Citation Nr: 18142267 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 01-08 427 DATE: October 15, 2018 ORDER A rating in excess of 10 percent for a left hip disability from October 31, 2012, is denied. A total disability rating based on individual unemployability prior to November 27, 2012, is denied. FINDINGS OF FACT 1. Since October 31, 2012, the Veteran’s left hip disability has not been shown to result in any ankylosis, hip flail joint, impairment of the femur, limitation of abduction, limitation of adduction, limitation of rotation, functional limitation of extension to 5 degrees, or functional limitation of flexion to 30 degrees. 2. Prior to November 27, 2012, the Veteran’s service-connected disabilities were not shown to have precluded him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Beginning October 31, 2012, the criteria for a rating in excess of 10 percent for a left hip disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5250-55. 2. Prior to November 27, 2012, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Navy from October 1960 to October 1964. In connection with this appeal, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) in April 2004. A transcript of the hearing is of record. A June 2017 letter informed the Veteran that the VLJ who conducted the April 2004 hearing was no longer at the Board and asked him if he wished to attend another hearing before a VLJ who would render a determination in his case. He was further informed that if no response was received that it would be assumed that he did not want another hearing and that a decision on his claim would be made. No response has been received from the Veteran. Increased Ratings In November 2000, the Veteran filed his increased rating claim for his left hip disability, which was denied by a March 2001 rating decision. In August 2009, the Board denied the claim, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In February 2010, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Remand (JMR). In March 2016, the Board denied entitlement to a compensable rating prior to July 5, 2007, granted a 10 percent rating from July 5, 2007, to October 30, 2012, and remanded a claim of entitlement to a rating in excess of 10 percent beginning October 31, 2012, for further development. In March 2016, the Board again remanded the claim for further development which has since been completed. As such, the issues of entitlement to a rating in excess of 10 percent beginning October 31, 2012, is ready for adjudication. With respect to disabilities of the hip, 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255 set forth relevant provisions. Diagnostic Code 5250 evaluates ankylosis of the hip. The medical record does not document left hip ankylosis. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5251 evaluates limitation of extension. A 10 percent rating is assigned for extension limited to 5 degrees. Diagnostic Code 5252 evaluates limitation of flexion. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 20 degrees. A 40 percent rating is assigned for flexion limited to 10 degrees. Diagnostic Code 5253 evaluates an impairment of the thigh. A 10 percent rating is assigned for limitation of rotation to 15 degrees or limitation of adduction resulting in an inability to cross legs. A 20 percent rating is assigned for loss of abduction beyond 10 degrees. Diagnostic Code 5254 evaluates hip flail joint. The medical record does not document a left hip flail joint. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5255 evaluates impairment of the femur. A 10 percent rating is assigned for malunion of the femur with slight knee or hip disability. A 20 percent rating is assigned for malunion of the femur with moderate knee or hip disability. A 30 percent rating is assigned for malunion of the femur with marked hip or knee disability. A 60 percent rating is assigned for a fracture of the surgical neck with a false joint. A 60 percent rating is also assigned for a fracture of the shaft or anatomical neck with nonunion but without loose motion and with weightbearing preserved with aid of brace. An 80 percent rating is assigned for a fracture of the shaft or anatomical neck with nonunion or loose union. The medical record does not document an impairment of the left femur. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Veteran’s treatment records show that he continues to receive treatment for hip complaints, such as pain, and he now uses a walker due to an unsteady gait. However, his treatment records fail to establish that a hip rating in excess of 10 percent is warranted since October 31, 2012. In September 2016, the Veteran was afforded a VA examination. He reported left hip pain, but denied having any flare-ups that impacted his functioning. On examination, he demonstrated left hip flexion to 80 degrees, normal extension to 30 degrees with pain, adduction to 45 degrees, abduction to 15 degrees, normal internal rotation to 40 degrees, and normal external rotation to 60 degrees. The examiner indicated that the Veteran’s adduction was not limited such that the Veteran was unable to cross his legs. The examiner noted evidence of pain with weight bearing but that there was no evidence of localized tenderness or pain on palpation of the joint. The Veteran was unable to complete repetitive use testing due to left hip and back pain. The examiner noted that the Veteran did not have malunion or nonunion of the femur. He retained 4/5 strength in his left hip flexion and extension and normal 5/5 strength in left hip abduction. The examiner noted that there was no muscle atrophy. The examiner reported that the Veteran’s left hip disability would not affect his ability to perform a sedentary job. Regarding limitation of extension, the Veteran’s treatment records do not document compensable limitation of extension. At the September 2016 VA examination, he demonstrated normal extension. Thus, the Veteran does not meet the criteria for a compensable rating for limitation of extension, which requires extension limited to 5 degrees, beginning October 31, 2012. Regarding limitation of extension, the Veteran’s treatment records do not document compensable limitation of flexion. At the September 2016 VA examination, he had flexion to 80 degrees. Thus, the Veteran does not meet the criteria for a compensable rating for limitation of flexion, which requires flexion limited to 45 degrees, beginning October 31, 2012. Regarding an impairment of the thigh, again, the Veteran’s treatment records do not document limitation of abduction, adduction, or rotation sufficient to merit a higher rating. At the September 2016 VA examination, he had normal abduction to 45 degrees, adduction to 15 degrees, normal internal rotation to 40 degrees, and normal external rotation to 60 degrees. The examiner indicated that the Veteran was not so limited as to be unable to cross his legs. Thus, the Veteran does not meet the criteria for a compensable rating for an impairment of the thigh. Regarding an impairment of the femur, the Veteran’s treatment records do not document an impairment of the femur. At the September 2016 VA examination, the examiner indicated that the Veteran did not have malunion or nonunion of the femur. This, the Veteran does not meet the criteria for a compensable rating for an impairment of the femur. Where a diagnostic code is predicated on loss of motion, VA must also consider 38 C.F.R. § 4.40, regarding functional loss due to pain, and 38 C.F.R. § 4.45, regarding weakness, fatigability, incoordination, or pain on movement of a joint. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, a rating in excess of 10 percent for the Veteran’s service-connected left hip disability is not warranted on the basis of functional loss due to pain or weakness in this case. The Veteran’s medical records show that he reported hip pain, but no functional loss was noted. The Board recognizes that at the VA examination, pain did not result in limitations consistent with even a compensable rating. Nevertheless, the Veteran was properly assigned a disability rating of 10 percent in recognition of his left hip pain. A higher disability for the Veteran’s left hip is not warranted since October 31, 2012. As discussed, the evidence of record does not establish that the Veteran’s left hip disability rises to the level of assignment of a rating in excess of 10 percent, and the Veteran has not specifically identified any left hip symptoms which would merit a higher schedular rating (such as ankylosis or a hip replacement). Rather, the left hip symptoms that have been described, mainly pain, are consistent with a 10 percent rating beginning October 31, 2012. To this end, the Veteran was given a 10 percent rating under Diagnostic Code 5255. However, such a rating was assigned based on application of 38 C.F.R. § 4.59 which provides that painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Accordingly, a schedular rating in excess of 10 percent prior for a left hip disability is not warranted beginning October 31, 2012. As such, the claim is denied. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In November 2000, the Veteran submitted his claim for a TDIU, which was first denied by an April 2009 rating decision. In a February 2017 rating decision, TDIU was granted on an extraschedular basis effective November 27, 2012. The Veteran asserts he is entitled to a TDIU prior to November 27, 2012. The Veteran has repeatedly reported that he has been totally disabled from his service connected disabilities and unable to work since 1991, when he started receiving disability benefits from the Railroad Retirement Board (RRB) and Social Security Administration (SSA). The Board attempted to obtain the Veteran’s SSA records, but SSA reported that his records had unfortunately been destroyed. The Veteran’s RRB records show he was granted disability benefits in July 1991. The Veteran reported he was disabled due to psychiatric symptoms, diabetes, decreasing eye sight, and a lumbar spine disorder. None of these conditions were service connected at the time. In fact, of those conditions, only depression and bilateral hearing loss have since become service connected. Prior to November 27, 2012, the Veteran was service connected for residuals from a scalp laceration evaluated at 10 percent disabling, a left hip disability evaluated at 10 percent disabling, depression evaluated at 30 percent disabling from March 5, 2007 to November 27, 2012, tinnitus evaluated at 10 percent disabling from April 17, 2007, and bilateral hearing loss evaluated at a noncompensable rate from April 17, 2007. The Veteran had a combined disability rating of 10 percent prior to March 5, 2007, 40 percent from March 5, 2007, to July 5, 2007, and 50 percent from July 5, 2007, to November 26, 2012. As such, at no point prior to November 26, 2012, did the Veteran meet the schedular rating criteria for a TDIU. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. In his Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran indicated that he was disabled due to his hearing loss, chronic pain, and arthritis. He reported that he has been unable to work since 1991 due to his service connected disabilities. The evidence of record, including treatment records and lay statements, when taken in total, does not suggest the Veteran was unable to obtain or maintain substantially gainful employment as a result of his service connected disabilities prior to November 27, 2012. In October 2007, the Veteran was afforded a VA examination for his left hip disability. The VA examiner reviewed the Veteran’s claims file, interviewed the Veteran, and conducted a physical examination. The examiner opined that the Veteran’s left hip disability resulted in decreased mobility, problems with lifting and carrying, lack of stamina, and pain. In March 2009, the Veteran was afforded a VA examination for his hearing loss and tinnitus. The VA examiner reviewed the Veteran’s claims file, interviewed the Veteran, and conducted a physical examination. The examiner opined that the Veteran’s hearing loss and tinnitus made it difficult to hear in noise. In March 2009, the Veteran was afforded a VA examination for his depression. The VA examiner reviewed the Veteran’s claims file, interviewed the Veteran, and conducted a physical examination. The examiner opined that the Veteran’s depression resulted in reduced reliability and productivity. In October 2011, the Veteran was afforded a VA examination for his left hip disability. The examiner concluded that the Veteran’s left hip disability did not impact his ability to work. The Veteran reported that he quit his last job due to his diabetes, which is not a service connected disability. In October 2012, the Veteran was afforded a second VA examination for his left hip disability. The VA examiner reviewed the Veteran’s claims file, interviewed the Veteran, and conducted a physical examination. The examiner indicated that the Veteran’s left hip disability did not impact his ability to work. On November 27, 2012, the Veteran was afforded a VA examination which concluded that his depression had worsened, and based on this worsening, he was found to be unable to obtain or maintain substantially gainful activity due this a combination of his depression, left hip disability, and bilateral hearing loss. He was granted a TDIU on an extraschedular basis effective November 27, 2012. Here, the medical evidence of record in this case does not suggest that the Veteran was so functionally limited by his service connected disabilities as to be unable to obtain or maintain substantially gainful employment prior to November 27, 2012. VA medical opinions that weigh against the Veteran’s claim for a TDIU are persuasive and found to have great probative value, as they were provided after the examiners had an opportunity to interview the Veteran, review his record, and conduct physical examinations of the Veteran. Although the VA examiners have acknowledged that the Veteran’s service-connected disabilities might limit the types of work that could be performed, no VA examiner opined that the Veteran’s service-connected disabilities would have precluded work entirely prior to November 27, 2012. The Veteran has not submitted any medical opinion suggesting any inability to obtain or maintain substantially gainful employment due to his service-connected disabilities prior to November 27, 2012. The Board acknowledges that the Veteran is competent to report symptoms of his service connected disabilities. See Barr, 21 Vet. App. 303. He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code or to assess whether the symptoms preclude employment. Such competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities, and in particular his ability to work, has been provided by the VA medical professionals who have examined him. The medical findings directly address criteria under which a TDIU is assigned. The Board finds the opinions of the VA examiners to be the most probative evidence of record, and therefore is accorded greater weight than the Veteran’s subjective complaints. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability, the evidence of record does not support his claim that his service-connected disabilities alone were sufficient to prevent him from obtaining or maintaining substantially gainful employment prior to November 27, 2012. There is no question that the Veteran’s service connected disabilities would have eliminated some types of employment. For example, prior to November 27, 2012, the Veteran’s service connected disabilities would have limited him to work in a seated position as to avoid mobility and lifting and carrying due to his lack of stamina and pain. He could not have worked in a noisy environment. He would have required an unskilled job to account for his reduced reliability and productivity. However, impairment with employment is the very reason the Veteran was provided with compensable ratings. The fact remains that it was not until it was found that his psychiatric disability had worsened, was it determined that TDIU was warranted. In addition, the Veteran has not identified or submitted any competent evidence demonstrating that his service-connected disabilities, individually or in concert, precluded him from securing and maintaining substantially gainful employment and entitle him to a TDIU on an extraschedular basis prior to November 27, 2012. Indeed, given his high school education and experience working at the railroad, the Board does not believe that the Veteran’s service-connected disabilities would have prevented him from obtaining or maintaining substantially gainful employment with the above limitations. While the Veteran might not have been able to complete such a job any more due to physical limitations from his diabetes and lumbar spine, a TDIU is only warranted when service connected disabilities prevent a Veteran from obtaining or maintaining substantially gainful employment. Here, it simply is not shown that a left hip disability, residuals from a scalp laceration, depression, bilateral hearing loss, and tinnitus prevented the Veteran such prior to November 27, 2012. Accordingly, a TDIU on an extraschedular basis prior to that date is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel