Citation Nr: 1804104 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 16-43 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating in excess of 50 percent for residuals of a left thigh injury with muscle loss, scarring, and degenerative joint disease of the left hip. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 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. The Veteran is currently in receipt of the maximum schedular 50 percent rating for severe injury to Muscle Group XVII and he does not have ankylosis of the left hip. 2. The Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for residuals of a left thigh injury with muscle loss, scarring, and degenerative joint disease of the left hip have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.56, 4.73, Diagnostic Code 5317 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.41, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, 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). Laws and Analysis for Left Hip/Thigh Disability Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation; in other words, his rating may need to be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus in making this determination is from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. Id. See also 38 U.S.C.A. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, this doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's service-connected re residuals of a left thigh injury with muscle loss, involving injury to Muscle Group XVII are rated under Diagnostic Code 5317 and have been assigned the maximum 50 percent schedular rating under this code. See 38 C.F.R. § 4.73, Diagnostic Code 5317. Because a 50 percent disability rating is the maximum schedular rating available under Diagnostic Code 5317, a higher rating is not assignable under this code. Furthermore, no other Code is more applicable. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (holding that the Board's choice of diagnostic code should be upheld if supported by explanation and evidence). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Board notes that Diagnostic Code 5250 for ankylosis of the hip and Diagnostic Code 5255 for impairment of the femur allow for disabilities ratings in excess of 50 percent. A review of the medical evidence, however, does not indicate that the Veteran has ankylosis of the left hip or any impairment of the femur. See March 2015 VA hip and thigh examination report. As such, a higher rating under these diagnostic codes is not warranted. The Board additionally has considered whether the Veteran may be entitled to Special Monthly Compensation (SMC) for his muscle injury. As noted above, under Diagnostic Code 5317, a "severe" injury warrants a 50 percent evaluation. Additionally, if the injury is bilateral, the Veteran may be entitled to special monthly compensation (SMC). In this case, although the Veteran has also been service-connected for right hip arthritis, there is no indication that it is productive of a severe muscle injury. As such, SMC is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU The Veteran contends that he is unemployable because of the severity of his service-connected disabilities and, therefore, entitled to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities - provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability 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). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of common etiology or from single accident or affecting both upper or lower extremities are considered to be one disability. Id. The Veteran has the following service-connected disabilities: residuals of a left thigh/hip injury, rated as 50 percent disabling; bilateral hearing loss, rated as 30 percent disabling; degenerative disc disease of the lumbar spine, rated as 20 percent disabling; left lower extremity radiculopathy, rated as 20 percent disabling; right hip degenerative joint disease, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; right lower extremity radiculopathy, rated as 10 percent disabling; and a skin disorder, rated as 10 percent disabling. As of June 29, 2011, the Veteran had a combined rating of 70 percent. As of September 30, 2014, the Veteran had a combined rating of 90 percent. Thus, the Veteran satisfied the threshold minimum percentage rating requirements for a TDIU according to § 4.16(a) as of June 29, 2011. In a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity, 38 C.F.R. § 4.10, but it is the rating official who is responsible for interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present, 38 C.F.R. § 4.2). The evidence of record reflects that the Veteran completed a high school education and had no other education and training before he was too disabled to work. He last worked full-time in 1995 as a marine engineer. He became too disabled to work owing to his service-connected disabilities - namely, his left thigh and hip disability. See September 2014 TDIU application on VA Form 21-8940. The evidence also includes the March 2015 VA hip and thigh examination where the examiner specifically indicated that the Veteran's left hip disability would impact his ability to work. In this regard, the examiner noted that the Veteran would have "a hard time" standing, walking, and lifting on days when experiencing severe pain. In a March 2015 VA spine examination, it was noted that the Veteran's service-connected lumbar spine disability would also affect his ability to work. Specifically, the examiner noted that the Veteran would have difficulty standing, sitting, lifting or walking for any length of time because of the lower back pain. The March 2015 VA examiner was also asked to provide an opinion regarding the Veteran's unemployability as it relates to his service-connected disabilities. The examiner indicated that the Veteran had degenerative joint and disc disease of the spine and bilateral hips to include decreases sensation of the left medial and anterior thigh area. According to the examiner, the Veteran "could not do any prolonged sitting, standing, walking, to include carrying of light or heavy objects." It was noted that the Veteran could not get comfortable during the examination and could not sit or stand for any length of time and had to continually change positions to make himself comfortable. Based the March 2015 VA examiner's probative opinion, in addition to the Veteran's work history and limited educational level, and resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is warranted for the entire rating period on appeal (i. e., beginning September 30, 2014). See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ORDER A rating in excess of 50 percent for residuals of a left thigh injury with muscle loss, scarring and degenerative joint disease of the left hip is denied. A TDIU is granted effective September 30, 2014, subject to the laws and regulations governing monetary benefits. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs