Citation Nr: 1802878 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 08-31 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a rating in excess of 90 percent for degenerative joint disease of the right hip, status post femoral head fracture, from May 20, 2015. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the service-connected disabilities. REPRESENTATION Appellant represented by: Jean Mark, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Hoover, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1976 to August 1978. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The issue of TDIU arises from a May 2007 rating decision. A Notice of Disagreement (NOD) was received in December 2007. A Statement of the Case (SOC) was issued in August 2008. A Substantive Appeal (VA Form 9) was received in October 2008. The Veteran testified at a hearing before a decision review officer at the RO in December 2008. A copy of the transcript is associated with the claims file. In June 2010, February 2013, December 2013, February 2015, December 2015 and March 2017 the case was remanded for additional development and now returns for further appellate review. The issue of a rating in excess of 90 percent from May 20, 2015, for the service-connected degenerative joint disease of the right hip, status post femoral head, arises from a June 2016 rating decision. A NOD was received in May 2017. A SOC was issued in June 2017. A Substantive Appeal (VA Form 9) was received in August 2017. In this regard, the Board must emphasize that the issue concerning a disability rating in excess of 30 percent prior to May 20, 2015 (specifically from June 2, 2006, through May 19, 2015), for the Veteran's degenerative joint of the right hip status post femoral head fracture (right hip disability) was the subject of a final decision by the Board in March 2017. In that decision, the Board determined that the evidence on file at that time did not support a disability rating greater than 30-percent for the service-connected right hip disability. The Veteran did not appeal this Board decision to the Court, and the record does not otherwise reflect that the Chairman of the Board has ordered reconsideration of this same Board decision. 38 U.S.C. § 7266 (2012) (A person adversely affected by a final decision of the Board has 120 days to file Notice of Appeal to the Court); 38 C.F.R. § 20.1100(a) (2017) (All Board decisions are final on date stamped on the face of that decision, unless the Chairman of the Board orders reconsideration); see also 38 U.S.C. §§ 511(a), 7103(a), 7104(a), 7252, 7261, 7266 (2012); 38 C.F.R. §§ 3.160(d)(2), 20.1100 (2017). As such, the Board's final decision in March 2017 is determinative, as a matter of law, that the evidence then before it did not show entitlement to a disability rating in excess of 30-percent (including the currently assigned 90-percent) at any time prior to May 20, 2015. Thus, the Veteran is collaterally estopped from relitigating the same issue based upon the same facts, albeit for a different purpose. See Hazen v. Gober, 10 Vet. App. 511, 520 (1997). Therefore, to the extent the Veteran attempts to raise the matter of an effective date prior to May 20, 2015, for an award of the 90-percent rating for his right hip disability (see May 2017 NOD), the Board is likewise collaterally estopped from viewing that same evidence, which speaks to the period prior to May 2015, any differently from the way it had been reviewed by the Board in the March 2017 decision. Id. Accordingly, the issues on appeal are as listed on the cover page. In a letter dated October 24, 2017, the Veteran's representative waived RO consideration of the private vocational assessment, curriculum vitae of the private vocational rehabilitation specialist, and the letter itself. In light of the waiver accompanying the additional evidence, the Board notes that it may consider such evidence in the first instance. See 38 C.F.R. § 20.1304 (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. From May 20, 2015, the Veteran's service-connected right hip disability is manifested by chronic flare ups of pain, limited range of motion, weakness, fatigability, incoordination, reduction in muscle strength, and functional leg length discrepancy, which more nearly approximate impairment analogous to painful motion or weakness such as to require the use of crutches; the record evidence shows that the Veteran has not had a total replacement of the head of the right femur or of the right acetabulum. 2. The record evidence is in relative as to whether the Veteran's service connected disabilities preclude him from securing or following a substantially gainful occupation at least for the period from May 20, 2015. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 90 percent for degenerative joint disease of the right hip status post femoral head fracture from May 20, 2015, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5054. 2. The criteria for a total disability rating based on individual unemployability due to the service-connected disabilities from May 20, 2015, are met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. VA'S DUTY TO NOTIFY AND ASSIST With respect to the Veteran's issues decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). III. LEGAL CRITERIA Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 exertion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. III. ANALYSIS Increased Rating from May 20, 2015 - Right Hip Disability In a June 2016 rating decision, the RO increased the rating for the service-connected right hip disability from 30 percent to 90 percent disabling, effective from May 20, 2015. As previously indicated, in a March 2017 Board decision, the Board denied, in relevant part, a rating in excess of 30 percent prior to May 20, 2015, for the service-connected right hip disability. As such, for purposes of this appeal, the Board's consideration will focus on the evidence that covers the period from May 20, 2015. The record evidence shows that a May 2015 VA examiner found that functional impairment of the right hip disability was such that no effective function remained which would be equally well served by an amputation with prosthesis, which was shown by "a profound compensatory and antalgic gait pattern and external rotation of the right hip which interfered with the right lower extremity to provide proper balance and propulsion." During the examination, the Veteran could not internally rotate his right hip. In addition, the examiner noted a bony block at 15 degrees external rotation with any attempt of passive or active internal rotation. The examiner found that the internal and external rotation disabilities significantly affected the Veteran's gait and hip flexion. Pain was noted for all range of motion. Additionally, loss of function and range of motion was found after repetitive use testing. The Veteran was also diagnosed with a functional leg length inequality based on the evaluation of gait, pelvic tilt, and measurement of leg length. The Veteran reported chronic daily flare ups with weight bearing activity requiring rest in a semi-recumbent position for comfort. Flare ups reportedly required one to two days to resolve. Pain was also reported to cause loss of motion. Pain, weakness, fatigability, or incoordination was found to significantly limit functional ability with repeated use over a period of time. The examiner found that the Veteran's right hip disability resulted in instability of station, disturbance of locomotion, interference with sitting, and interference with standing. A reduction in muscle strength was found entirely related to a right hip disability. Muscle testing on a scale to five, with five rated as normal revealed flexion rated at four, extension rated at four, and abduction rated at three. The examiner additionally found muscle atrophy due to the right hip disability located at the right lower extremity. Based on the examination results, the May 20, 2015 examiner opined that the Veteran's right hip disability was more closely analogous to DC 5054 for "so severe residuals of painful motion or weakness such that the Veteran was required to use crutches or an assistive devices." Following the May 2015 VA examination, the Veteran's right hip disability was rated 90 percent disabling pursuant to DC 5054. The Veteran underwent another VA examination on his hip in January 2016, during which the examiner reviewed diagnostic code 5054, and stated that for the purposes of Compensation & Pension, the Veteran's right hip condition is most analogous to the schedule for "so severe residuals of painful motion or weakness such that the Veteran is required to use crutches or other assistive devices," and not more closely approximated to a fracture of the surgical neck with false joint. The examiner stated in the rationale that as a consequence of the Veteran's service connected right hip condition, he suffers a chronically widened and antalgic, compensatory gait. The examiner further stated that the Veteran carries the right lower extremity with an outward swing and there is very little evidence of any effective propulsion with the right lower extremity. The examiner noted that the Veteran relies upon a cane for balance during ambulation and that the evidence of record supports that the Veteran demonstrates a non-measurable gluteal atrophy on gross examination. The examiner noted that there is chronic external rotation of the right hip which is more likely than not a combination of compensatory positioning as well as a consequence of malunion of the service-connected fracture of the right femoral head. The Veteran underwent another compensation examination in June 2017. The Veteran reported continued right hip pain exacerbated by motion and weight bearing. The physical examination showed range of motion of the right hip with flexion 0 to 90 degrees, extension 0 to 15 degrees, abduction 0 to 10 degrees, adduction 0 to 20 degrees, external rotation 15 to 30 degrees; and internal rotation 0 to 0 degrees. The examiner noted that the Veteran was unable to internally rotate the right hip, which significantly affected the Veteran's gait and also interferes with hip flexion. Pain was noted on examination and causes functional loss. Pain with weight bearing, tenderness, and crepitus were noted upon examination. Upon repetition, range of motion showed flexion 0 to 90 degrees, extension 0 to 15 degrees, abduction 0 to 10 degrees, adduction 0 to 0 degrees, external rotation 15 to 45 degrees, and internal rotation 0 to 0 degrees. The examiner provided estimates of range of motion upon repeated use over time as flexion 0 to 90 degrees, extension 0 to 30 degrees, abduction 0 to 10 degrees, adduction 0 to 0 degrees, external rotation 15 to 30 degrees, and internal rotation 0 to 0 degrees. The examiner also provided estimated loss of motion during a flare as flexion 0 to 90 degrees, extension 0 to 15 degrees, abduction 0 to 10 degrees, adduction 0 to 0 degrees, external rotation 15 to 30 degrees, and internal rotation 0 to 0 degrees. A reduction in muscle strength was noted, as well as atrophy at 10 centimeters proximal to the superior pole of the patella. The examiner stated there was no evidence of ankyloses, but that the Veteran had malunion or nonunion of the femur with marked hip disability. The examiner explained that the Veteran has functional leg length inequality caused by a compensatory gait pattern and external rotation of the right hip. He further stated that the right hip impairment is severe resulting in a compensatory and analgesic gait resulting in interference of the Veteran's propulsion, balance and strength of the right leg. The two most recent examinations of record from January 2016 and June 2017 show no worsening of the Veteran's hip condition since the May 2015 examination such to warrant a rating analogous to 100 percent under DC 5054. A 100 percent rating is assigned under Diagnostic Code 5054 only for the prescribed one-year period following implantation of the prosthesis. Therefore, a rating of 100 percent under Diagnostic Code 5054 was not warranted at any time during the appeal period for the Veteran's status post femoral head fracture residuals, as the Veteran has not had a total hip replacement (i.e, total replacement of the head of the femur or of the acetabulum). 38 C.F.R. § 4,71a, DC 5054, NOTE (In DC 5054, "prosthetic replacement" means a total replacement of the head of the femur or of the acetabulum). After reviewing the rating criteria, both the January 2016 and June 2017 VA examiners considered the Veteran's range of motion findings, functional leg length discrepancy, pain, chronic flare ups, weakness, fatigability and incoordination reduction in muscle strength, and leg length discrepancy and atrophy when stating the Veteran's clinical picture most closely meets the definition of the 90 percent disabling category of 5054. Therefore, the Veteran is not entitled to a higher rating under 5054, and no higher ratings under other applicable codes are available. The Board finds that the currently assigned 90 percent under DC 5054 disability rating is the most favorable to the Veteran. The Board has considered whether the Veteran is entitled to a separate rating for muscle atrophy. However, the Board finds that assigning a separate evaluation based on muscle atrophy would constitute pyramiding, as the atrophy results in the same functional impairment encompassed in the Veteran's right hip disability rating. The Veteran was granted a 90 percent disability rating in order to most appropriately encompass the symptoms noted by the May 2015 VA examiner, who's opinion was based on a culmination of multiple symptoms of the right hip disability, including range of motion findings, functional leg length discrepancy, pain, chronic flare ups, weakness, fatigability and incoordination reduction in muscle strength, and leg length discrepancy which so severely limit the Veteran that he would be better served by a total hip replacement. The January 2016 VA examiner expressly mentioned the Veteran's atrophy in the rationale for his opinion that the Veteran's right hip condition is most analogous to the schedule for "so severe residuals of painful motion or weakness such that the Veteran is required to use crutches or other assistive devices." The RO expressly considered atrophy when evaluating the rating for the Veteran, as stated in the June 2017 Statement of the Case, when it rated the Veteran's hip disorder analogous to residuals of a post-prosthetic replacement with painful motion or weakness such as to require the use of crutches with additional symptoms of severe painful motion and severe weakness. The Board finds that the atrophy noted by the January 2016 and June 2017 VA examiners is encompassed in the functional limitations described in the above rating. As such, an additional rating is not warranted for the Veteran's muscle atrophy. Upon review of the record, including the Veteran's contentions, the Board finds it reasonable to conclude the Veteran has not shown an increase in symptom severity to warrant a rating in excess of 90 percent from May 20, 2015. TDIU Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be used as a basis for a TDIU rating. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is currently service-connected for the following disabilities: degenerative joint disease of the right hip status post femoral head fracture rated at 90 percent, scars of the forehead, eyebrow and temple rated at 30 percent, right hip degenerative joint disease at 10 percent, and painful scar of the right hip, rated at 10 percent. These disabilities combine to a 90 percent rating. Therefore, the Veteran has at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more, and he thus meets the schedular requirements for a TDIU. 38 C.F.R. § 4.16(a). Thus, the remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16 (a). The Veteran contends that his service-connected disabilities render him unable to maintain gainful employment. Specifically, he asserts that his service connected hip disorder in combination with his non service connected back disorder caused him to retire due to hip and back pain, allegedly rendering him unable to maintain a substantially gainful occupation. See Statement in Support of Claim, dated September 6, 2006. Turning to the evidence of record, in an August 2005 letter, a physician noted that the Veteran's right hip disability was "not really too bad at this time." The right hip was found manifested by flexion to 90 degrees. Pain was noted more in the left hip rather than the right hip. In addition, internal and external rotation produced bilateral pain, more with the left hip than the right. The Veteran's gait was noted as "all right". The Veteran was not found to walk with a limp and did not use an assistive device for ambulation. In the September 2006 VA examination, the Veteran reported 3/10 pain (worse with flare ups), weakness, stiffness, heat, instability, and locking. He reported that his hip disability flared up at least once per week for two to three days. The Veteran reported that flares limited his activity and that improvement was shown with rest and heat or cold packs, and that he occasionally used canes at home but did not use other assistive devices. He reported that as a result of his hip pain along with his low back pain, he had to leave his work because he had missed approximately fifteen weeks of work secondary to his hip and back pain prior to him leaving work in 2003. He estimates that five weeks of this was secondary to his hip condition and ten weeks was secondary to his back condition. The Veteran reported that his hip causes him to decrease his activities including the fact that he can't do yard work secondary to hip pain, and that it also makes getting dressed harder and walking difficult. The Veteran estimated that he could walk approximately one mile if he was forced to walk as far as possible. On examination, the Veteran was noted to ambulate without a limp but with a stiff gait. He could flex his hip to 95 degrees with minimal pain at the extreme of this range of motion. He could extend his hip to 20 degrees, adduct to 20 degrees, abduct to 25 degrees, externally rotate to 40 degrees, and internally rotate to 0 degrees. The Veteran did not have significant pain with these motions. There was no additional disability after repetitive use. The examiner wrote that he could not address range of motion during flare ups without resorting to speculation because a flare up was not occurring at that time. X-rays of the hip showed degenerative changes with loss of joint space and osteophyte formation. There was deformity of the femoral head consistent with previous fracture. The examiner diagnosed moderate degenerative changes of the right hip status post femoral head fracture. A March 2007 VA medical record noted a generally normal but slightly antalgic gait. The Veteran used a cane for ambulation. In April 2008, the Veteran reported right hip pain that had not improved, which caused difficulty sleeping at times. A May 2008 VA orthopedic consultation diagnosed the Veteran with stable moderate to severe degenerative osteoarthritis of the right hip. The Veteran reported flare ups that had occurred intermittently with certain activities and which affected his posterior, but that had recently affected his anterior right hip since the previous February. The Veteran further noted increased pain with walking that was relieved by lifting his leg in certain positions. The physician found that the Veteran's right hip manifested by the following range of motion findings: flexion to 90 degrees without significant pain, abduction to 20 degrees which was likely limited secondary to osteoarthritis impingement, internal rotation to 0 degrees with knee at 90 degrees, and external rotation to 30 degrees. Radiological examination revealed a very large collar of osteophytes arising from the femoral head that impinged upon the joint space, particularly inferiorly, and narrowing of the cartilage space superiorly with subchondral sclerosis and marginal osteophytosis arising from the acetabular rim. The Veteran stated that he was not interested in right total hip arthroplasty and that he felt he could manage with activity modification. In a written statement that was received by the RO in June 2008, the Veteran stated that his hip pain was increasing. He claimed that he was told that a hip replacement or resurfacing would help relieve his increasing arthritis, but that he declined to undergo either of these procedures. A September 2008 VA medical record evaluating the Veteran's back and right hip pain noted the Veteran was up and walking around but that he was unable to sit in a chair for an extended period of time due to pain. He was noted to use a cane for ambulation and support while standing. Moderate pain was noted over the right buttock and lateral right hip area. No muscle spasm was found and the Veteran's muscle tone was noted as good in both legs. In addition, the examiner noted good range of motion in both legs. At his hearing in December 2008 the Veteran reiterated that his activities were limited by pain in his right hip and his back, and that pain medication helped relieve the Veteran's hip pain. He attended physical therapy for his hip and back. He testified that he used a cane and walker and that the combination of his hip pain and his back pain caused him to be unable to work. A January 2009 medical record showed that the Veteran reported being unable to walk sometimes due to his right hip disability. The physician noted that the Veteran had a hard time bending and putting on his socks and shoes. Strength was found normal in the lower extremities except for a profound left foot drop. Muscle atrophy was found in the right calf versus the left calf. The Veteran was noted to walk with a "hip type gait." The Veteran was further noted to have difficulty with tandem walking. In March 2009, a VA medical record shows that the Veteran was assessed to need right total hip arthroplasty which he declined. In the April 2009 VA examination, the Veteran reported constant pain in his posterior right hip, and that the pain flared in intensity several times per month. He sometimes used a cane to walk as a result of his hip and back problems. He reported that his hip was presently amidst a flare. On examination the Veteran was able to flex his hip to 95 degrees, with limitation of motion caused by pain. He could extend his hip to 25 degrees, adduct to 20 degrees, abduct to 25 degrees, externally rotate to 40 degrees, and internally rotate to 5 degrees. There was no additional impairment after three repetitive motions. Significantly, the examiner noted that the Veteran felt he was having a flare up at the time of the examination. The x-ray impression was stable moderate to severe degenerative arthritis of the right hip and the diagnosis was right his repaired fracture with residual degenerative joint disease. On the May 2013 VA examination, right hip flexion was to 100 degrees, with objective evidence of painful motion at greater than 5 degrees. The same figures were given after repetitive motion testing. Additional range of motion testing showed extension was to 30 degrees, adduction to 20 degrees, abduction to 45 degrees, external rotation to 25 degrees, and internal rotation to 3 degrees. There was no change with 3 repetitions. There was no additional limitation of motion of the hip and thigh following repetitive use testing, but there was functional loss or impairment in the form of more loss of movement than normal, pain on movement, instability on station, disturbance of locomotion, and interfering with sitting, standing, and/or weight bearing. The examiner noted that, in the absence of a flare up at the time of the examination, he could not say whether function would be significantly limited by pain or the other DeLuca factors during flare ups. There was localized tenderness or pain to palpitation for the right hip joints/soft tissue. Muscle strength was a normal 5/5 and there was no ankylosis, malunion, nonunion, flail hip joint, or left leg discrepancy. The Veteran used a cane constantly and a walker regularly. The examiner found that the Veteran had a visibly altered and antalgic gait which prevented any kind of lifting or sustained standing or walking. The examiner stated that regarding the Veteran's restriction on daily activities, the Veteran's hips limit his ability to take recreational walks, but that he is able to do all his activities of daily living. A June 21, 2013 VA physical therapy medical record documented a diagnosis of right hip osteoarthritis and noted that the Veteran was awaiting total hip replacement arthroplasty. The Veteran was noted to ambulate with severe gait compensation and used a single point cane for ambulation. A September 2013 VA physical therapy medical record also showed a diagnosis of right hip osteoarthritis and that the Veteran made good progress in range of motion and strength. The Veteran was further noted to ambulate with severe gait compensation and used a single point cane. A May 2015 VA examiner stated that the Veteran's right hip condition would adversely affect his ability to perform occupations requiring repetitive weightbearing activity and interfere with occupational activities requiring prolonged sitting or repetitive transferring between seated and standing positions, but that there is no restriction from sedentary occupational activity with reasonable accommodation. The Veteran completed a May 2016 VA examination related to his TDIU claim. The examiner noted that the Veteran completed high school, has a bachelor's degree in accounting, worked as a cost accountant for Dean Foods in Chemung, IL for approximately 20 years, and that the Veteran then he became the president of a local teamsters union where he was responsible for negotiating contracts, enforcing contracts, and acting as a business agent for 10 years before retiring in November 2003. The examiner noted that the Veteran stated that he retired for medical reasons, as he experienced back pain and hip pain upon sitting too long. The examiner stated that the Veteran's service connected scars have no impact on employability. The examiner stated that the Veteran's right hip disability interferes with propulsion, balance, and strength, and that the amputation with prosthesis would equally service him. Despite acknowledging that the Veteran has a significant gait disturbance, intolerance with repetitive transfers, difficulty with walking, sitting or standing for long periods of time, the examiner noted that the Veteran has the potential for securing and sustaining multiple types of sedentary employment with appropriate accommodations including standing and stretching every 20 to 30 minutes while sitting. The May 2017 VA examiner stated that the Veteran has significant gait disturbance, difficulty with propulsion and balance from his right hip disability that affects his ability to walk long distances, interferes with repetitive transfers, sit or stand for long periods of time. However, the examiner stated that given his prior history and examination, he is able to do sedentary occupational activities with appropriate accommodations including standing and stretching every 20 to 30 minutes while sitting. The examiner further opined that based on the Veterans educational and work history he has the potential of acquiring multiple types of sedentary employment. The Veteran then submitted a private TDIU assessment completed by a vocational expert dated October 2017. A curriculum vita was attached. The vocational expert opined that it is more likely than not that the Veteran is precluded from securing or following a substantially gainful occupation due to the effects of his service connected disabilities, and that this has been the situation since the Veteran last worked in 2003. The vocational expert reiterated that the Veteran missed an estimated 5 weeks of work due to his hip pain in 2003. The vocational expert further stated that if the Veteran is unable to engage in prolonged sitting and prolonged standing, that he is therefore unable to perform any work in the economy, and that he would need to lie down or recline during this time. The vocational expert stated missing five weeks of work activity in a year is more absences than can be tolerated even in the skilled sedentary work that the Veteran previously performed. The Veteran has not alleged that his scars affect his employment in any way, and the medical evidence of record has expressly stated that the Veteran's scars do not affect employment. See May 2016 VA Examination. Therefore, the analysis below will focus upon the impact that the Veteran's service connected hip disorder has on his ability to secure employment. In the present case, the evidence is in relative equipoise on the question of whether the Veteran would be unable to secure or maintain substantially gainful employment due to his service-connected disabilities. In this regard, the Board first observes that the Veteran's 90 percent disability rating for his service connected hip disorder, in and of itself, demonstrates limited residual ability to obtain and maintain substantially gainful employment. As discussed above, the June 2017 VA examiner found that the Veteran's right hip disability resulted in instability of station, disturbance of locomotion, interference with sitting, and interference with standing, as well as chronic daily flare ups that caused the Veteran to have to move to a semi-recumbent position. Additionally, the Vocational Rehabilitation expert commented that if the Veteran was unable to perform both prolonged sitting and standing, the Veteran would theoretically have to work in a reclined position, and that his prolonged absences due to flare ups make him unemployable. The Board also finds that the Vocational Rehabilitation expert's comments to be of probative value, stating that if the Veteran has difficulty with prolonged sitting, standing, transferring, and even crossing his legs, that it is improbable that a standing and stretching or sitting and stretching accommodation would afford the Veteran an opportunity to perform sedentary employment. On the other hand, the May 2015 VA examiner stated that there is no restriction from sedentary occupational activity with reasonable accommodation. The May 2016 VA examiner stated that the Veteran's service connected disabilities did not prevent the Veteran from obtaining gainful employment prior to June 18, 2015, and the June 2017 VA examiner stated that the Veteran is able to do sedentary occupational activities with appropriate accommodations including standing and stretching every 20 to 30 minutes while sitting. The Board finds the VA examiners' opinions to likewise be of probative value due to their thorough review of the record and medical expertise. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After considering the evidence for and against the claim, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's service-connected disabilities have rendered him unemployable. As such, a reasonable doubt arises as to his employability, which must be resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Therefore, the Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In making this determination, the Board has considered the contention advanced by the Veteran's representative that an award of TDIU rating is warranted from 2003, as the Veteran stopped working in 2003. The Veteran's representative relies on the report of the Vocational Rehabilitation expert, as it suggests unemployability at that time due to the Veteran's right hip disability. However, when viewing the complete record, including the Veteran's lay statements, as to the timeline of the Veteran's service-connected disorders on his ability to work, it is not apparent in the record that the Veteran's service connected disabilities themselves precluded him from securing or following gainful employment prior to May 20, 2015. The May 20, 2015, VA examination report was the first document of record showing clear, objective evidence of ascertainable increase in severity to show that the Veteran's service connected injuries in and of themselves could prevent the Veteran from securing or following gainful employment. In an August 2005 letter, a physician noted that the Veteran's right hip disability was "not really too bad at this time and in the September 2006 VA examination, the Veteran reported a decrease in his activities secondary to hip pain, including yard work, and that it also makes getting dressed harder and walking difficult. The Veteran estimated that he could walk approximately one mile if he was forced to walk as far as possible. A January 2009 medical record stated that strength was found to be normal in the lower extremities except for a profound left foot drop, and the May 2013 VA examiner stated that regarding the Veteran's restriction on daily activities, the Veteran's hips limit his ability to take recreational walks, but that he was able to do all his activities of daily living. A review of the record evidence, including the Veteran's lay statements, indicates that the Veteran has an extensive educational background and work history. He completed college and reports having extensive training in accounting, contract negotiations and enforcement, and in related areas of business. With respect to his occupational history, the record shows that the Veteran retired in 2003 due to medical problems. However, the evidence on file at that time does not indicate that his retirement was due solely to a service-connected disability. The Veteran provided lay evidence in his June 2006 Statement in Support of Claim and December 2008 hearing stating that his back and hip disabilities prevented him from working. In the same way, a VA examiner in May 2016 noted the Veteran's statements that he retired in November 2003 due to his medical problems, including experiencing back and hip pain if he sat too long. The Veteran's back disorder is not service connected, and the Veteran did not allege at that time that his service connected disorders in and of themselves prevented him from securing or following a gainful occupation that comported with his professional training and experience. Based on the evidence in this case, the exact date of when the Veteran's service-connected disabilities alone rendered him unable to secure or follow a substantially gainful occupation cannot be determined with any certainty. Resolving all doubt in the Veteran's favor, the earliest date that it can be factually ascertained that the Veteran's service connected injuries in and of themselves reached a level of severity to render the Veteran incapable of performing the physical and mental acts required for gainful employment was not until the Veteran's May 20, 2015, VA examination. Accordingly, entitlement to TDIU due to the service connected disabilities is warranted as of May 20, 2015. 38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.3 (2017); ORDER Entitlement to a rating in excess of 90 percent disabling for degenerative joint disease of the right hip status post femoral head fracture from May 20, 2015, is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities as of May 20, 2015, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs