earlier effective date of March 4, 2003, subject to the regulations governing payment of monetary awards.  


____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs