Citation Nr: 20060307 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 16-15 855A DATE: September 14, 2020 ORDER Entitlement to a 70 percent rating, but no higher, for generalized anxiety disorder is granted. Entitlement to a compensable rating for right hip tenosynovitis, with limited flexion, is denied. Entitlement to a compensable rating for right hip tenosynovitis, with limited abduction, is denied. Entitlement to a 10 percent rating for right hip tenosynovitis, with limited adduction, is granted. Entitlement to a rating in excess of 10 percent for right hip tenosynovitis, with limited extension, is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s anxiety disorder caused occupational and social impairment with deficiencies in most areas, but not total social or occupational impairment. 2. For the entire period on appeal, the Veteran was in receipt of the maximum rating possible for right hip, limitation of extension. 3. The Veteran’s service-connected right hip disability was manifested, at its worst, by limitation of flexion to 110 degrees with pain, limitation of extension to 20 degrees with pain, limitation of abduction to 40 degrees with pain, limitation of adduction to 25 degrees with pain; and the Veteran was unable to cross his legs. 4. The Veteran’s service-connected right hip disability did not have limitation of abduction such that motion was lost beyond 10 degrees; nor did he have limitation of rotation where he could not toe-out more than 15 degrees, impairment of the femur, flail joint, or ankylosis. 5. The Veteran’s service-connected disabilities rendered him unable to obtain substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9400. 2. The criteria for a rating in excess of 70 percent disabling for anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9400. 3. The criteria for a rating in excess of 10 percent for right hip, limitation of extension, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes 5250-5255. 4. The criteria for a compensable rating for right hip, limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes 5250-5255. 5. The criteria for a compensable rating for right hip, limitation of abduction, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes 5250-5255. 6. The criteria for a 10 percent rating for right hip, limitation of adduction, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes 5250-5255. 7. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 2004 to January 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in various sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The AMA became effective on February 19, 2019. The AMA modernized review system applies to all claims for which VA issues a notice of an initial decision on or after the February 19, 2019 effective date of the modernized review system. A claimant with a legacy claim may elect to participate in the AMA modernized review system in one of two ways: First, a claimant with a legacy claim could elect to opt-in to the modernized review system on or after November 1, 2017 as part of the rapid appeals modernization program (RAMP) pursuant to section 4 of Public Law 115-55. 38 C.F.R. §§ 3.2400; 19.2. Second, a claimant with a legacy claim may elect to opt-in to the AMA modernized review system following issuance, on or after the effective date of the AMA, of a VA Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). 38 C.F.R. §§ 3.2400, 3.2500, 19.2. Thus, an AMA appeal can come before the Board in one of three ways: 1) an appeal of a Rapid Appeals Modernization Program rating decision; 2) an appeal of a rating decision with a notification letter dated on or after February 19, 2019; or 3) a timely appeal of a statement of the case or supplemental statement of the case issued on or after February 19, 2019. 38 C.F.R. § 19.2(d); 38 C.F.R. § 3.2400. Under the “legacy” system, in order to appeal a VA decision issued prior to February 19, 2019, an appellant was required to file a notice of disagreement (NOD), specifically on VA Form 21-0958, in order to initiate an appeal. 38 C.F.R. § 20.201 (2018). The appeal must also be perfected to the Board with the filing of a Substantive Appeal. Only then does the Board have jurisdiction over a legacy appeal. 38 C.F.R. §§ 3.2400, 19.2. Under the AMA, a claimant can appeal a decision issued after February 19, 2019, by submitting a NOD using the appropriate form, VA Form 10182, directly to the Board. In the Veteran’s case, the Board notes that the Veteran’s increased rating claims for PTSD and for a right hip disability were initially decided in a July 2015 rating decision. The Veteran was notified of the decision in July 2015 and he timely submitted his NOD on VA Form 21-0958. A Statement of the Case was issued in April 2016 and the Veteran timely filed a substantive appeal which granted the Board jurisdiction of the claims under the legacy system. However, in June 2018, the Veteran filed a Fully Developed Claim which included his increased rating claims for PTSD and a right hip disability, as well as, a claim for entitlement to TDIU. These claims were adjudicated in an October 2019 rating decision and the Veteran appealed the decision by filing a NOD on VA Form 10182, requesting a hearing under the modernized review system. The Board notes, however, that although the Veteran received notification of the October 2019 rating decision after the effective date of the AMA, his increased rating claims for a right hip disability and PTSD are not available for review under the AMA as these claims were already in appellate status under the legacy system. The Veteran did not opt-in to the RAMP program nor has a SOC or SSOC been issued for these claims under the modernized system which would have allowed him to opt-in to the AMA. Thus, the Board does not have jurisdiction to review the Veteran’s increased rating claims for PTSD and for a right hip disability under the AMA as these are legacy claims. As such, the claims will be adjudicated under the legacy system. With regard to the Veteran’s claim for entitlement to TDIU, the Board finds that this claim is appropriate for review under the AMA; however, the Board also notes that a claim for a TDIU is part and parcel of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds that a TDIU was raised by the record during such time that his increased rating claims were in appellate status under the legacy system. As such, the Board finds that the Veteran’s TDIU claim is part and parcel of his increased rating claims for PTSD and for a right hip disability. Thus, the Veteran’s TDIU claim will also be decided under the legacy system. The Board notes that the Veteran will not be prejudiced in this regard as the Board’s decision concerning TDIU is favorable to the Veteran. 1. Entitlement to a rating greater than 50 percent for generalized anxiety disorder. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as, industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran’s anxiety disorder has been assigned a 50 percent rating and evaluated under Diagnostic Code 9400. Diagnostic Code 9400 uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9400. Under the General Rating Formula, a 50 percent rating is assigned when a veteran’s anxiety disorder causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9400. A 70 percent evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the 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. 38 C.F.R. § 4.130, Diagnostic Code 9400. The maximum schedular rating of 100 percent is warranted when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; 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. 38 C.F.R. § 4.130, Diagnostic Code 9400. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). The record contains Global Assessment of Functioning (GAF) scores assigned by mental health professionals who have evaluated the Veteran. The GAF is a scale reflecting the psychological, social, and occupational functioning based on a hypothetic continuum of mental health illness. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.) (DSM-IV). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by replacing references to DSM-IV with the Fifth Edition of the DSM (DSM-5). See 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45099 (effective Aug. 4, 2014). Although the DSM-5 no longer uses the GAF scale to assess functioning, the DSM-IV was in effect at the time the GAF scores of record were assigned. Therefore, the Board will consider these GAF scores in evaluating the Veteran’s occupational and social functioning. However, an examiner’s classification of the level of psychiatric impairment, by word or by a GAF score, is not determinative of the VA disability rating to be assigned. See Carpenter v. Brown, 8 Vet. App. 240 (1995). The percentage evaluation is to be based on all of the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126 (2017); VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning. A GAF score of 41-50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or a major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends.) A GAF score of 11-20 reflects some danger of hurting self or others (e.g., suicidal attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). DSM-IV. The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Merits With regard to the merits of the Veteran’s claim, the Veteran contends a higher rating is warranted for his anxiety disorder. As explained above, he has been assigned a 50 percent rating for the entire appeal period. After reviewing the evidence, the Board finds that a 70 percent rating, but no higher, is warranted for the entire appeal period. Initially, the Board notes that the Veteran’s assigned 50 percent rating was based upon findings in his June 2015 PTSD examination. In the examination, the Veteran reported that his first bout of mental health treatment was during his military service after being stalked by a woman who threatened his family. He reported symptoms of sleepwalking, anxiety, and concerns for his personal safety and was diagnosed with conversion disorder with motor symptoms/deficits. He further reported that he was hospitalized in December 2010, prior to his discharge from service, and he was subsequently hospitalized after service in April 2011 when he threatened to kill himself with a circular saw. The Veteran reported being married to his wife since 2009 and that they have two children and a large menagerie of animals, including reptiles, birds, dogs, and goats. Occupationally, the Veteran reported that he spent two semesters at the Art Institute, but he did not continue due to difficulties of being around large groups of people. He further reported that he was working with at-risk kids with the Boy Scouts of America, but he was fired after being hospitalized. He also reported working at the airport for a few months before being terminated, and he reported that he was subsequently terminated from a farm job he held. The examiner noted symptoms of anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, and that his symptoms cause occupational and social impairment with occasional decrease in work efficiency. The examiner found that his symptoms did not support a diagnosis for PTSD; thus, the examiner diagnosed the Veteran with generalized anxiety disorder finding that his anxiety disorder is a continuation of conversion disorder diagnosed in service. He explained that the Veteran has avoided locations where he believes the stalker may find him. The examiner further found that the Veteran has not had any significant trauma since discharge; but there have been remissions and his symptoms are continuous. While the examiner’s findings describe symptoms of no more than moderate impairment, the Board finds that the Veteran’s symptoms waxed and waned throughout the appeal period, ranging from moderate to severe impairment. The Board particularly notes that immediately after discharge from service, the Veteran exhibited serious symptoms stemming from his psychiatric disorder. For example, the Veteran was discharged from service on January 27, 2011, and records from the Social Security Administration (SSA) show that the Veteran was treated in the emergency department shortly thereafter on January 31, 2011 for an anxiety attack. It was noted that he experienced a panic attack and used a broom handle to destroy objects in his home. In addition, private treatment records show that the Veteran was hospitalized in April 2011 after an impulsive suicide attempt due to psychosocial stress regarding financial difficulties and problems accessing VA services. The Veteran was discharged after one day with a recommendation to follow up with the VA mental health clinic. He received discharge diagnoses of PTSD, anxiety disorder, r/o panic disorder, and r/o adjustment disorder with anxiety features; and, he was assigned a GAF score of 35, indicative of serious symptoms. Following his hospital discharge, the Veteran received a VA mental health assessment on April 8, 2011 where he reiterated that his hospitalization was the result of being panicked and that he felt overwhelmed by his finances. He reported that he was in treatment since August 2010 due to panic disorder, depression, and PTSD, and that his PTSD was caused by him being stalked by a female for the past two years. The Veteran indicated that he was fearful that the person was trying to kill his wife, and that the incident caused him to move and to avoid the use of the internet and his cell phone due to fear of his stalker finding him again. He also reported being discharged from service due to having panic attacks daily, and that he currently has panic attacks two times per month. The examiner diagnosed the Veteran with panic disorder w/out agoraphobia, r/o PTSD, and assigned a GAF score of 51. The Veteran was also considered a high risk for suicide with the status to be reviewed every 90 days. Conversely, treatment records shortly thereafter appear to show the Veteran’s psychiatric disorder decreased in severity. For instance, in a June 2011 mental health note, the examiner noted that the Veteran was talkative, his affect was bright, and his mood was euthymic. The Veteran also denied suicidal thoughts since his last hospitalization and he reported having a good relationship with his wife. He further reported that he enjoys his animals, hiking, and skateboarding, and that he is working on having consistent part-time employment and plans to continue college classes. The examiner noted that a suicide risk flag was not needed, and the Veteran’s GAF score was increased to 55. While the Veteran’s symptoms seemed to show improvement, a December 2011 mental health note showed otherwise as the Veteran’s Sertraline medication was increased to 150 mg after the examiner found that the Veteran’s mood was slightly depressed, and his anxiety was more evident. The Veteran also reported that he lost his job with the Boy Scouts. Similarly, although the June 2015 examiner found that the Veteran’s symptoms were no more than mild to moderate, VA treatment records show that the Veteran’s medication was increased again in May 2015 after the Veteran reported an increase in symptoms. During his May 2015 mental health visit, the Veteran reported being on a downward slope. He indicated that his outside therapist recommended changing his current medication management. Notably, the VA examiner agreed and increased the Veteran’s sertraline to 200 mg. The examiner also referred the Veteran to Eye Movement Desensitization and Reprocessing (EMDR) therapy. The Board notes that during his August 2015 initial evaluation for EMDR therapy, the Veteran reported having nightmares a couple of times a week, and frequent paranoia of people coming into his yard. He specifically reported that he becomes angry, impulsive, and has tunnel vision when people come into his yard. A particular episode was described in his June 2015 PTSD examination where it was noted that the Veteran threatened a man with a knife in March 2015 who was later identified as a utility worker sent to shut off the propane tank to his home for failure to pay the bill. After considering the above findings and remaining evidence of record, the Board finds the Veteran’s psychiatric disorder showed periods of increases and decreases in symptoms ranging from moderate to severe impairment. Thus, the Board concludes the evidence is in equipoise as to whether the Veteran’s symptoms more nearly approximated the criteria for a 50 percent or 70 percent rating. Therefore, resolving all doubt in favor of the Veteran, the Board finds a 70 percent rating is warranted for the entire appeal period. The Board also finds that a rating greater than 70 percent is not warranted as the Veteran’s symptoms did not cause total social and occupational impairment. The Board notes that although the Veteran was hospitalized for suicidal ideation in April 2011, this episode was an isolated incident and the Veteran did not have episodes of suicidal ideation with such frequency or duration that would warrant a higher rating. For example, in his April 2011 follow-up mental health evaluation, the Veteran rated his depression as a two out of ten, with ten being the highest. He reported a decrease in panic attacks to twice per month, and he reported that, overall, his mood has been quite good which he noted was troubling to him because of his recent impulsive attempt. He further reported doing well since his suicide attempt and he denied any and all suicidal/homicidal ideations and hallucinations. In addition, the examiner noted that while the Veteran made a suicidal threat, he appears to not have had an intent since the Veteran clearly stated that if he had, he would have killed himself. The examiner described the event as a “superficial gesture of putting broken glass to his neck.” Furthermore, in a subsequent April 29, 2011 initial mental health evaluation, the Veteran’s psychiatric disorder appeared stable. In the examination the Veteran reported that he was “doing well,” which was reiterated by his wife, and he indicated that “things are on a path to normal.” He also reported having a good relationship with his wife and that they enjoy their children, skateboarding, and going to the zoo. The Veteran described his depression as a 7, with 10 being the best he has felt; and, he denied suicidal/homicidal ideation. He also reported having a good appetite and sleep, and that concentration was fine. Additionally, although the Veteran was followed by the SAFE VET program after being placed on the list for high risk of suicide, a May 2011 mental health note showed that he was no longer followed by the program and that he was no longer a risk for suicide. Moreover, an October 2013 mental health noted showed the Veteran reported he was no longer feeling suicidal although his mood was more depressed; and, in an August 2015 mental health visit, he reported that his last attempted suicide was years ago while in service in 2010, and shortly after discharge in 2011. Other evidence of record which shows the Veteran did not exhibit total impairment include mental status examinations that were performed during his mental health visits. The examinations show that the Veteran’s mood ranged from depressed to euthymic; however, he consistently showed good hygiene, logical thought process, and his cognitive, judgment, and insight were intact. There was no evidence of hallucinations or delusions, and the Veteran consistently denied suicidal/homicidal ideation. Additionally, a May 2012 medication management note shows the Veteran’s wife reported that he was more sociable and was getting out more in the community. In a March 2013 mental health visit, the Veteran reported problems with memory and being easily startled; however, he also reported that he was not experiencing as many panic attacks; his mood was better overall, and he no longer felt suicidal. Moreover, in a March 2015 mental health visit, the examiner noted that the Veteran was calm, cooperative, and he denied any suicidal/homicidal thoughts or plans. The examiner further noted the Veteran was well-groomed, alert and oriented, and he denied any urgent mental health crisis. The Board recognizes that in a subsequent May 2015 mental health visit, the Veteran received an increase in his medication and was referred to EMDR therapy; however, this was not due to the Veteran exhibiting total impairment as the examiner specifically noted that the Veteran “has taken a small step back.” Further, although the Veteran reported being on a “downward slope,” he also reported that he is better than his prior care 4 to 5 years ago. For the foregoing reasons, the Board finds the preponderance of evidence is against a finding that a rating greater than 70 percent is warranted. The Board recognizes that the Veteran sought treatment from an outside therapist and that said records may be relevant to his claim; however, VA attempted to assist the Veteran in retrieving these records in July 2019, but the Veteran did not complete and/or return the requested VA Form 21-4142, Authorization to Disclose Information. Therefore, VA’s duty to assist has been satisfied, and the decision herein has been based on the evidence currently of record. Accordingly, a 70 percent rating, but no higher, is granted for the entire appeal period. 2. Entitlement to a compensable rating for right hip tenosynovitis with limited flexion. 3. Entitlement to a compensable rating for right hip tenosynovitis with limited abduction. 4. Entitlement to a rating in excess of 10 percent for right hip tenosynovitis with limited extension. The Veteran is seeking an increased rating for his service-connected right hip disability which is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, and 5253. These diagnostic codes provide ratings for limitation of extension, limitation of flexion, and impairment of the thigh and hip. The Board will consider whether the Veteran is entitled to receive higher ratings for his right hip under all applicable diagnostic codes. At the outset, the Board notes that Diagnostic Code 5054 which provides ratings for implantation of prosthesis, Diagnostic Code 5250 which provides ratings for ankylosis of the hip, Diagnostic Code 5254 which provides ratings for flail joint of the hip, and Diagnostic Code 5255 which provides ratings for impairment of the femur are not applicable in this case, as there is no evidence that the Veteran has had hip replacement, ankylosis, flail joint of the hip, or impairment of the femur. Normal range of motion of the hip is from 0 to 125 degrees of flexion, 0 to 30 degrees of extension, 0 to 45 degrees of abduction, 0 to 25 degrees of adduction, 0 to 60 degrees for external rotation, and 0 to 40 degrees for external rotation. See 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5251, a 10 percent rating is warranted for limitation of extension of the thigh to 5 degrees. Id. Under 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 flexion limited to 30 degrees; a 30 percent rating is warranted for flexion limited to 20 degrees; and a 40 percent rating is warranted for flexion limited to 10 degrees. Id. Impairment of the thigh is rated under Diagnostic Code 5253. A 10 percent rating is warranted for limitation of rotation of the thigh, cannot toe-out more than 15 degrees, in the affected leg; a 10 percent rating is also warranted for limitation of adduction of the thigh, cannot cross legs; and a 20 percent rating is warranted for limitation of abduction of the thigh with motion lost beyond 10 degrees. Id. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Separate evaluations may be assigned under Diagnostic Codes 5251 (extension), 5252 (flexion), and 5253 (abduction, adduction, or rotation) for disability of the same joint. See VA Adjudication Procedures Manual (M21-1) III.iv.4.A.1.a-f. When evaluating joint disabilities rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. The Court has also issued the opinion of Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. Turning to the evidence, the record shows that the Veteran received a VA hip examination in June 2015. In the examination, the Veteran reported having no flare-ups or functional loss to his hip. Range of motion findings showed right hip flexion was limited to 110 degrees, extension was limited to 20 degrees, abduction was limited to 40 degrees, and adduction was limited to 25 degrees. External rotation was normal as limited to 60 degrees, and internal rotation was normal as limited to 40 degrees. The examiner found that the Veteran’s hip adduction is not limited such that the Veteran cannot cross his legs. Although pain was noted on the examination and with weightbearing, there was no functional loss due to pain. The examiner noted tenderness on palpation, but no crepitus. The Veteran was able to perform repetitive use testing with no loss in function or range of motion, but pain caused functional loss after repeated use over time. The examiner noted additional contributing factors of disturbance of locomotion and pain with exercise, but there was no loss in muscle strength, no ankylosis, no malunion or nonunion of femur, flail hip joint, leg length discrepancy, or other abnormalities. Based on the above examination and remaining evidence, the Board finds that a higher rating is not warranted for right hip, limitation of extension, as the Veteran is already in receipt of the highest available rating under Diagnostic Code 5251. With regard to right hip, limitation of adduction, the Board finds a 10 percent rating is warranted. Although the June 2015 examiner found that the Veteran’s right hip adduction did not limit his ability to cross his legs, the Board recognizes the Veteran’s June 2020 hearing testimony in which he testified that he cannot cross his legs for very long, and that if he does, he would eventually lose feeling in his legs. The Board notes that his testimony is consistent with a February 2012 VA treatment record where the Veteran reported that he gets tingles when he crosses his legs. As a result, the examiner recommended that the Veteran not cross his legs. Therefore, the Board resolves reasonable doubt in favor of the Veteran and finds that a compensable rating of 10 percent is warranted for limitation of adduction. As there is no evidence that the Veteran’s right hip has limitation of rotation that inhibits the Veteran’s ability to toe-out more than 15 degrees, nor is there limitation of abduction with motion lost beyond 10 degrees, separate ratings for these limitations are not warranted. Concerning right hip, limitation of flexion, the Board finds a compensable rating is not warranted. The Board notes that a compensable rating would require, at minimum, a showing of flexion limited to 45 degrees. However, the Veteran’s right hip flexion was limited to 110 degrees with no functional loss due to pain. Although a July 2012 VA treatment record showed the Veteran had pain with external rotation of the right hip and limited flexion, the examiner did not indicate the degree of limited flexion or rotation. Likewise, although the June 2015 examiner did not indicate the degree of loss after finding functional loss due to pain after repeated use over time, such as when the Veteran exercises, the Board finds that any additional limitation of motion would have been minimal at best, as the Veteran had no further limitation in motion or loss in function after repetitive use testing. Moreover, range of motion findings showed the Veteran’s limitation of flexion with pain was 110 degrees, merely 15 degrees shy of normal; thus, the Board finds it highly unlikely that any pain after repeated use would have caused limitation to 45 degrees necessary for a compensable rating. Furthermore, other evidence of record shows that the Veteran’s hip pain did not cause significant functional loss as the evidence shows the Veteran was able to go hiking and skateboarding. In addition, the examiner in a September 2015 primary care noted that the Veteran has occasional hip and low back pain, but he remains active, runs a goat farm, and participates in skateboarding and street “lugin” [sic]. For the reasons outlined above, a compensable rating is not warranted for right hip, limitation of flexion, and a higher rating is not warranted for limitation of extension. However, a 10 percent rating is granted for right hip, limitation of adduction. The Veteran is not entitled to any additional separate ratings under Diagnostic Code 5253 as there is no evidence that his right hip inhibits the ability to toe-out more than 15 degrees, nor is there limitation of abduction with motion lost beyond 10 degrees. Likewise, separate ratings are not warranted under Diagnostic Codes 5250, 5254, or 5255 as there is no evidence of ankylosis, flail joint, or impairment of the femur. 5. Entitlement to a TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). The Veteran seeks entitlement to TDIU on the basis of his service-connected disabilities. As the Veteran has been assigned a 70 percent rating for service-connected PTSD for the entire appeal period, he will have met the basic percentage requirements for consideration of TDIU under 38 C.F.R. § 4.16 (a). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). With regard to the merits of the Veteran’s claim, the evidence shows that in his June 2015 VA hip examination, the examiner noted that the Veteran’s right hip disability limits the Veteran’s ability to walk or stand for greater than four hours at a time without needing a break, and he cannot perform repetitive lifting greater than 30 pounds or bend forward repetitively. Additionally, in his June 2015 VA PTSD examination, the examiner found that the Veteran’s anxiety disorder causes occupational and social impairment with occasional decrease in work efficiency. While these findings do not definitively show that the Veteran’s employability is precluded, the Board has also considered the Veteran’s SSA records. In this regard, the Board observes an August 2013 medical opinion from a private psychologist who concluded that the Veteran was not employable due to emotional instability. Moreover, in the decision which awarded the Veteran SSA disability benefits, it was noted that his disability stemmed primarily from his depressive disorder and anxiety disorder. It was also noted that the Veteran has marked limitations in social functioning that prevent him from interacting with others. This finding was also noted in his June 2015 PTSD examination as the examiner found that the Veteran has difficulty in establishing and maintaining effective work and social relationships. Furthermore, a March 2013 mental health note indicated that the Veteran was not comfortable being around people, to the extent that the Veteran did not seek treatment to avoid group therapy. This notion was also shown in January 2011 emergency room records where the Veteran’s wife reported that the Veteran cannot tolerate group treatment. The Board also notes a June 2012 telephone encounter in which the Veteran reported that every time he gets a new job, something comes up with his medications and he gets fired. He further stated that his employers do not believe that he is reliable on the medications that he is taking. Similarly, in a July 2012 mental health note, the Veteran reported that he lost four jobs due to his medication. The Board finds this consistent with his application for TDIU, VA Form 21-8940, and his SSA records which outline his work history, as both show marginal employment from 2011 to 2012 after his discharge from service, and no further employment since that time. Given the totality of these findings, the Board concludes the preponderance of the evidence supports a finding that the Veteran’s psychiatric disorder and right hip disability preclude his ability to maintain gainful employment. The Board recognizes that SSA decisions are not dispositive; however, based on the collective evidence of record, the Board finds the decision is persuasive. Accordingly, the claim for TDIU is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.