Citation Nr: 1752338 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-09 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation higher than 10 percent for right hip strain under Diagnostic Code 5299-5255. 2. Entitlement to an initial evaluation higher than 10 percent for right hip strain under Diagnostic Code 5253. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from September 1987 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied the Veteran's claim of entitlement to service connection for right hip strain. In June 2015, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the proceeding is of record. Historically, following the Board's grant of service connection for right hip strain in in May 2010, the RO assigned an initial 10 percent evaluation under Diagnostic Code 5299-5255 based on painful motion. Eventually, following the Veteran's September 2010 Notice of Disagreement (NOD) seeking an increased initial rating, the RO assigned a separate 10 percent evaluation, effective May 4, 2011, based on limitation of adduction of the thigh under DC 5253. This case was last before the Board in May 2017, where it remanded the claim to afford the Veteran with an adequate VA examination. See Correia v. McDonald, 28 Vet. App. 158 (2016). The RO continued the denial of the Veteran's claim, as reflected in the August 2017 Supplemental Statement of the Case (SSOC), and returned the claim to the Board for further review. The Board notes that there was substantial compliance with its May 2017 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); The issue of entitlement to a TDIU was raised by the record as a component of the claim for increase on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, when TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits of the underlying disability. Id. The issue of entitlement to a TDIU on an extraschedular basis is addressed in the REMAND portion of the decision below and is being REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At no point during period on appeal does the medical evidence show any right hip ankylosis, right hip flair joint, or an impairment of the femur. 2. From February 18, 2011 to March 14, 2012, the medical evidence shows that the Veteran's right hip flexion was limited to 40 degrees. 3. Resolving all reasonable doubt in the Veteran's favor, from February 18, 2011, the medical evidence shows that he was unable to cross his legs. 4. The Veteran has not met the schedular criteria for a TDIU, because he does not have a single disability rated at 60 percent or more and, the combined rating of his service-connected disabilities is not 70 percent or more. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation higher than 10 percent for right hip strain under DC 5299-5255 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5255 (2016). 2. The criteria for a separate 10 percent initial evaluation, effective February 18, 2011, but no earlier for right hip strain under DC 5253 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253 (2016). 3. Entitlement to a separate 10 percent evaluation, from February 18, 2011, but not earlier, to March 14, 2012, but not later, for right hip strain under DC 5252 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252 (2016). 4. The criteria for a TDIU, on a schedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For increased rating claims, 38 U.S.C.A. § 5103 (a) requires, at a minimum, the Secretary to: (1) inform the claimant that in order to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; and, (3) further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life"). Once service connection is granted, Courts have held that the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See 38 U.S.C.A. § 5103(a); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nonetheless, the Board notes that in an October 2007 letter, the Veteran was informed of what evidence was required to substantiate his claims, and of his and VA's respective responsibilities in obtaining evidence. Additionally, this letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Veteran was afforded ample notice of the applicable law and requirements for substantiating his claims in the July 2008 Statement of the Case (SOC), as well in additional SSOCs. He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate. Thus, the Board finds that VA's duty to notify is satisfied. Regarding the duty to assist, the Board notes that the claims file contains the Veteran's service treatment records (STRs), pertinent post-service medical records, buddy/lay statements submitted in support of his claim, as well as his own written contentions. Neither the Veteran nor the Veteran's representative has identified, and the record does not otherwise indicate, any other evidence relevant to his claim that has not been obtained. Furthermore, the Veteran was afforded VA compensation examinations in December 2007, March 2012, October 2015, and May 2017 to address the nature and severity of his service-connected right hip disability. Upon review of the medical evidence, the Board concludes that these examination reports, collectively, are adequate for the purpose of rendering a decision in this case. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Legal Criteria When evaluating the severity of a particular disability, it is essential that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of a disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. If the evidence for and against a claim is in equipoise, then the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4. These percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Here, the AOJ assigned the Veteran's service-connected right hip strain an initial 10 percent rating under Diagnostic Code 5299-5255. In its initial rating decision, the RO found no compensable limitation of motion under any applicable DC, including DC 5253, so it applied a 10 percent evaluation, effective October 3, 2007, based on painful motion pursuant to DC 5003 (indicating that when limitation of motion is noncompensable, a 10 percent rating is applicable for each major group affected by limited motion). 38 C.F.R. § 4.71a, DC 5003, 5299-5255. Subsequently, the AOJ assigned a separate 10 percent evaluation, effective May 4, 2011, based on limitation of adduction of the thigh, under DC 5253. As a result, the Veteran is currently in receipt of a combined 20 percent evaluation for his right hip strain. In order to establish an entitlement to an increased initial evaluation under DC 5299-5255 or DC 5253, the evidence must show more severe loss of thigh flexion or extension, compensable loss of hip/thigh abduction or adduction, or a disability manifested by an impairment of the femur. See 38 C.F.R. § 4.71a, DCs 5251, 5252 and 5253 (governing limitation of thigh extension, flexion, adduction and abduction); DC 5255 (governing impairments of the femur) see also 38 C.F.R. § 4.7, Plate II (normal ranges of motion of the hip include extension/flexion from 0 degrees to 125 degrees and hip abduction from 0 degrees to 45 degrees). When rating disabilities of the hip, under Diagnostic Codes 5251-5253, a 10 percent evaluation is assignable where thigh extension is limited to 5 degrees (DC 5251), flexion is limited to 45 degrees (DC 5252), there is limitation of adduction, cannot cross legs, or there is limitation of rotation of affected leg, cannot toe-out more than 15 degrees (DC 5253). A 20 percent evaluation is assignable where thigh flexion is limited to 30 degrees (DC 5252) or where there is limitation of abduction with motion lost beyond 10 degrees (DC 5253). A 30 percent evaluation is assignable where flexion is limited to 20 degrees and a 40 percent rating is assignable where flexion is limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. Under Diagnostic Code 5255, a 10 percent evaluation is assigned for malunion of the femur with slight knee or hip disability. A 20 percent evaluation requires moderate knee or hip disability. A 30 percent disability rating requires marked knee or hip disability. A 60 percent evaluation requires either a fracture of the surgical neck of the femur with false joint or a fracture of the shaft or anatomical neck of the femur with nonunion, but without loose motion, and with weightbearing preserved with the aid of a brace. An 80 percent evaluation requires a 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. Assigning multiple ratings based on the same symptoms or manifestations of a disability constitutes prohibited pyramiding. 38 C.F.R. § 4.14. However, the Board finds that assigning separate ratings based on limitation of extension, flexion, adduction and rotation of the hip under DC 5251, 5252 and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14. Separate ratings under different diagnostic codes may be assigned where "none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other ... conditions." 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Here, the key consideration has been met, in that limitation of extension, flexion, adduction, and rotation concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip. See 38 C.F.R. § 4.45. If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected hip disability. See 38 C.F.R. § 4.40; see also VAOPGCPREC 9-2004 (separate ratings may be assigned for disability of the same joint where veteran has both limitation of flexion and limitation of extension of same leg). III. Increased Evaluation for Right Hip Strain The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. The Veteran was afforded a VA examination in December 2007. The Veteran reported flare-ups of hip symptoms, but, aside from the pain, he described no resulting functional impairment due to the flare-ups. According to the examiner, the Veteran had flexion beyond 45 degrees (documented at 0 to 85 degrees, with painful motion beginning at 85 degrees), extension beyond 5 degrees (documented as 0 to 20 degrees, with painful motion beginning at 20 degrees), abduction beyond 10 degrees (documented as 0 to 25 degrees, with painful motion beginning at 15-25 degrees), all including on repetitive use. The examination report does not indicate whether the Veteran was able to toe-out more than 15 degrees and/or cross his legs. Additionally, there was no evidence of any hip ankylosis found on examination. In a letter dated February 18, 2011, the Veteran's primary care physician, Dr. R.B., D.O., indicated that recent physical examination of the Veteran showed flexion limited to 40 degrees, extension beyond 5 degrees (noted as limited to 30 degrees), as well as an inability to cross his right leg onto his left leg. Dr. R.B. indicated that the Veteran's decreased mobility and increased pain in his right hip has limited his ability to work and further noted that the Veteran has not worked for a year. The Veteran was afforded a VA examination in March 2012. The Veteran did not report any flare-ups of hip symptoms, but he did report functional impairment of his right hip joint based on a limitation in standing more than 20 minutes and walking more than two blocks. According to the examiner, the Veteran had flexion beyond 45 degrees (documented at 0 to 70 degrees, with painful motion beginning at 60 degrees), extension beyond 5 degrees (documented with painful motion beginning beyond 5 degrees), abduction beyond 10 degrees, and he was able to toe-out more than 15 degrees and cross his legs, all including on repetitive use. The examiner indicated that the Veteran did not have a malunion or nonunion of the femur, flair hip joint, or leg length discrepancy. Additionally, the VA examiner indicated that there was no evidence of any hip ankylosis found on examination. The Veteran was afforded a VA examination in October 2015. The Veteran did not report any flare-ups of hip symptoms, but he did report functional impairment of his right hip joint based on a limitation in running, exercising or engaging in sexual intercourse. According to the examiner, the Veteran had flexion beyond 45 degrees (documented at 0 to 80 degrees with no pain noted on examination), extension beyond 5 degrees (documented 0 to 20 degrees with no pain), abduction beyond 10 degrees (documented as 0 to 15 degrees with no pain), and he was able to toe-out more than 15 degrees, all including on repetitive use. However, the examiner noted that the Veteran's adduction was limited such that he was unable to cross his legs. The Veteran was afforded a VA examination in May 2017. The Veteran did not report any flare-ups of hip symptoms, but he did report functional impairment of his right hip joint based on a limitation in standing more than 20 minutes, walking more than two blocks, and sitting or driving more than 30 minutes. According to the examiner, the Veteran had flexion beyond 45 degrees (documented at 0 to 90 degrees, with painful motion beginning at 60-70 degrees), extension beyond 5 degrees (documented as 0 to 20 degrees with pain), abduction beyond 10 degrees (documented as 0 to 20 degrees with pain), and he was able to toe-out more than 15 degrees and cross his legs. Pain was noted on active and passive motion with both weight-bearing and nonweight-bearing. An addendum opinion was obtained in August 2017, where the May 2017 examiner addressed the prior examinations of record. The VA examiner noted that, due to weight-bearing not being reported until recently, they were unable to speculate on examinations conducted by previous examiners. However, the examiner stated that there was pain with and without weight-bearing in both hips with passive and active motion on the examination conducted in May 2017. The Board finds that the December 2007, March 2012, October 2015, and May 2017 VA examinations were thorough and adequate and provided a sound basis upon which to base a decision with regard to the Veteran's claim for increase. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiners considered the relevant history of the Veteran's right hip strain, including the lay evidence of record, performed a physical examination, and provided a rationale to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Similarly, the Board also finds that Dr. R.B.'s February 2011 statement to be highly probative, because Dr. R.B. considered the relevant medical history of the Veteran's right hip disability, performed an examination, and provided a rationale to support his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). As discussed above, the Veteran's service-connected right hip strain is currently assigned an initial 10 percent evaluation, effective October 3, 2007, based on painful motion under DC 5299-5255, as well as a separate 10 percent evaluation for limitation of adduction of the thigh, effective May 4, 2011, under DC 5253. In this case, the Board finds that at no point during the period on appeal is the Veteran warranted a separate evaluation under DC 5250, 5254, or 5255 for his right hip disability, because the medical evidence of record does not show any hip ankylosis, right hip flair joint, or an impairment of the femur. The Board notes that while the Veteran is currently rated by analogy under 5299-5255, the medical evidence does not provide any evidence of an impairment of the femur to grant a higher disability rating under this diagnostic code. Next, the Board finds that at no point during the period on appeal is the Veteran warranted a separate evaluation under DC 5251, because the medical evidence of record consistently shows that the Veteran had extension beyond 5 degrees. Additionally, for the rating period from February 18, 2011 to March 14, 2012, the Board finds that the Veteran is entitled to a separate 10 percent evaluation under DC 5252 for limitation of flexion. Dr. R.B.'s February 2011 statement indicated that the Veteran's right hip flexion was limited to 40 degrees. However, despite this symptomatology, the remaining medical evidence of record, including VA and private treatment records, show that the Veteran's had flexion beyond 45 degrees. As a result, for the rating period prior to February 18, 2011, and since March 14, 2012, the Board finds that a noncompensable evaluation is warranted. Moreover, the Board finds that the Veteran's is entitled to a separate 10 percent evaluation under DC 5253 based on limitation of adduction, effective February 18, 2011. The medical evidence of record documents the first mention of a limitation of adduction, manifested by an inability to cross legs, as Dr. R.B.'s February 2011 letter. Despite March 2012 and May 2017 VA examinations indicating that the Veteran was actually able to cross his legs, the Board has resolved all reasonable doubt in favor of the Veteran and finds that a separate 10 percent evaluation is warranted under DC 5253 as of February 18, 2011, but not earlier. Finally, the Veteran's representative has also argued that a primary care physician was not an appropriate clinician to render the requested May 2017 VA medical opinion. In that regard, the Board notes that the May 2017 remand instructions only specified that an appropriate medical professional should provide an opinion. The United States Court of Appeals for the Federal Circuit has held that any challenge to the expertise of a VA expert must set forth the specific reasons why the litigant concludes that the expert is not qualified to give an opinion. Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010). VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor or other medical specialist. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Additionally, the Board may assume a VA medical examiner is competent. Cox, supra; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (stating that VA has no obligation to present affirmative evidence of a VA physician's qualifications during Board proceedings, absent a challenge by the Veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (finding that an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). Here, no probative evidence suggests that the VA examiner was not competent to provide the requested opinion despite the examiner's noted specialty as being "primary care physician" as opposed to an "orthopedist," as claimed by the representative. In fact, the Board notes that the Veteran's own private physician, Dr. R.M., D.O., who has provided comment on his orthopedic condition, is also a primary care physician and has been found competent to address the Veteran's right hip disability. Accordingly, as the May 2017 opinion is thorough, supported by an adequate rationale, based on a review of the claims folder, and largely supported by the evidence of record, there is no reason to find the opinion inadequate. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion regarding the issue decided herein has been met. Lastly, when assessing the severity of a musculoskeletal disability that 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. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see 38 C.F.R. §§ 4.40, 4.45. However, as noted above, the Veteran is already in receipt of the minimum compensable 10 percent disability rating pursuant to the provisions of 38 C.F.R. § 4.59. IV. Extraschedular Consideration While the Board is precluded by regulation from assigning an extraschedular rating in the first instance, the Board is not precluded from considering whether the case should be referred to the Director, Compensation and Pension Service. 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional or unusual disability picture where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. When these two elements are met, the appeal must be referred to the Director for consideration of the assignment of an extraschedular rating. On the other hand, if the rating criteria reasonably describe the Veteran's level of disability and symptomatology, then the disability picture is contemplated by the Rating Schedule. In such instances, the assigned schedular evaluation is adequate and referral is not required. Thun v. Peake, 22 Vet. App. 111, 116 (2008). Here, the Board finds that the schedular rating is adequate. The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected right hip disability. See Thun, 22 Vet. App. at 115. When comparing the Veteran's disability symptoms with the schedular criteria, the Board finds that his symptoms are congruent with the disability picture represented by the ratings assigned and he does not have symptoms associated with the disability that have been unaccounted for by the schedular ratings assigned herein. 38 C.F.R. § 4.124a. Accordingly, a comparison of the Veteran's symptoms and functional impairment resulting from his service-connected disabilities with the pertinent schedular criteria does not show that his residuals of a fracture of the right great toe present "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321 (b). Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). As such, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. The Board notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In this case, neither the Veteran nor his representative have alleged that the Veteran's service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration is warranted under Johnson. As to any express or implied contention that because the rating criteria are silent as to effects of occupational and daily activities that the rating schedule does not contemplate the total disability picture, this is insufficient to conclude that the rating criteria are inadequate because this is precisely what the rating criteria are designed to do and the Veteran has not demonstrated that the rating schedule is inadequate in any way. See 38 C.F.R. §§ 3.321 (a), 4.1. Finally, the Board notes that the disability's effect, if any, on the Veteran's employment is being considered below in the Board's remand of the Veteran's claim of entitlement to a TDIU. The statements or findings of impaired function, such as pain and particularly restrictions as to locomotion, pertain to functional limitations that are contemplated by the governing Diagnostic Code criteria and corresponding regulations. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Additionally, 38 C.F.R. §§ 4.40 and 4.45 provide that musculoskeletal system ratings contemplate functional loss and the factors of disability affecting the joints. The evaluations are all encompassing in that they have specific requirements such as motion, yet are broad in that they provide for a level of impairment based on functional loss. The inability to accomplish certain tasks, such as walking or running are not "symptoms" set forth in any portion of the Rating Schedule, yet they are a result of the same symptoms of pain, painful and limited motion, and decreased strength. Therefore, it is a result contemplated by the rating criteria as it is based on the same symptomatology. In reaching this determination, the Board considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against referral of the claim for extraschedular consideration. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). V. Schedular TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In making this determination, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to his level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). If the schedular rating is less than total, meaning less than 100 percent, a TDIU may be assigned if the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology and those affecting a single body system or both upper or lower extremities are considered one disability for purposes of determining whether these threshold minimum percentage requirements are met. Id. But even if the Veteran does not meet these threshold minimum percentage rating requirements, he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16(b), if it is shown he is indeed unemployable owing to his service-connected disabilities. In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). The Veteran is in receipt of service connection for tinnitus with an assigned 10 percent evaluation, right hip strain with separate 10 percent evaluations, and persistent depressive disorder with pure dysthymic syndrome, secondary to his right hip strain, with an assigned 50 percent evaluation. His combined disability rating, as of June 11, 2015, is 60 percent. As a result, he has not met the schedular criteria for a TDIU at any point during the period on appeal, because he does not have a single disability rated at 60 percent or more and, the combined rating of his service-connected disabilities is not 70 percent or more. Accordingly, as a matter of law, the Veteran does not meet the schedular criteria for a TDIU and the claim must be denied. See 38 C.F.R. § 4.16(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Notwithstanding this determination, the Board will address the issue of entitlement to a TDIU on an extraschedular basis in the Remand portion of this decision below. ORDER 1. Entitlement to an initial evaluation higher than 10 percent for right hip strain under DC 5299-5255 is denied. 2. Entitlement to a separate 10 percent evaluation, effective February 18, 2011, but no earlier, for right hip strain under DC 5253 is granted. 3. Entitlement to a 10 percent evaluation, from February 18, 2011, but not earlier, to March 14, 2012, but not later, for right hip strain under DC 5252 is granted. 4. Entitlement to a schedular TDIU is denied. REMAND The evidence of record reflects that the Veteran's right hip strain at some point during the period on appeal may have interfered with his employment. Specifically, the October 2015 VA examiner indicated that the Veteran last worked in 2005 as a restaurant manager. See Dr. R.B.'s February 2011 letter (indicating that the Veteran has not worked for a year); see also March 2012 VA examination (indicating that the Veteran's right hip strain affects his ability to work). While the evidence suggests interference with employment due to his service-connected right hip strain, at no point during the period on appeal has he met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), which means that a TDIU, if applicable, would need to be awarded on an extraschedular basis. However, as noted above, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular criteria under 38 C.F.R. § 4.16 (a), to the Director for extraschedular consideration. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). Thus, as the Veteran has not met the schedular criteria for a TDIU, the Board finds that a remand is warranted to refer the TDIU claim to the Director for extraschedular consideration in the first instance. Accordingly, this claim is REMANDED for the following action: 1. Request that the Veteran complete and return VA Form 21-8940 (an official TDIU application), providing his employment history with salary information and average hours worked, etc., from October 1, 2007 to the present. 2. After completing the above and any other development deemed necessary by the AOJ, submit the claim to the Director of the Compensation Service for consideration of a TDIU on an extra-schedular basis. If this claim remains denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs