Citation Nr: 20004159 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 11-16 333 DATE: January 16, 2020 ORDER A compensable disability rating for limitation of extension of the left hip is denied. A disability rating in excess of 10 percent for limitation of flexion of the left hip (previously rated as degenerative joint disease (DJD), left hip) is denied. A compensable disability rating for impairment of the thigh associated with the left hip disability, for the period prior to September 26, 2019, is denied. A 10 percent rating, but no higher, for impairment of the thigh associated with the left hip disability is granted, effective September 26, 2019, subject to the law and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) us granted, effective February 15, 2019, subject to the law and regulations governing the award of monetary benefits. REMANDED Entitlement to a TDIU prior to February 15, 2019, is remanded. FINDINGS OF FACT 1. Throughout the entire period on appeal, extension of the left hip has not been limited to 5 degrees. 2. Throughout the entire period on appeal, pain on flexion of the left hip has resulted in functional loss; flexion has not been limited to 45 degrees or less. 3. Prior to September 26, 2019, adduction of the left hip was not limited such that the Veteran could cross his legs; rotation has not been limited such that the Veteran cannot toe-out more than 15 degrees at any point during the period on appeal; abduction has not manifested by motion lost beyond 10 degrees at any point during the period on appeal. 4. Since September 26, 2019, adduction has been limited such that the Veteran cannot cross his legs. 5. For the period on appeal from February 15, 2019, the schedular criteria for a TDIU are met, and the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for limitation of extension of the left hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 2. The criteria for a disability rating in excess of10 percent for limitation of flexion of the left hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 3. Prior to September 26, 2019, the criteria for a compensable rating for impairment of the thigh associated with the left hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 4. Since September 26, 2019, the criteria for a 10 percent rating for impairment of the thigh associated with the left hip have been met; a rating in excess of 10 percent is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 5. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of a TDIU have been met for the period from February 15, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 2008 to January 2009. His decorations include the National Defense Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2009 and April 2013 rating decisions issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Denver, Colorado, RO has jurisdiction of the current appeal. In the August 2009 rating decision, the RO granted service connection for DJD of the left hip and assigned a 10 percent rating. The Veteran timely appealed the assignment of the 10 percent rating in his December 2009 Notice of Disagreement (NOD). In a January 2019 rating decision, the RO granted service connection for impairment of the thigh associated with the left hip, assigning a 0 percent rating, effective January 30, 2009. The RO also granted service connection for limitation of extension of the left hip, assigning a 0 percent rating, effective January 30, 2009. While the Veteran has not appealed these findings, the Board will nevertheless consider whether higher ratings are warranted under all diagnostic codes pertaining to a left hip disability. See, e.g., Diagnostic Codes 5250-5255. This case was previously before the Board in December 2015, October 2017, and April 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In its April 2019 remand, the Board instructed the AOJ to obtain updated treatment records and to obtain a new VA examination. After undertaking the development requested, the RO issued a Supplemental Statement of the Case in September 2019 and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 1. A compensable disability rating for limitation of extension of the left hip is denied. 2. A disability rating in excess of 10 percent for limitation of flexion of the left hip is denied 3. A compensable disability rating for impairment of the thigh associated with the left hip disability prior to September 26, 2019, is denied. 4. A 10 percent rating, but no higher, for impairment of the thigh associated with the left hip disability is granted, effective September 26, 2019. The Veteran contends his left hip disability warrants a rating in excess of 10 percent. Specifically, he asserted in his December 2009 NOD that a higher rating was warranted because his left hip caused more problems than he initially thought, that he has very limited mobility on his left side, that the condition requires treatment with medications and steroid injections, and that it leaves him unemployable. He further stated in his June 2011 VA Form 9 that his injury had worsened in severity, that the condition required injections for pain every three months, and that he had been found disabled by the Social Security Administration (SSA). As an initial matter, the Board notes that since appealing the RO’s assignment of a 10 percent rating for DJD of the left hip, the RO in a May 2019 rating decision awarded service connection for thoracolumbar degenerative arthritis with intervertebral disc syndrome as secondary to his service-connected left hip DJD, assigning a rating of 40 percent; it awarded service connection for persistent depressive disorder as secondary to his service-connected left hip DJD, assigning a rating of 30 percent; and it awarded service connection for left lower extremity radiculopathy as related to the service-connected disability of thoracolumbar spine degenerative arthritis, assigning a rating of 10 percent. As noted above, in a January 2019 rating decision, it also granted service connection for limitation of extension of the left hip and for impairment of the thigh associated with the left hip, assigning a rating of 0 percent for each disability. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Under Diagnostic Code 5251, limitation of extension of thigh, a 10 percent rating is warranted for extension limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Diagnostic Code 5252 provides for 10, 20, 30, and 40 percent ratings when hip flexion is limited 45, 30, 20, and 10 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Diagnostic Code 5253 provides for a 10 percent rating when there is limitation of adduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees. A 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. 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, not 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). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran was afforded a VA examination August 2009. He reported flare-ups related to popping of his hip which happened several times per day, as well as pain with weight-bearing. Range of motion testing was normal, but the Veteran reported pain with testing. There was no pain with repetition of motion. The Veteran was afforded another VA examination in February 2011. He reported flare-ups with walking or sitting for long periods of time. On range of motion testing, flexion ended at 110 degrees, extension ended at 20 degrees, adduction ended at 20 degrees, abduction ended at 45 degrees, external rotation ended at 45 degrees, and internal rotation ended at 30 degrees. There was no change in range of motion testing on repetitive testing, but the Veteran did exhibit pain on testing. The Veteran was afforded another VA examination in October 2011. He reported using a cane and that flare ups impacted walking, bending, and lifting. On range of motion testing, flexion was normal but painful beyond 90 degrees, extension ended at greater than 5 degrees, there was no abduction lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, rotation was not limited such that the Veteran could not toe-out more than 15 degrees, and repetitive use testing did not alter range of motion findings. The examiner opined that the Veteran had functional loss and functional impairment of the hip and thigh, but noted that strength was normal, and that the Veteran did not have ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The Veteran was afforded another VA examination in January 2018. He reported flare-ups and functional loss due to his left hip disability. Range of motion testing showed flexion ended at 90 degrees, extension ended at 20 degrees, abduction ended at 25 degrees, adduction ended at 20 degrees, external rotation ended at 40 degrees, and internal rotation ended at 20 degrees. Adduction was not limited such that the Veteran could not cross his legs. The examiner opined that she was unable to stay without mere speculation that pain, weakness, fatigability or incoordination significantly limited function ability with repeated use over time or with flare ups. The examiner further noted that strength was normal, and that the Veteran did not have ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The Veteran was afforded another VA examination in April 2019. He reported that his condition had worsened and that he experienced constant pain which radiated into the left groin. He also reported flare-ups lasting 1 to 3 days with repetitive use and during cold and rainy weather. On range of motion testing, flexion ended at 90 degrees, extension ended at 20 degrees, abduction ended at 20 degrees, adduction ended at 20 degrees, external rotation ended at 40 degrees, and internal rotation ended at 20 degrees. Adduction was not limited such that the Veteran could not cross his legs. The examiner noted that there was no evidence of pain with weight-bearing, and that repetitive use testing revealed no additional functional loss. The examiner further noted, however, that pain, weakness, fatigability and incoordination significantly limited functional ability with repeated use over time and described the functional loss in terms of range of motion, noting that flexion ended at 70 degrees. All other range of motion testing remained unchanged. The examiner also noted that while the examination was not being conducted during a flare-up, pain, weakness, fatigability or incoordination significantly limited functional ability with flare ups and described the functional loss in terms of range of motion, noting again that flexion ended at 70 degrees but that all other range of motion testing remained unchanged. The examiner further noted that strength was normal, and that the Veteran did not have ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The Veteran was afforded another VA examination in September 2019. He reported worsening pain and functional loss, but he reported no flare-ups. Range of motion testing showed flexion ended at 90 degrees, extension ended at 20 degrees, abduction ended at 40 degrees, adduction ended at 15 degrees, external rotation ended at 45 degrees, and internal rotation ended at 25 degrees. Adduction was limited such that the Veteran could not cross his legs. The examiner again noted that strength was normal, and that the Veteran did not have ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The examiner further noted that repetitive use testing did not reveal additional functional loss, but that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time, but not with flare-ups. The examiner described the functional loss in terms of range of motion, noting that flexion ended at 80 degrees but that all other range of motion testing remained unchanged. The examiner also noted that strength was normal, and that the Veteran did not have ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. Regarding the Veteran’s limited left hip extension, the Veteran is currently rated at 0 percent. Under Diagnostic Code 5251, a 10 percent rating is warranted only when extension is limited to 5 degrees. As the record does not reflect that left hip extension has been limited to 5 degrees at any time, a rating in excess of 0 percent is not warranted. Regarding the Veteran’s limited left hip flexion, the RO assigned a 10 percent rating based on painful or limited motion. Under Diagnostic Code 5252, a 10 percent rating is warranted when flexion is limited to 45 degrees, and a 20 percent rating is warranted when flexion is limited to 30 degrees. The Board notes that while the various VA examinations demonstrate that the Veteran’s flexion has at times been more limited than others, it has been limited only to 70 degrees at most during the period on appeal. A rating in excess of 10 percent for limitation of flexion of the left thigh is therefore not warranted. Regarding impairment of the thigh associated with the left hip disability, the RO assigned a 0 percent rating in its January 2019 rating decision. Under Diagnostic Code 5253, a 10 percent rating is warranted when adduction is limited such that the Veteran cannot cross his legs. In this case, the August 2009, February 2011, October 2011, January 2018, and April 2019 VA examinations do not show that the Veteran was unable to cross his legs, that abduction was limited to 10 degrees, or that rotation was limited to 15 degrees. The September 2019 VA examination, however, showed that adduction was limited such that the Veteran could not cross his legs. Given this finding, the Board finds that a 10 percent rating for impairment of the thigh associated with the left hip is warranted, effective September 26, 2019 (date of the VA examination). See Hart, Fenderson, supra. The Board also notes that the evidence demonstrates that the Veteran’s left hip disability has not been manifested by ankylosis, malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. Higher or separate ratings under Diagnostic Codes 5250, 5254, and 5255 are therefore not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255. 5. A TDIU is granted from February 15, 2019. A total disability rating for compensation may be assigned where the schedular rating is less than total and 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. 38 C.F.R. § 4.16 (a). If there is only one such disability, this disability shall be ratable at 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. Id. Unlike the rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). The Veteran contends that he is unable to work due to his service-connected disabilities. He submitted a TDIU application in January 2011, stating that he last worked in January 2009. He contends that his service-connected disabilities preclude him from being able to walk or sit in any position for longer than a few minutes at a time. A review of the record shows that the Veteran has a high school education and that he previously worked as a factory worker. The RO denied the Veteran’s claim for TDIU in an April 2013 rating decision in large part because he did not meet schedular eligibility at that time. As noted above, the RO in a May 2019 rating decision granted service connection for thoracolumbar spine degenerative arthritis with IVDS and assigned a 40 percent rating; it granted service connection for persistent depressive disorder and assigned a 30 percent rating; and it granted service connection for left lower extremity radiculopathy affecting sciatic nerve and assigned a 10 percent rating. The RO also found that the Veteran’s combined rating was 70 percent from February 15, 2019. Based on the foregoing, the Board finds that the Veteran meets schedular eligibility for TDIU for the period from February 15, 2019. See 38 C.F.R. § 4.16 (a). The record also contains a Social Security Administration (SSA) decision from April 2011. SSA found the Veteran disabled due to DJD, degenerative disc disease, posttraumatic stress disorder, and depression. It found he was unable to perform his past work, that he was limited in lifting, standing, walking, and sitting, and that his impairments would cause him to be absent from work three to four days per month because of pain. Although SSA determinations are not binding on the Board, they are relevant, and the records relied upon to make SSA determinations are probative evidence specifically in consideration of the Veteran’s claim for TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). VA examiners in April 2019 opined that tasks requiring prolonged sitting, standing and walking more than 30 minutes, lifting over 10 pounds, running, kneeling, squatting, climbing, and forward bending aggravated the Veteran’s left hip and back disabilities due to pain and lack of endurance. Another VA examiner in April 2019 opined that the Veteran’s depression caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks. Finally, a VA examiner in September 2019 opined that the Veteran’s left hip and thigh condition precluded him from squatting, walking long distances, or going up or down stairs or ladders. The Board is persuaded that the criteria for an award of a TDIU for the period from February 15, 2019, have been met. While VA examiners did not opine that any one of the Veteran’s single disabilities precluded all work, they outlined very significant limitations which certainly preclude the Veteran from being able to perform his past work as a factory worker. The Board is persuaded that when viewed as a whole, the evidence reasonably demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities for period from February 15, 2019. A TDIU for the period from February 15, 2019, is therefore warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to a TDIU prior to February 15, 2019, is remanded. Entitlement to a TDIU prior to February 15, 2019, is remanded for additional development. For the period prior to February 15, 2019, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are not met because the Veteran did not have a single service-connected disability rated at least 60 percent or a combined schedular rating of at least 70 percent. However, the Veteran submitted a statement from his treating VA physician, K. K., M.D., in January 2011. Dr. K. stated that the Veteran’s arthritis prevents him from being employed and that it causes pain and disability. Moreover, as noted above, SSA has found that the Veteran is disabled due to DJD, degenerative disc disease, posttraumatic stress disorder, and depression. A VA examiner in October 2011 opined that the Veteran’s left hip problems may limit his ability to perform active work such as carrying heavy objects or squatting. A VA examiner in January 2018 opined that tasks requiring prolonged sitting, standing and walking, heavy lifting, kneeling, squatting, climbing, and forward bending aggravated the left hip and thigh condition. Based on the foregoing, rhe Veteran’s claim for TDIU for the period prior to February 15, 2019, is remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The matter is REMANDED for the following action: 1. Refer the Veteran’s claim for TDIU for the period prior to February 15, 2019, to VA’s Director of Compensation Service for extraschedular consideration. 2. After completing the above, and any other development deemed necessary, readjudicate the TDIU claim for the period prior to February 15, 2019. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond. Thereafter, return the matter to the Board for further adjudication, if otherwise in order. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.