Citation Nr: 1752329 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-34 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to an increased rating in excess of 20 percent for a right shoulder disability. 3. Entitlement to an increased rating in excess of 20 percent for right knee instability. 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1989 to October 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In a July 2015 decision, the Board granted a 20 percent disability rating for the service-connected right shoulder disability during the entire pendency of the appeal. This case was also last remanded by the Board in July 2015 for additional development. There has been substantial compliance with the remand instructions. See Dyment v. West, 13 Vet. App. 141 (1999). The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. In October 2015 the Veteran submitted a Form 21-8940 application for TDIU. In light of the Court's holding in Rice, even though the RO issued a separate rating decision during the course of the appeal denying TDIU, the Board has thus considered a TDIU claim as part of the Veteran's pending increased ratings claim and has accordingly listed the raised TDIU claim as an issue above. FINDINGS OF FACT 1. Throughout the appeal period the Veteran's right shoulder disability has been manifested by limitation of motion to shoulder level. At no point during the appeal period has limitation of motion to midway between the side and shoulder level been shown. 2. The Veteran's right knee instability has not been manifested by medial, lateral or collateral instability; stability testing has been normal. At no point during the appeal period has severe lateral instability been shown. 3. A hip disability was not manifest during service and is unrelated to a service-connected disease or injury. 4. Service connection is currently in effect for bipolar disorder, right shoulder disability, thoracolumbar spine arthritis, knee instability, and knee limitation of flexion and extension. The combined disability rating is 80 percent. 5. The Veteran's service-connected bipolar disorder precludes substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2017). 2. The criteria for an increased rating in excess of 20 percent for right knee instability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 3. The criteria for service connection for a hip disability are not met. 38 U.S.C. § 1101 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 4. The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2017). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Therefore, the Board will determine whether further staged evaluations are warranted. Under DC 5010, traumatic arthritis is evaluated as degenerative arthritis. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the diagnostic codes, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. DC 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f) (2017). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2017). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Shoulder Limitation of motion of the shoulder is rated under Diagnostic Code 5201, and depends on whether it is the major (dominant) shoulder or the minor (non-dominant) shoulder. This Veteran is right side dominant; therefore, the provisions for the major side apply. Under the code, limitation of motion to shoulder level (90 degrees) warrants a 20 percent evaluation. Limitation of motion to midway between the side and shoulder level (45 degrees) warrants a 30 percent evaluation. Limitation of motion to 25 degrees from the side warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2017). Other codes deal with alternative shoulder disabilities. For example, Diagnostic Code 5202 provides ratings for other impairment of the humerus. The provisions for the major side are: malunion of the humerus with moderate deformity is rated as 20 percent; malunion of the humerus with marked deformity is rated as 30 percent. Recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, are rated as 20 percent for the major shoulder; recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, are rated as 30 percent. Fibrous union of the humerus is rated as 50 percent. Nonunion of humerus (false flail joint) is rated as 60 percent. Loss of head of the humerus (flail shoulder) is rated as 80 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2017). Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I (2017). When examined by VA in January 2011, the Veteran complained of right shoulder pain and stiffness without deformity or instability. There was no locking, lack of endurance, effusion or episodes of dislocation or subluxation. He reported difficulty with exercising, lifting and carrying. There was no effect on his activities of daily living. There was no objective evidence of pain during active range of motion. There was no ankylosis. There was no additional loss of range of motion with repetitive use. When examined at that time, the pain free range of motion of the right shoulder after repetition was flexion to 110 degrees, abduction to 110 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. In November 2015, the Veteran was afforded a new VA examination. The Veteran stated that felt his right shoulder was the same since his last VA examination. He treated his shoulder with Tylenol. He did not report flare ups but did report functional loss including a decreased ability to lift or perform overhead motions with the right arm. Right shoulder flexion was to 140 degrees. Abduction was to 90 degrees. Initial rotation was to 70 degrees and external rotation to 50 degrees. Pain was noted on examination and caused functional loss, and including pain on weight bearing. There was also crepitus. Upon repetitive testing, flexion was to 130 degrees; abduction was to 85 degrees; internal rotation was to 70 degrees; and external rotation was to 45 degrees. The examiner noted pain limited functional ability with repeated use over time, with flexion to 130 degrees; abduction to 85 degrees; internal rotation to 70 degrees; and external rotation to 45 degrees. There was no reduction in muscle strength and no ankylosis. The Veteran had a rotator cuff condition noted but no instability, dislocation or lateral pathology suspected. There was no clavicle, scapula, or other joint condition suspected. There was no loss of head, nonunion or fibrous union of the humorous and no malunion. The examiner noted decreased ability to lift with the right arm more than medium to heavy weight or perform overhead motions of the right arm more than occasionally. The Board finds that even when taking into account the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holdings in DeLuca and Mitchell that the appellant's lost right shoulder motion, which at its worst shows flexion and abduction limited to 130 degrees and 85 degrees, respectively, when factoring in pain and repetitive use, equates to limitation of motion of the major arm at shoulder level but not midway between side and shoulder level (45 degrees). Therefore, the Board finds that the criteria a greater than 20 percent rating have not been met under Diagnostic Code 5201. 38 C.F.R. § 4.71. Regarding other potentially applicable diagnostic codes, the Veteran's shoulder disability is not manifested by recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movement or fibrous union of the humerus to merit higher disability evaluations. Thus, Diagnostic Code 5202 is not applicable here. Consideration under Diagnostic Code 5203 for impairment of the clavicle or scapula does not result in a higher rating as the maximum evaluation available under that code is 20 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2017). Additionally, without evidence of ankylosis of scapulohumeral articulation, a higher evaluation is not available under Diagnostic Code 5200. Notably, ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. This Veteran has motion in his shoulder. Based upon the guidance of the Court in Hart, the Board has considered whether further staged rating is appropriate, however as explained above, a rating above 20 percent is not warranted. Even the Veteran himself noted his condition had not worsened since his last VA examination. In short, the preponderance of the evidence is against the claim for an increased rating; therefore, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim must be denied. Knee DC 5260 provides that a 0 percent rating is assignable for flexion of the leg limited to 60 degrees. A 10 percent rating is assignable for flexion of the leg limited to 45 degrees. A 20 percent rating is assignable for flexion of the leg limited to 30 degrees. A 30 percent rating is assignable for flexion of the leg limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261 provides that a 0 percent rating is assignable for extension of the leg limited to 5 degrees. A 10 percent rating is assignable for extension of the leg limited to 10 degrees. A 20 percent rating is assignable for extension of the leg limited to 15 degrees. A 30 percent rating is assignable for extension of the leg limited to 20 degrees. A 40 percent rating is assignable for extension of the leg limited to 30 degrees. A 50 percent rating is assignable for extension of the leg limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5259, cartilage, semilunar, removal of, symptomatic, is rated at 10 percent. Under DC 5258, cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint, is rated as 20 percent. See 38 C.F.R. § 4.71a, DCs 5259, 5258. DC 5257 concerns "other" impairment of the knee, including recurrent subluxation or lateral instability, and provides that a 10 percent rating is assignable for slight consequent disability. A 20 percent rating is assignable for moderate consequent disability. A 30 percent rating is assignable for severe consequent disability. 38 C.F.R. § 4.71a, DC 5257. DC 5256 provides that a rating of at least 30 percent is assignable for ankylosis of the knee. 38 C.F.R. § 4.71a, DC 5256. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. During his January 2011 VA examination, the Veteran reported pain as well as giving way of the knee. There was no locking, effusion, dislocation, or subluxation. He had difficulty with sports, driving, and exercising. There was no objective evidence of pain during active range of motion. There was no ankylosis. There was no additional loss of range of motion with repetitive use. Flexion of the knee was to 110 degrees and extension to 0 degrees. There was no medial and lateral collateral ligament instability. The varus was normal with no motion and the anterior and posterior cruciate ligaments had 0 mm of motion. The McMurray's test was negative. In October 2014 VAMC treatment records note that the Veteran's knee was stable and he could do daily activities while on pain medications. Other VAMC treatment records noted his knee pain was aggravated intermittently by helping his father with activities of daily living. In November 2015, the Veteran was afforded a VA examination, and the examiner noted arthritis. The examiner noted the Veteran reported flare ups including decreased ability to walk, stand, squat, knee and climb. He also described functional loss with decreased ability to ambulate. With range of motion testing flexion was to 125 degrees and extension was to 0. Pain was noted on examination and caused functional loss including evidence of pain on weight bearing. The Veteran performed repetitive use testing where there was no change in range of motion afterwards. The examiner noted pain limited functional ability with repeated use over a period of time, with flexion ending at 120 degrees and extension ending at 5 degrees. Regarding flare ups, the examiner noted pain caused functional loss during flare ups, with flexion to 120 degrees and extension to 5 degrees. The examiner also noted instability of station, disturbance of location, and interference with standing. Muscle strength was normal and the Veteran had no ankylosis. After joint stability testing was performed, all the test results were normal and there was no history of subluxation. The Veteran did not have a history of tibial or fibular impairment and no meniscal condition. He had no scar great then 39 square cm from his residuals of ACL reconstruction. The examiner noted the Veteran used a brace. The Veteran's knee instability is currently rated under Diagnostic Code 5257. It has been rated under this code since 1990 with a 20 percent rating since October 1995 and is considered a static disability. During the course of the appeal, the Veteran also received a separate 10 percent rating for limitation of motion for flexion, and a noncompensable rating for extension. Regarding instability, both the 2011 and 2015 VA examination noted that the Veteran did not actually display instability or subluxation. All testing for joint instability came back normal. Therefore, there is no indication that the Veteran's instability rating warrants a 30 percent disability rating based on severe instability. While the Veteran displays pain and functional loss, this is contemplated in his current 20 percent rating for instability, as well as his 10 percent disability rating for loss of range of motion for flexion. To account for his functional impairment including pain on motion and less than full flexion range of motion, during the course of the appeal the Veteran was assigned a 10 percent rating for the right knee based upon limited and painful flexion, under Diagnostic Code 5260, for the entire appeal period. He was also assigned a separate noncompensable rating for extension. The Veteran's limitation of flexion is not subject to a higher rating for the right knee under DC 5260. The Veteran now has a 10 percent rating throughout the entire appeal period based on based on evidence of painful motion. The Veteran's examinations show he demonstrated flexion to at worst 110 degrees in the right knee, which even when taking into consideration painful motion, repetition of motion, and flare ups, is noncompensable under DC 5260. The Veteran's 10 percent rating for his service-connected right knee flexion has already taken into consideration the manifestation of painful motion under DC 5010 and 38 C.F.R. § 4.59. Thus, a higher rating is not warranted under 5260. Regarding extension, even when considering pain, there is no evidence from the file or examinations that the Veteran had extension limited to at least 10 degrees. Furthermore, no ankylosis was noted. There is no evidence of malunion of the tibia and fibula on either side, and thus neither knee disability warrants an increased evaluation under DC 5262. Turning to the applicability of DC 5259, the record does not indicate removal or dislocation of the semilunar cartilage. Therefore the Board finds a separate rating under DC 5259 or 5258 is not warranted. The Board recognizes the Veteran's complaints of knee pain. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In this case, however, the Board finds that the effects of pain reasonably shown by the record are contemplated in the current disability ratings under DCs 5260 and DC 5257. The foregoing evidence simply does not show that pain has caused functional loss comparable to any of the criteria for an evaluation in excess of those already assigned. The limitation caused by pain is not equivalent to flexion limited to 30 degrees or severe lateral instability. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, supra. Based upon the guidance of the Court in Hart, the Board has considered whether staged rating is appropriate. As explained above, however, the stages established by the RO are expressly found to be appropriate. In short, the preponderance of the evidence is against the claim for an increased rating; therefore, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim must be denied. Service Connection for Hip In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For any disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2017). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (2017); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In his January 2011 VA exam the Veteran noted he had complaints of hip pain which had since resolved and presently he had no complaints. The examiner noted that the right hip condition which had since resolved was less likely as not to be the direct result of the service-connected right knee, as the right hip pain had improvement and complete resolution. The Veteran was afforded an examination in November 2015. The hip x-ray during the exam was reported to be normal without any findings except limited right hip flexion to 110 degrees (125 is normal). The examiner noted the Veteran indicated that he was not having any significant hip problems at this time and had no evidence of a chronic hip disability. In the October 2016 VA addendum opinion the examiner found that it was less likely than not that the Veteran's right hip condition (a mild strain) was directly caused or aggravated beyond its natural progression by his service-connected right knee condition. This was based upon reviewing the Veteran's VA treatment records for his hip and knees, and being unable to find any treatment records for a hip condition, specifically that there was no evidence that the Veteran has a chronic antalgic gait. The examiner further noted there no medical evidence provided by an orthopedic or other specialist in support of the claim that the Veteran's hip strain was caused or aggravated by his knee. Regarding secondary service connection, the claim must be denied as examiner stated there was no evidence, such as indication of an antalgic gait that the Veteran's knee condition caused or aggravated the Veteran's 2015 mild hip strain. The Veteran's claims that his current condition is etiologically related to service are outweighed by the competent and probative 2016 medical opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore service connection on a secondary basis must be denied. The Veteran has only put forth the theory of entitlement to service connection based on secondary service connection, which as explained above, cannot be granted. Therefore, service connection must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the weight of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107 (b) (2012). TDIU A TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent. 38 C.F.R. § 4.16(a). In calculating whether a Veteran meets that 60 or 70 percent schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(a). In any event, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b); see 38 C.F.R. §§ 3.340, 3.341, 4.15 (2017). In this regard, 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 that 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 a Veteran's actual industrial impairment. In a pertinent precedent decision, 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 for determining unemployability 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 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). The Court has also held that a Veteran's advancing age and nonservice-connected disabilities may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him or her in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and keep employment. Thus, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Service connection is effect for bipolar disorder, right shoulder disability, thoracolumbar spine arthritis, knee instability, knee limitation of flexion and extension. The combined disability rating is 80 percent. The Veteran is currently rated at 50 percent for his bipolar disorder. In November 2012, the Veteran reported at the VAMC that he has been looking for some jobs but had not had success and had not worked in 3 years. He stated that he worked in "transportation", and his last job was driving a school bus. In October 2015, the Veteran submitted a Form 21-8940, on which he stated he had not worked in over five years in part due to his bipolar disorder. He noted he had a high school level education. In December 2015, the Veteran was afforded a VA examination for his service-connected bipolar condition. The examiner noted the Veteran displayed rapid speech, including some over expansive communication with problems staying focused on the question asked. He responded well to feedback but much of his communication was inappropriate and tangential. His mood was hypomanic, with flight of ideas, and he was distractible, with anxiety noted. His thoughts tended to wander, but he was able to get back on topic. The Veteran displayed symptoms including anxiety; sleep impairment; mild memory loss; impairment of short and long term memory; circumstantial, circumlocutory or stereotyped speech; disturbance of mood and motivation; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and inability to establish and maintain effective relationships. Overall, the examiner noted that the Veteran had last worked 6 years ago when he reported being sexually assaulted by his supervisor and after that he felt like he could not trust people and took a long time to recover from the betrayal. He also noted the Veteran experiences hypomania where he does not sleep for days, rapid and overly expansive speech, and excessive anxiety. The examiner opined that the Veteran has difficulty coping with stress and getting along with people and is most likely unemployable due to his mental illness. The examiner stated "It seems clear that his mental condition is a primary factor in his inability to function at any job. He is easily distracted, anxious, and suspicious, and his thoughts are often racing, tangential and difficult to manage for any employer...As far as unemployability, it would be difficult for him to work for anyone, given his hypomania, problems focusing and concentrating, and paranoid tendencies." Resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected disability of bipolar disorder precludes him from obtaining and/or maintaining employment. The December 2015 examiner noted that the Veteran would have a difficult time working for or with anyone given his symptoms from his bipolar disorder. The issue of whether a TDIU should be awarded is not a medical issue, but a legal determination for the adjudicator to make. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). While Social Security Administration (SSA) records note that SSA found his bipolar disorder to be only mildly disabling, the Board is not bound by SSA findings and finds the December 2015 examination highly probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The Board finds that the weight of the evidence, including the examiner's findings, along with the Veteran's statements and the Veteran's work history, demonstrate that he has met the criteria set forth in § 4.16, and that a TDIU based upon service-connected disabilities is warranted. ORDER Entitlement to an increased rating in excess of 20 percent for a right shoulder disability is denied. Entitlement to an increased rating in excess of 20 percent for right knee instability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to a TDIU is granted, subject to regulations applicable to the payment of monetary benefits. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs