Citation Nr: 18145991 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 18-27 972 DATE: October 30, 2018 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a rating in excess of 20 percent for right lower extremity sciatica is denied. Entitlement to an initial rating in excess of 10 percent for right thigh limitation of extension is denied. Entitlement to an initial compensable rating for right hip osteoarthritis is denied. Entitlement to an initial compensable rating for right thigh limitation of rotation is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. At no time during the appeal period have the Veteran’s PTSD symptoms been productive of total occupational and social impairment. 2. At no time during the appeal period has the Veteran’s right lower extremity sciatica has been productive of no more than moderate incomplete paralysis of the sciatic nerve. 3. The Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 5251, which is the maximum evaluation under the criteria for limitation of thigh extension. 4. At no time during the appeal period has the Veteran’s right hip disability been productive of right thigh flexion limited to 45 degrees. 5. At no time during the appeal period has the Veteran’s right hip disability been productive of right thigh external rotation limited to 15 degrees, right thigh adduction such that Veteran cannot cross his legs, or right thigh abduction with motion lost beyond 10 degrees. 6. The Veteran’s service-connected disabilities as likely as not precluded him from securing or following a substantially gainful occupation consistent with his educational background and work history. CONCLUSIONS OF LAW 1. The criteria for a 100 percent evaluation for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a rating in excess of 20 percent for right lower extremity sciatica have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for an initial rating in excess of 10 percent for right thigh limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5251. 4. The criteria for an initial compensable rating for right hip osteoarthritis based on limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5252. 5. The criteria for an initial compensable rating for right thigh limitation of rotation have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5253. 6. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1953 to September 1954. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for a TDIU is part and parcel of an increased rating claim when such claim is raised by the record. In a Brief in Support of Veteran in Response to 90-day Letter, received in August 2018, the Veteran’s attorney noted that the medical evidence established that the Veteran was unemployable due to the combination of his service-connected conditions. In light of the Court’s holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is appealing the original assignments of disability ratings following an award of service connection for PTSD, right thigh limitation of extension, right hip osteoarthritis, and right thigh limitation of rotation. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran is also requesting a higher rating for his service-connected right lower extremity sciatica. As service connection had already been established, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating in excess of 70 percent for PTSD Under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Codes 9411-9440, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The maximum rating of 100 percent requires total occupational and social impairment due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, any analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In Mauerhan, the court rejected the argument “that the DSM-IV criteria should be the exclusive basis in the schedule governing ratings for PTSD.” Id. at 443. Rather, distinctive PTSD symptoms in the DSM-IV are used to diagnose PTSD rather than evaluate the degree of disability resulting from the condition. Although certain symptoms must be present in order to establish the diagnosis of PTSD, as with other conditions, it is not the symptoms but their effects that determines the level of impairment. Id. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The Board notes that the use of GAF scores has been abandoned in the DSM-5 because of, among other reasons, “its conceptual lack of clarity” and “questionable psychometrics in routine practice.” See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. In this case, as the case was pending before the AOJ on August 4, 2014, it is governed by DSM-5. VA treatment records indicate that in August 2014, the Veteran had positive PTSD screen. That same month, the Veteran was referred for a mental health telephone consultation. The Veteran reported that he had a car accident when he was in the military and stated that he often became “shaky” when another car drove next to him. The Veteran reported that he often had nightmares about the accident in the military and that he often heard music playing that his wife did not hear. In September 2014 noted that the Veteran had frequent thoughts and dreams about his in-service stressor, a motor vehicle accident at which time he was thrown out of the car and the car fell on him. He could see through the window and saw the sergeant who was driving was dead and the three people that were in the other car were all dead. When triggered or having thoughts about the accident, the Veteran became irritable and yelled. The Veteran reported having good mood, energy, concentration, interest, and motivation. He noted that his appetite “comes and goes.” The Veteran reported that he fell asleep easily, but awakened in the middle of the night, and had difficulty going back to sleep. He denied hearing or seeing abnormal things that were not there, and he denied thoughts or wishes of death. In October 2014, the Veteran reported ongoing intrusive memories, anxiety in a car, initial insomnia and restless sleep. On mental status examination, the Veteran was oriented to person, place, and time; his behavior was calm and cooperative; his thought process was linear; he denied abnormal visions or voices; he denied thoughts of killing himself; and his insight and judgement were fair. The Veteran was diagnosed as having dementia likely Alzheimer’s type, DSM5 major neurocognitive disorder, and “mild sev PTSD.” In October 2014, the Veteran reported ongoing intrusive memories, anxiety in a car, initial insomnia and restless sleep also disturbed by neuropathy. On mental status examination, the Veteran was alert, interactive, and subdued; was adequately dressed and groomed; had fair bearing and eye contact; supplied brief answers, elaboration, and comments in a clear voice, exhibited worried mood and constricted affect, had linear thoughts and some survivor’s guilt, denied anhedonia or death wish, had no overt paranoia, had superficial insight and judgment. The Veteran was diagnosed as having DSM5 major neurocognitive disorder, mild/early with emerging PTSD symptoms. In January 2015, the Veteran reported ongoing intrusive memories and anxiety in a car, less restless sleep but with awakening “not knowing what is real or not real.” The Veteran underwent VA examination in March 2015 at which time he was diagnosed as having PTSD with symptoms of depressed mood, anxiety, chronic sleep impairment, and persistent delusions or hallucinations. The examiner noted that the Veteran endorsed hearing “conversations” – “maybe it’s the sergeant trying to talk to me – sounds like “Don’t worry.” The examiner also noted irritable behavior and angry outbursts with little to no provocation typically expressed as verbal or physical aggression toward people or objects. The examiner noted that per medical record, medication to improve member had been prescribed and he had been given a diagnosis of neurocognitive disorder and emerging PTSD symptoms. The examiner noted that the memory issue may or may not be related to PTSD and that further work up would be needed by his treating psychiatrist. The examiner noted that there was a possibility of depression as well contributing to the memory complaints but noted that it did not appear to interfere with his ability to socialize with his Veterans’ group. The examiner determined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. See March 2015 Initial PTSD Disability Benefits Questionnaire (DBQ). In March 2015 and September 2015, the Veteran reported intrusive memories, car anxiety, about four hours of restless sleep, and two car crash nightmares a month. On mental status examination, the Veteran was alert, interactive, and subdued; was adequately dressed and groomed; had fair bearing and eye contact; supplied brief answers, elaboration, and comments in a clear voice, exhibited worried mood and constricted affect, had linear thoughts and survivor’s guilt, denied anhedonia or death wish, had no overt paranoia, had superficial insight and judgment. The Veteran was diagnosed as having DSM5 major neurocognitive disorder, mild/early with emerging PTSD symptoms. In December 2015, the Veteran reported about five hours of restless sleep; mental status examination was consistent with those in March and September 2015. In October 2016, the Veteran reported severe nightmares at least three to four times a week which affected his sleep. The Veteran noted also having trouble with intrusive thoughts, flashbacks, and auditory hallucinations. On mental status examination, the Veteran’s appearance was age appropriate with good attention to hygiene; his mood was “ok;” his affect was in the fair range; his speech was within normal limits; his thought process was linear, logical, and goal directed; the Veteran reported visual hallucinations in his nightmares; and he was alert and fully oriented. In November 2016, the Veteran stated that his nightmares were terrible and that he only slept for 10 minutes and awakened on and off. On mental status examination, the Veteran’s appearance was age appropriate with good attention to hygiene; his mood was “ok;” his affect was anxious; he denied both suicidal and homicidal ideation; his speech was within normal limits; there was no psychosis; his thought process was linear and logical; and he was alert and fully oriented. In December 2016, the Veteran reported that he still woke up around 2 a.m. from a nightmare but was able to get back to sleep. On mental examination, which was essentially the same as in November 2016 except that his mood was “better,” and his affect was mood congruent. In March 2017, the Veteran reported that he had been doing fairly well and was able to rest well and did not have that many bad dreams. The Veteran stated that he had not had much depression or anxiety to speak of, felt helpless but not hopeless or suicidal. The examiner noted that the Veteran’s cognitive decline had continued as expected but had not affected his activities of daily living. On mental examination, which was essentially the same as in December 2016, except that the Veteran’s mood was “fine,” and his affect was full range. The Veteran underwent VA examination in February 2018 at which time he was diagnosed as having PTSD with symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, and difficulty in establishing and maintaining effective work and social relationships. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine, behavior, self-care, and conversation. See February 2018 Review PTSD DBQ. In June 2018, the Veteran reported being distressed by recent loss of his part time job after being involved in 2 car accidents in the past 2 months. He stated that one was due to inattention to a car that had suddenly braked in front of him and the other happened when he was stationary and hit by another vehicle. He reported that he had been more irritable and moody recently (road rage; verbally threatened an insurance adjuster over the phone). The Veteran described problems with sleep maintenance and that sleep medication has been somewhat helpful. He reported an increase over the prior year of being more “violent” during his sleep (i.e., punching his wife) and having vivid dreams, with some related to his past trauma and others related to his ongoing workshop projects. The Veteran reported visual and auditory hallucinations beginning six to seven months prior. Specifically, he reported occasionally seeing and talking to the sergeant who was killed and an unknown male who told him not to do certain things related to his projects. The Veteran denied that the voices were commanding in a threatening way. He also reported cognitive problems including forgetfulness (e.g., not remembering recent events, going to another room and forgetting what he was going to do) and some problems with attention, requiring frequent reminders from his wife. He also stated being somewhat concerned about full body tremors that he had been experiencing over the prior two to three-month period although the record suggests that his tremors were more longstanding. On mental status examination, the Veteran was oriented to nature of the meeting. Mood was euthymic, and affect was appropriate. Rate, volume, and tone of speech was unremarkable. He was focused on nature of evaluation and displayed goal oriented and logical thinking. Thought process was at times tangential but redirectable. The Veteran denied suicidal ideation and suicidal attempt. There was no evidence of delusional thinking based on brief assessment. He expressed some thoughts of aggression towards a neighbor that has been speeding down the driveway in their mobile park and described wanting to “kick his ass” for endangering the safety of other residents but was stopped from acting out these thoughts in the past after thinking about repercussions (i.e., getting into legal trouble). The Veteran denied any active intent or plan to hurt or kill the neighbor and reported that he normally talked to his wife, went to his workshop to work on projects for distraction and relaxation. It was noted that the Veteran owned a couple of guns in his home, but they were locked and managed by his wife. The Veteran rated the likelihood of his acting on his aggression as a 0 (out of 10, 10 being most likely) and stated that he would utilize safety plan as needed. He reported that he planned to speak with his grandson who was a deputy sheriff in for some advice on how to deal with the neighbor appropriately. In this case, the Veteran’s symptoms do not approach the severity contemplated for the 100-percent schedular rating at any time during the appeal period. As set forth above, the criteria for a 100 percent rating are met when the Veteran experiences total occupational and social impairment, which is clearly not demonstrated in this case. There has never been any indication that the Veteran’s PTSD was productive of grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. With respect to whether there is a persistent danger of hurting others, the record includes some verbal abuse and thoughts of violence. The Board, however, finds that the frequency and duration of symptoms of the Veteran’s impaired impulse control with very few periods of thoughts of violence fit squarely within the criteria contemplated under a 70 percent evaluation. A 100 percent rating is only available where there is persistent danger of hurting self or others. Infrequent episodic periods of thoughts of violence, do not rise to the level of severity and duration necessary to be considered a persistent finding. The VA treatment records refute a finding that the Veteran persistent, i.e., constant, danger to self or others. On the contrary, in VA treatment records, there were suicide or homicide thoughts or plans. For the foregoing reasons, entitlement to a 100-percent evaluation is not warranted for the Veteran’s service-connected PTSD. 2. Entitlement to a rating in excess of 20 percent for right lower extremity sciatica The Veteran’s right sided sciatica has been rated as 20 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. In rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124 (a). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as “mild,” “moderate,” and “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Pursuant to Diagnostic Code 8520, a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. Electromyography (EMG) and Nerve Conduction Velocity (NCV) test dated in October 2014 did not note sciatic nerve findings although impression noted abnormal nerve conduction study (NCS) and EMG study revealing evidence suggestive of … L4-5 radiculopathy on the right. See October 2014, Dr. R. Karnani, Neurology/Electrodiagnosis/Pain Management. The most comprehensive medical evidence of the severity of the Veteran’s right lower extremity sciatica is the March 2015 VA examination report. At that time, the Veteran reported numbness on the right lower extremity as well as shooting pain down the right lower extremity with sharp/burning sensations that feel like “pins and needles” down to the foot. With respect to the right lower extremity, the examiner diagnosed the Veteran as having sciatica and noted that the Veteran had moderate paresthesias and/or dysesthesias and numbness. Muscle strength testing 4/5 on knee extension and ankle plantar flexion and dorsiflexion. There was no muscle atrophy. Deep tendon reflexes were normal. Sensation was decreased for light touch at the upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1), and foot/toes (L5). There were no trophic changes. The examiner noted that weakness was observed on the right lower extremity and that Veteran was using a cane to support his weight/antalgic gait which was noted to be due to peripheral neuropathy of the right lower extremity. The examiner determined that the Veteran had moderate incomplete paralysis of the right sciatic nerve. See March 2015 Peripheral Nerves DBQ. At no time during the appeal period has there been competent evidence of moderately severe or severe incomplete paralysis of the right sciatic nerve. As such, the Board finds that at no time during the appeal period has the Veteran’s service-connected right-sided sciatica met the criteria for a 40 percent disability rating or higher pursuant to Diagnostic Code 8520. 3. Entitlement to an initial rating in excess of 10 percent for right thigh limitation of extension, an initial compensable rating for right hip osteoarthritis, and an initial compensable rating for right thigh limitation of rotation The Veteran’s right hip disability has been rated pursuant to 38 U.S.C. § 4.71a, Diagnostic Codes 5003, 5251, 5252, and 5253. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Thus, Diagnostic Codes 5251 for limitation of thigh extension, 5252 for limitation of thigh flexion, and 5253 for limitation of thigh rotation, adduction, and abduction are for application. The Board notes that the Veteran’s right hip range of motion have been rated separately. Separate evaluations have been assigned under Diagnostic Code 5251 (10 percent for limitation of extension), Diagnostic Code 5252 (0 percent for limitation of flexion), and Diagnostic Code 5253 (0 percent for limitation of abduction, adduction, or rotation). Pursuant to Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a. Pursuant to Diagnostic Code 5252, a 10 percent rating is warranted for limitation of flexion of the thigh to 45 degrees; a 20 percent rating is warranted for limitation of flexion of the thigh to 30 degrees; a 30 percent rating for limitation of flexion to 20 degrees; and a 40 percent rating for limitation of flexion to 10 degrees. Id. Pursuant to Diagnostic Code 5253, a 10 percent rating is warranted if the Veteran is unable to cross his legs or cannot toe-out more than 15 degrees; a 20 percent rating is warranted for impairment of the thigh, for limitation of abduction of motion lost beyond 10 degrees. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The most comprehensive medical evidence of the severity of the Veteran’s right hip disability are the March 2015 and February 2018 VA examinations report. At the March 2015 VA examination, the Veteran demonstrated right hip flexion to 90 degrees, extension to 20 degrees, internal rotation to 30 degrees, external rotation to 50 degrees, abduction to 30 degrees, and adduction to 25 degrees. Pain was noted on examination which caused additional loss in flexion, extension, abduction, and external rotation. There was evidence of pain with weight bearing, objective evidence of crepitus, and objective evidence of localized tenderness/pain on palpation to the right femur. On repetitive use testing, flexion was to 85 degrees, extension was to 20 degrees, internal rotation was to 30 degrees, external rotation was to 50 degrees, abduction was to 25 degrees. Functional loss on repetitive testing was caused by pain and weakness and reduced flexion to 80 degrees, extension to 15, right hip internal rotation was to 25 degrees, right hip external rotation was to 45 degrees, right hip abduction was to 20 degrees, and right hip adduction was to 25 degrees. Although the examination was not conducted during a flare-up, the examiner noted that Veteran reported flare-ups two to three times a week lasting from one to two hours of moderate severity. Functional loss due to flare ups caused by pain and weakness and reduced flexion to 80 degrees, extension to 15, right hip internal rotation was to 25 degrees, right hip external rotation was to 45 degrees, right hip abduction was to 20 degrees, and right hip adduction was to 25 degrees. At no time was adduction limited such that the Veteran could not cross his legs. Muscle strength testing of the right hip was 4/5 in flexion, extension, and abduction. There was no muscle atrophy or ankylosis. There was a leg length discrepancy of 0.5 centimeters less on the right noted to be consistent with the Veteran’s service-connected right hip osteoarthritis. X-rays of the right hip showed moderate osteoarthritis. At the February 2018 VA examination, the Veteran demonstrated right hip flexion to 50 degrees, extension to 10 degrees, internal rotation to 40 degrees, external rotation to 40 degrees, abduction to 30 degrees, and adduction to 15 degrees. Pain was noted on examination which caused additional loss in flexion, extension, abduction, and external rotation. There was pain noted during all motion and evidence of pain with weight bearing. There was no evidence of pain on passive range of motion testing or on non-weight bearing testing. There was no objective evidence of crepitus or objective evidence of localized tenderness/pain on palpation of the joint or associated soft tissue. On repetitive use testing, there was no additional loss of function or range of motion. The examiner noted that pain caused functional loss on repetitive testing and during flare-ups but was unable to describe either in terms of range of motion as pain prevented accurate testing. At no time was adduction limited such that the Veteran could not cross his legs. Muscle strength testing of the right hip was 5/5 in flexion, extension, and abduction. There was no muscle atrophy or ankylosis. The examiner noted that the Veteran used a cane occasionally. In this case, the Veteran is receiving the maximum rating available under Diagnostic Code 5251. The Veteran has not demonstrated flexion of the right thigh limited to 45 degrees; at its worst, flexion in February 2018 was only limited to 50 degrees. The Veteran has not demonstrated limitation of rotation such that he could not toe-out more than 15 degrees; at its worst, external rotation in March 2015 was limited to 30 degrees. The Veteran has not demonstrated limitation of adduction such that the Veteran could not cross his legs; at both VA examinations, the Veteran was able to cross his legs. The Veteran has not demonstrated limitation of abduction of motion lost beyond 10 degrees; at its worst, abduction was limited to 20 degrees. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca, 8 Vet. App. at 206-07. The Board finds that the Veteran’s subjective complaints of pain and weakness have been contemplated in the current rating assignments as the current ratings are based on the objectively demonstrated reduced motion. The March 2015 and February 2018 VA examination reports indicate that the Veteran complained of pain, and that physical examinations did demonstrate additional limitations in response to pain and weakness, and loss of range of motion. The Veteran’s loss of motion to include pain and weakness was still was within the range of 10 percent disability rating under Diagnostic Code 5003. Therefore, the clinical findings do not demonstrate that the Veteran’s symptoms result in additional functional limitation to a degree that would support a rating in excess of the current, 10 percent disability rating for limitation of thigh extension, even with consideration of whether there was additional functional impairment due to DeLuca factors. See Mitchell, 25 Vet. App. at 43 (“pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system”). 4. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “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 (a)(1), 4.15. A Veteran may still be eligible for TDIU even if employed if the employment is found to be marginal. Marginal employment is deemed to exist when a Veteran’s earned annual income does not exceed the amount set by the Bureau of the Census as the poverty threshold for one person. 38 C.F.R. § 3.16 (a). Marginal employment may be found, on a factual basis, when earned income exceeds the poverty threshold, in a protected environment such as a family business or sheltered workshop. Id. A total disability rating 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 at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). The law provides that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity. See 38 C.F.R. § 4.10. Moreover, a veteran also does not have to prove that he or she is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340. Service connection has been established for PTSD rated as 70 percent disabling, splenectomy rated as 30 percent disabling, right lower extremity sciatica rated as 20 percent disabling, right frontal region laceration scar rated as 10 percent disabling, degenerative disc disease rated as 10 percent disabling, right knee degenerative joint disease rated as 10 percent disabling, right thigh limitation of extension rated as 10 percent disabling, left lower extremity sciatica rated as 10 percent disabling. Service connection has also been established for noncompensably disabling disabilities of fractured ulna, residuals of comminuted fracture of right femur, residuals of fractured acetabulum, skull fracture, general scars, and limitation of right thigh extension, limitation of right thigh flexion, shortening of the right leg, traumatic brain injury, right hip osteoarthritis, and right thigh limitation of rotation. Thus, the Veteran meets the schedular threshold percentage criteria for consideration of a total rating based on individual unemployability due to service-connected disabilities. See 38 C.F.R. § 4.16 (a). The question which remains is whether the Veteran is unemployable due to service-connected disabilities. The examiner who conducted the March 2015 VA examination on his right hip determined that the Veteran could only perform light physical and sedentary task due to his diagnosis. A letter dated in March 2018 from Dr. Bebout noted that he had been asked to render a medical opinion on how the Veteran’s service-connected medical conditions limited him in work and everyday activities. Dr. Bebout noted that the entire claims file was available for his review. Dr. Bebout noted that in reviewing all the medical data as a whole, it was much easier to see that the Veteran was essentially non-employable from both a mental and physical standpoint. Dr. Bebout noted that the Veteran had cognition, fatigue and anxiety issues making sedentary work difficult and that his chronic pain and hip instability made physical work impossible. Dr. Bebout noted, “In my profession, medical opinion, I find this gentleman to be non-employable in either a physical or sedentary manner. This is not due to an individual issue but due to the problems that are identified in taking into account all his service connected issues together.” See March 2018, Dr. W. Bebout. Also of record is a March 2018 letter from Dr. Barnes, a certified vocational evaluator, who noted that following a review of the entire VA claim file, that the Veteran has continued to work in a part-time job with a great deal of flexibility and ability to control social demands and stress. He is unable to continue his prior full-time work due to his physical limitations to no more than light work, his need to use a cane and the weakness in his right leg. His tremor is also significant in this decision. He could not physically sustain a 37.5 to 40-hour work week. Dr. Barnes noted that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected disabilities. See March 2018, Dr. S. Barnes, Barnes Rehabilitation Services. As there is no evidence to the contrary, the Board finds that the Veteran’s service-connected disabilities rendered him unemployable. Notably, the evidence indicates that the medical opinions took into account the Veteran’s cognitive impairment and tremors. At the May 2012 VA examination for traumatic brain injury (TBI), the examiner did not find cognitive impairment or tremors at that time. As such, service connection has not been established for the Veteran’s cognitive impairment or tremors. See May 2012 TBI Examination. Nonetheless, the Board finds that by resolving all reasonable doubt in the Veteran’s favor, a TDIU is granted. 38 C.F.R. § 4.16 (a). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Olson