Citation Nr: 1334546 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-38 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to initial ratings for avascular necrosis of the left hip, status post total left hip replacement, rated 80 percent from July 9, 2009, to January 13, 2010; and 50 percent from March 1, 2011. 2. Entitlement to a total rating by reason of individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant (the Veteran) and his spouse ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1987 to August 1988. This case comes to the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for avascular necrosis of the left hip, rated 30 percent disabling. By rating decision in May 2010, the RO awarded the Veteran a temporary total rating for avascular necrosis of the left hip under the provisions of 38 C.F.R. § 4.30. The RO also assigned a 100 percent rating following the termination of the temporary total award until March 1, 2011. By rating decision dated in June 2011, the RO awarded a 50 percent rating for residuals of a total left hip replacement from March 1, 2011. As the Veteran continues to express dissatisfaction with award and it is less than the maximum under the applicable criteria, the claim remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Appeal is also taken from an August 2011 rating decision that denied TDIU. In August 2012, a travel board hearing was held before the undersigned in North Little Rock, Arkansas. A transcript of the hearing is associated with the Veteran's claims file. In March 2011, the Veteran raised the issue of entitlement to an effective date for service connection of avascular necrosis of the left hip earlier than July 9, 2009. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. From July 9, 2009, until January 13, 2010, the Veteran's left hip disability was manifested by an inability to bear weight, without demonstration of ankylosis of the joint. 2. Since March 1, 2011, the Veteran's status post left total hip arthroplasty is productive of moderately severe residuals, with pain and limitation of motion. 3. Service connection is currently in effect for residuals of a total left hip replacement, evaluated 50 percent disabling; and bronchial asthma, rated 30 percent disabling. Prior to his surgery in January 2010, the Veteran's left hip disability was rated at 80 percent. The combined evaluation from July 9, 2009, until January 13, 2010, was 90 percent. The current combined evaluation is 70 percent. 4. The Veteran has an associates degree and work experience as a salesman. 5. The service-connected disabilities, standing alone, are shown to be of such severity as to effectively preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 80 percent for avascular necrosis of the left hip were not met between July 9, 2009, and January 13, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5255 (2013). 2. The criteria for an initial rating in excess of 50 percent for the residuals of a total left hip replacement have not been met since March 1, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Code 5054 (2013). 3. The requirements for a TDIU have been met for the entire appeal period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340. 3.341, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess 19 Vet. App. At 490. A September 2010 statement of the case (SOC) provided notice on the "downstream" element of initial rating; while June 2011 and April 2012 supplemental SOCs (SSOC) readjudicated the matter after the Veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105 (West 2002); see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records, including records utilized in a disability determination by the Social Security Administration (SSA) have been secured. The Veteran was afforded VA medical examinations, most recently in July 2011. The Board finds that the opinions obtained are adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran has argued that the most recent neurologic examination was not sufficient for rating purposes in that it was not performed during an exacerbation of his left hip disorder, the Board finds that the examination was adequate insofar as electrodiagnostic testing was able to be performed and the examiner's opinion was largely based on the results of that testing. Moreover, the July 2011 examination was largely performed to evaluate the Veteran's claim for TDIU and this benefit is being granted in this decision. Therefore, there is no reason to belabor the impact of the VCAA on the matter and any notice defect or duty to assist failure is harmless. Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2013). Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2010). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2010). In this case, the Board has considered the entire period of initial rating claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). More generally, 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Court has also held that VA's regulations pertaining to whether a compensable rating is warranted for pain (as shown by adequate pathology and evidenced by the visible behavior in undertaking motion), 38 C.F.R. §§ 4.40 and 4.59, apply regardless of whether the painful motion is related to arthritis. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Initially, the Board notes that it has reviewed all of the evidence in the veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Rating Left Hip Service connection avascular necrosis of the left hip granted service connection for avascular necrosis of the left hip was granted by the RO in a January 2010 rating decision. A 30 percent initial disability rating was awarded under the provisions of Code 5255 from the date of claim in July 2009. The rating was revised to 80 percent with the same effective date. By rating decision in May 2010, the RO awarded the Veteran a temporary total rating for residuals of a total left hip replacement under the provisions of 38 C.F.R. § 4.30, and then assigned a 100 percent rating following the termination of the temporary total award until March 1, 2011, under the provisions of Code 5054. This is the maximum under the applicable criteria and the rating is not on appeal. By rating decision dated in June 2011, the RO awarded a 50 percent rating for residuals of a total left hip replacement from March 1, 2011, also under Code 5054. 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. Diagnostic Code 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. Diagnostic Code 5251 provides a 10 percent disability rating for limitation of extension of the thigh that is limited to 5 degrees. Id. Diagnostic Code 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. Id. Diagnostic Code 5255 provides ratings based on impairment of the femur. Malunion of the femur warrants a 10 percent rating with slight knee or hip disability, a 20 percent rating with moderate knee or hip disability, and a 30 percent rating with marked knee or hip disability. A 60 percent rating is warranted for fracture of the surgical neck with a false joint, or also for fracture of the shaft or anatomical neck with nonunion but without loose motion and where weight bearing is preserved with aid of a brace. An 80 percent rating is warranted for fracture of the shaft or anatomical neck with nonunion and loose motion (spiral or oblique fracture). Id. An examination was conducted by VA in September 2009. On examination of the left hip, the Veteran described instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, and tenderness. The Veteran reported episodes of dislocation or subluxation several times per week. He had daily flare-ups that were described as being severe. He was unable to stand without crutches and was noted to be non-ambulatory. Examination confirmed that the Veteran was non-weight-bearing. Crepitus, tenderness, pain at rest, and instability were found. Range of motion was described as zero degrees flexion, extension and abduction. Joint ankylosis was not found. An MRI study showed extensive edema in the left femoral head to the neck and a large area of necrosis involving the weight-bearing portion of the left femoral head. The impression was avascular necrosis of the left femoral head with very early evidence of collapse and small subchondral fracture of the femoral head. The record shows that the Veteran was non-weight bearing as a result of his left hip disability on examination in September 2009. The 80 percent disability rating is based upon this fact alone under the provisions of Code 5255. For a rating in excess of 80 percent, ankylosis of the hip at an extremely unfavourable angle where the foot will not reach the ground would have to be demonstrated. While the September 2009 VA examination found no range of motion of the hip, ankylosis was not found. Additionally, it is noted that, while the Veteran had no documented range of motion of the hip, he was able to maintain the hip joint in full extension (zero degrees). As such a rating in excess of 80 percent is not warranted prior to the Veteran's surgery in January 2013. The Veteran underwent a total hip arthroplasty of the left hip on January 13, 2010. A temporary total rating was assigned as of that date under the provisions of 38 C.F.R. § 4.30. Following termination of the temporary total, a 100 percent rating was awarded for residuals of a total hip replacement under the provisions of Code 5054. These ratings are the maximum allowable and are not on appeal at the present time. Under Diagnostic Code 5054, a 50 percent rating is assigned for a hip replacement with moderately severe residuals, including weakness, pain, or limitation of motion. A 70 percent disability is assigned under this Code for a markedly severe residual weakness, pain, or limitation of motion following implantation of a prosthesis. A 90 percent disability evaluation is assigned following implantation of prosthesis with painful motion or weakness such as to require the use of crutches. 38 C.F.R. § 4.71a. An examination was conducted by VA in April 2011. At that time, left hip symptoms included giving way, instability, p[ain, stiffness and weakness. The Veteran no longer described decreased speed of joint motion or episodes of dislocation or subluxation. He did have repeated effusions, with swelling and tenderness. He stated that he was unable to stand for more than a few minutes or walk for more than a few yards. He used a cane to aid in ambulation. It was noted that he had progressed quite well from the left total hip replacement, but had recently been referred to physical therapy for complaints of leg weakness due to lack of conditioning. Weight bearing was affected due to poor propulsion. Range of motion was flexion from 0 to 60 degrees and extension from 0 to 30 degrees. He could not cross his left leg over the right and could not toe out over 15 degrees. There was additional evidence of pain following repetitive motion and motion was further limited in flexion, which was noted to be from 0 to 50 degrees. There was no joint ankylosis. X-ray studies showed a total hip arthroplasty in good alignment, without evidence of loosening or other bony problems. After a review of the lay and medical evidence, the Board finds that the Veteran's status post left total hip arthroplasty is no more than 50 percent disabling. The current evaluation contemplates painful motion and moderately severe residuals. A higher evaluation may be assigned only if there are markedly severe residuals. The objective clinical evidence of record for the entire rating period on appeal since the Veteran's left hip replacement shows that the Veteran's status post left total hip arthroplasty residuals are not markedly severe. Significantly, the Veteran's April 2011 VA examination showed that the Veteran had range of motion of the left hip from zero (0) to 60 degrees in flexion, with extension to 30 degrees. The Veteran had pain on motion with additional limitation of flexion to 50 degrees. There was no ankylosis. The Veteran did complain of instability, but no locking, dislocation, or subluxation of the left hip joint. There is no indication that he has additional functional impairment, above and beyond the 50-percent level for the left hip, which would support an even higher rating. In this regard, the Board points out that the Veteran's VA examination report was negative for objective evidence of incoordination or excess fatigability. See DeLuca, citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. As noted, there was no evidence of instability or locking, although the Veteran reports experiencing pain and effusion. Although there was limited and painful motion, his pain did not significantly inhibit his range of motion or otherwise create functional limitations. Rather, when tested his remaining functional use was no worse than 50 degrees of flexion and 30 degrees extension. There also is no objective clinical indication that he has other symptoms (e.g., premature or excess fatigability, weakness, incoordination) which otherwise result in any additional functional limitation in his left hip to a degree or extent that would support a higher rating. In particular, the April 2011 VA examiner noted only an additional 10 degrees further limitation upon repetitive flexion, but found that there was no additional weakness, fatigability, incoordination, or lack of endurance. As a result, his current 50 percent rating for status post left total hip arthroplasty adequately compensates him for the extent of his pain. There is also no basis for any higher rating under any other potentially applicable diagnostic code. As such, the Board does not find that the medical evidence supports a higher schedular rating. Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. Prior to his surgery, the Veteran's left hip disability was rated at the maximum level absent extremely unfavorable ankylosis. The inability to bear weight directly corresponds to the schedular criteria for the 80 percent evaluation for femur impairment. (Code 5255), which also incorporates various orthopedic factors that limit motion or function of the knee. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. The post-surgical impairment is productive of moderately severe residuals, but not markedly severe residuals. Thus it is specifically contemplated in the schedular rating criteria. For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's left hip disabilities, and no referral for an extraschedular rating is required. TDIU The Veteran contends that he is unable to obtain or retain substantially gainful employment solely as a result of his service-connected disabilities. During his hearing on appeal, the Veteran testified that he took numerous pain medications for his hip disability, which made it difficult to concentrate. He also noted that he was receiving SSA benefits for the disability from his service-connected disorders alone and that he could no longer work as a salesman, where he had a significant amount of experience. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U. S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis, included by not limited to employment such as a family business or sheltered workshop. When earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16. Service connection is currently in effect for residuals of a total left hip replacement, evaluated 50 percent disabling; and bronchial asthma, rated 30 percent disabling. Prior to his surgery in January 2010, the Veteran's left hip disability was rated at 80 percent. Thus, the combined evaluation from July 9, 2009 until January 13, 2010 was 90 percent. The current combined evaluation is 70 percent. The Veteran testified at his hearing on appeal that he had an associates degree and work experience as a salesman. Documentation from the SSA shows that the Veteran was found to be totally disabled as of January 2011 due to his left hip disability and bronchial asthma. Review of the record shows that the Veteran has been evaluated regarding his ability to work by VA on several occasions in the past year. On examination in April 2011, the examiner stated that the Veteran could not return to his employment in sales because he needed to do too much walking or lifting and was still in "too much pain." The examiner stated that he would be able to do "some sit down work" because the Veteran was able to travel and could use both upper extremities. On examination by VA in July 2011, the examiner reviewed the record and noted that the Veteran was prevented from performing chores, shopping, exercise, sports, and recreation. There was a severe impact on ability to travel and moderate impact on bathing, dressing, toileting, grooming and driving. The examiner commented that the Veteran's spouse helped him with his socks and shoes, but that he was otherwise able to dress himself. The examiner opined that, although the Veteran was not a candidate for work involving heavy lifting, he was able to engage in sedentary work if allowed to sit or stand as needed. The Veteran's respiratory disability was also reviewed and the examiner opined that the Veteran's asthma did not affect his ability to obtain and hold gainful employment because the Veteran was noted to be stable on medications and had had no recent visits to the emergency room for asthma. In a June 2011 statement, a VA physician, who was noted in hearing testimony to be the Veteran's primary care physician, noted that the Veteran was suffering from chronic pain in the left hip. His present condition was noted to prevent him from doing chores, exercise, sports, recreation, and travelling. The Veteran experienced severe pain while driving and bathing and moderate pain on toileting and grooming. The left hip showed poor propulsion and he was unable to stand for more than a few minutes or walk more than a few yards. The chronic pain caused lack of sleep and difficulty with concentration for which the Veteran was being referred to the pain management clinic. The examiner concluded that, at this time, the Veteran might not be able to handle a job. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, it is clear that, prior to his surgery, the Veteran was unable to work as a result of his service-connected left hip and respiratory disability. The Veteran was non-weight bearing on his left leg and, in combination with his asthma was not able to work. Following his surgery, after the expiration of the schedular 100 percent that is warranted under the schedular criteria for Code 5054, it was indicated that the Veteran would probably be able to perform sedentary employment. At that time, however, it was also noted that he would not be able to work as a salesman, a job with which the Veteran has a significant amount of experience. The Board is of the opinion that employment as a salesman is actually job that is primarily sedentary in nature. Review of the medical evidence regarding his respiratory disorder shows that, while considered stable on medications, the pulmonary function testing conducted in July 2011 shows a worsening of the disability over that noted in July 2009. While the testing does not provide a basis for a rating in excess of 30 percent, it does, nevertheless, demonstrate an increasing level of disability. Although the examiner in July 2011 opined that each of the Veteran's service-connected disabilities did not cause unemployability, the opinions appear to have been rendered for each distinct disorder and not for a combination of the two. Finally, the Veteran's primary care physician has indicated that the Veteran is not employable without improvement in the Veteran's pain management. Review of VA outpatient treatment records through July 2012 that are available for review by the Board show no significant decrease in the level of the Veteran's pain. Under these circumstances, the Board finds that these factors take the Veteran's case outside of the norm. For this reason, with the resolution of reasonable doubt, entitlement to TDIU is demonstrated throughout the pendency of this appeal. ORDER An initial rating in excess of 80 percent for avascular necrosis of the left hip from July 9, 2009, to January 13, 2010, is denied. An initial rating in excess of 50 percent for status post total left hip replacement, from March 1, 2011, is denied. TDIU is granted. ____________________________________________ F JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs