Citation Nr: 21001390 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-31 218 DATE: January 7, 2021 ORDER The reduction in the evaluation for limitation of rotation, abduction, or adduction of the left hip was improper and a 20 percent evaluation is restored for the period from October 26, 2017, to September 14, 2020. Entitlement to an initial evaluation in excess of 10 percent for limitation of extension of the left hip is denied. Entitlement to an initial evaluation in excess of 20 percent for limitation of rotation, abduction, or adduction of the left hip is denied. Entitlement to a 10 percent evaluation, and no greater, for limitation of flexion of the left hip is granted. Entitlement to an initial evaluation in excess of 10 percent for limitation of extension of the right hip is denied. Entitlement to an initial evaluation of 10 percent, and no greater, for limitation of flexion of the right hip is granted. Entitlement to an initial evaluation in excess of 10 percent prior to September 15, 2020, for limitation of rotation, abduction, or adduction of the right hip is denied. Entitlement to an evaluation in excess of 20 percent beginning September 15, 2020, for limitation of rotation, abduction, or adduction of the right hip is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 26, 2017, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) beginning October 26, 2017, is granted. FINDINGS OF FACT 1. The reduction in the evaluation for rotation, adduction, or abduction of the left hip did not lead to a reduction in the overall amount of compensation payable to the Veteran. 2. The record does not indicate an actual improvement in the rotation, adduction, or abduction of the Veteran’s left hip. 3. Throughout the period on appeal, the Veteran has been in receipt of the highest available evaluation for limitation of extension of the left hip. 4. Throughout the period on appeal, the Veteran has been in receipt of the highest available evaluation for limitation of rotation, abduction, or adduction of the left hip. 5. Throughout the appeal period, the Veteran experienced painful motion in flexion of the left hip. 6. Throughout the period on appeal, the Veteran has been in receipt of the highest available evaluation for limitation of extension of the right hip. 7. Throughout the appeal period, the Veteran experienced painful motion in flexion of the right hip. 8. Prior to September 15, 2020, the Veteran’s right hip was not limited to 10 degrees in abduction, and was not limited in abduction by functional loss during flare-ups. 9. Beginning September 15, 2020, the Veteran has been in receipt of the highest available evaluation for limitation of rotation, abduction, or adduction of the right hip. 10. Prior to October 26, 2017, the Veteran’s service-connected disabilities precluded bending, squatting, lifting, and prolonged standing and walking, but did not preclude sitting for prolonged periods or handling stress in a work setting. 11. Beginning October 26, 2017, the record reflects evidence of an inability to perform physical labor, to sit for prolonged periods, and to handle stress in a work setting. CONCLUSIONS OF LAW 1. The criteria for restoring the 20 percent evaluation for rotation, adduction, or abduction of the left hip have been met. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105(e), (i), 3.344, 3.951, 4.71a, Diagnostic Code 5253. 2. The criteria for an initial evaluation in excess of 10 percent for limitation of extension of the left hip have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5251. 3. The criteria for an initial evaluation in excess of 20 percent for limitation of rotation, abduction, or adduction of the left hip have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5253. 4. The criteria for a 10 percent evaluation, and no greater, for limitation of flexion of the left hip have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.59, 4.71a, Diagnostic Code 5252. 5. The criteria for an initial evaluation in excess of 10 percent for limitation of extension of the right hip have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5251. 6. The criteria for an initial compensable evaluation of 10 percent, and no greater, for limitation of flexion of the right hip have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5252. 7. The criteria for an initial evaluation in excess of 10 percent prior to September 15, 2020, for limitation of rotation, abduction, or adduction of the right hip have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5253. 8. The criteria for an evaluation in excess of 20 percent beginning September 15, 2020, for limitation of rotation, abduction, or adduction of the right hip have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5253. 9. The criteria for a TDIU prior to October 26, 2017, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 10. The criteria for a TDIU beginning October 26, 2017, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from December 1965 to December 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in December 2019. This case was previously before the Board in January 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. As an initial matter, the Board notes the Veteran filed substantive appeals in response to statements of the case discussing the limitation of rotation, adduction, or abduction of the left and right hips. However, other evidence of record, including filings from the Veteran’s representative and testimony taken at the December 2019 Board hearing, indicate the Veteran’s dissatisfaction with all the ratings pertaining to his right and left hips. Therefore, the Board will consider the evaluations for limitation of flexion and extension of the right and left hips as well. 1. Whether a reduction in the evaluation for limitation of rotation, abduction, or adduction of the left hip was proper In May 2016, the Veteran was initially granted a 20 percent evaluation for the limitation of rotation, adduction, or abduction caused by his left hip disability. A November 2017 rating decision reduced this evaluation to a noncompensable rating. The rating was increased again to 20 percent effective September 15, 2020. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the rating supported the reduction. In most cases, violations of the due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing a rating, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). There are specific procedural requirements applicable to rating reductions. If a reduction in the rating is considered warranted and the lower rating would result in a reduction or discontinuance of the compensation payments currently being made, the RO must issue a rating decision proposing the reduction and set forth all material facts and reasons. 38 C.F.R. § 3.105(e). A period of 60 days is then allowed for response; the RO must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105(i). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). VA’s General Counsel has held that the provisions of section 3.105(e) do not apply where there is no reduction in the overall amount of compensation payable. VAOPGCPREC 71-91. Here, in June 2017, VA issued a rating decision proposing to decrease two ratings applicable to the Veteran’s left hip and one rating applicable to the Veteran’s right hip. The proposed reductions would decrease the Veteran’s combined total rating from 60 percent to 40 percent. The Veteran responded in writing within 30 days, contesting the proposed reductions and requesting a hearing to present evidence and argument. In November 2017, the RO issued a rating decision reducing just one of the three proposed ratings, that of the limitation of rotation, adduction, or abduction of the left hip, from 20 percent to noncompensable. Two other evaluations, not related to the hips, were increased in the same rating decision, bringing the Veteran’s combined rating to 80 percent; had the reduced rating remained at 20 percent, the combined rating would also have been 80 percent. Regarding the procedural due process, the Veteran asserts that he was not afforded the predetermination hearing he requested prior to the RO reducing the rating, and that this was violation of his due process. As explained below, the Board has found the reduction that was implemented to be improper and has restored the original rating; thus, any failure to provide a predetermination hearing resulted in no prejudice to the Veteran. To implement a reduction, VA must show that an actual improvement in the disability occurred, and whether the examination reports reflecting such change are based upon thorough examinations. See Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. Further, the burden is on VA to show that any such improvement reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. VA must prove by a preponderance of evidence that the rating reduction was warranted. Brown, 5 Vet. App. at 421-22. The rating that was reduced is governed by Diagnostic Code 5253. Under this rating criteria, a 10 percent evaluation is assigned where there is limitation of rotation of the thigh such that the veteran cannot toe-out more than 15 degrees with the affected leg. A 10 percent evaluation is also assigned where there is limitation of adduction of the thigh such that the veteran cannot cross the legs. A 20 percent evaluation is assigned where there is limitation of abduction of the thigh such that motion is lost beyond 10 degrees. The November 2017 rating decision reduced the evaluation of the limitation of rotation, adduction, or abduction of the left hip from 20 percent to noncompensable effective October 26, 2017, the date of a VA examination the RO cited showing improvement of this aspect of the hip’s motion. The October 2017 VA examination was conducted in person, and the examiner diagnosed left hip strain. The initial range of motion of the left hip relevant to this rating criteria was noted to be 15 degrees in internal rotation, 25 degrees in external rotation, 25 degrees in abduction, and 10 degrees in adduction. The examiner indicated “no” when prompted whether the adduction was limited such that the Veteran could not cross his legs. There was no change in the range of motion after three repetitions. Pain was noted on adduction. Prior to the October 2017 VA examination, the Veteran attended a VA examination in January 2017; the examiner later completed an addendum examination report to correct an inconsistency noted in the January 2017 report. The examiner noted an August 2016 x-ray diagnosing left hip arthrosis, and diagnosed osteoarthritis of the left hip as a progression of the service-connected left hip strain. The relevant range of motion of the Veteran’s left hip was noted to be 45 degrees in abduction, 20 degrees in adduction, 40 degrees in external rotation, and 30 degrees in internal rotation. The examiner noted the adduction was limited such that the Veteran could not cross his legs. The Veteran’s VA and private treatment records from January 2017 to October 2017 do not contain treatment for hip pain or measurements of the hip range of motion. After review of the evidence, the Board finds the evidence does not show actual improvement of the rotation, adduction, or abduction of the Veteran’s left hip. The October 2017 examiner noted the Veteran was able to cross his legs, whereas the January 2017 examiner had noted he was unable to do so. However, the October 2017 VA examination does not show actual improvement over the range of motion recorded at the previous examination; rather, it shows a much more limited range of motion, as abduction was reduced by 20 degrees, adduction and internal rotation were reduced by half, and external rotation was reduced by 15 degrees. The Board further notes that the October 2017 VA examiner appears to have been less thorough in reviewing the Veteran’s claims folder than the January 2017 VA examiner, as the January 2017 VA examiner had reviewed imaging from August 2016 and diagnosed osteoarthritis as a progression of the previous hip strain, whereas the October 2017 VA examiner did not address this diagnosis and only reported the previously diagnosed hip strain. For these reasons, particular the worsening of the relevant range of motion, the Board finds the reduction was not made on a factual basis, and the 20 percent evaluation is restored from October 26, 2017, through September 14, 2020. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. §4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of sections 4.40 and 4.45 pertaining to functional impairment. DeLuca, 8 Vet. App. at 207-08. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups which resulted in functional loss. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, 8 Vet. App. at 207-08; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell, 25 Vet. App. at 37-38. Finally, painful motion is an important factor of disability with any form of arthritis. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability; actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Hip disabilities are governed by Diagnostic Codes (DC) 5250 through 5255. 38 C.F.R. § 4.71a. Diagnostic Codes 5250, 5254, and 5255 provide criteria for ankylosis of the hip, hip flail joint, and impairment of the femur, respectively. Diagnostic Code 5251 allows for a single 10 percent disability rating based on limitation of extension of the thigh when extension is limited to 5 degrees. Diagnostic Code 5252 compensates based on limitation of flexion of the thigh. A 10 percent rating is assigned for flexion limited to 45 degrees. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 20 degrees is assigned a 30 percent rating. Finally, a 40 percent rating is assigned for flexion of the thigh limited to 10 degrees. Diagnostic Code 5253 assigns a 10 percent evaluation where there is limitation of rotation of the thigh such that the veteran cannot toe-out more than 15 degrees with the affected leg. A 10 percent evaluation is also assigned where there is limitation of adduction of the thigh such that the veteran cannot cross the legs. A 20 percent evaluation is assigned where there is limitation of abduction of the thigh such that motion is lost beyond 10 degrees. 2. Entitlement to increased initial evaluations for a left hip disability The Veteran is currently in receipt of three evaluations for his left hip disability. Under DC 5251, for limitation of extension, he is assigned a 10 percent evaluation effective October 30, 2015. Under DC 5252, for limitation of flexion, he is assigned a noncompensable evaluation effective October 30, 2015. Consistent with the Board’s above decision regarding the rating reduction, under DC 5253, for limitation of rotation, adduction, or abduction, the Veteran is assigned a 20 percent evaluation effective October 30, 2015. As the Veteran has been assigned multiple ratings for his left hip disability throughout the appeal period, the Board recognizes that the assignment of multiple ratings based on the same symptoms or manifestations constitutes prohibited pyramiding. 38 C.F.R. § 4.14. However, here, the Board finds that the assignment of separate ratings based on limitation of extension, flexion, and adduction of the left hip under DCs 5251, 5252, and 5253 would not amount to pyramiding under section 4.14. Separate ratings under different diagnostic codes may be assigned where “none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other... conditions.” Esteban v. Brown, 6 Vet. App. 259 (1994). Here, this key consideration has been met, in that limitation of extension, flexion, and adduction concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip. See 38 C.F.R. § 4.45. The Veteran filed a claim for service connection for a bilateral hip disability on October 30, 2015, which was granted in a May 2016 rating decision. The Veteran contested the assigned ratings and has continuously pursued this appeal regarding those ratings. In April 2016, the Veteran first attended a VA hips examination, at which he reported severe pain when climbing or descending stairs or getting up from seated. The range of motion of the left hip was measured to be 75 degrees in flexion; 10 degrees in extension; 5 degrees in abduction; 5 degrees in adduction; 55 degrees in external rotation; and 10 degrees in internal rotation. Adduction was not noted to be limited such that the Veteran could not cross his legs. Pain was noted upon examination in all ranges of motion and caused functional loss. After three repetitions, the Veteran’s range of motion in the left hip was reduced to 5 degrees in extension, 20 degrees in external rotation, and 5 degrees in internal rotation, and remained the same in flexion, abduction, and adduction. In August 2016, the Veteran attended another VA hips examination, at which he reported flare-ups of pain after prolonged standing at work. The range of motion of the left hip was measured to be 110 degrees in flexion; 30 degrees in extension; 35 degrees in abduction; 25 degrees in adduction; and 55 degrees in external rotation; internal rotation of the left hip was not reported. Adduction was not noted to be limited such that the Veteran could not cross his legs. Pain was noted upon examination only in flexion and did not cause functional loss. No change in the range of motion was noted after three repetitions, and the examiner did not opine that there would be a change in the range of motion during a flare-up. In August 2016, the Veteran reported hip pain to his private primary care physician. An x-ray performed on August 18, 2016, revealed mild osteoarthrosis of both hips. A December 2016 VA treatment note described physical therapy for the Veteran’s knees, and noted slightly decreased bilateral hip strength. In January 2017, the Veteran attended another VA hips examination, at which he denied flare-ups of the hips. In May 2017, the same examiner completed an addendum examination report using the findings from this January 2017 in-person examination in order to correct an inconsistency reported in error on the January 2017 examination report. The VA examiner noted the August 2016 x-ray imaging and opined the current osteoarthritis was a progression of the service-connected hip strain. The range of motion of the left hip was measured to be 110 degrees in flexion; 30 degrees in extension; 45 degrees in abduction; 20 degrees in adduction; 40 degrees in external rotation; and 30 degrees in internal rotation. Adduction was noted to be limited such that the Veteran could not cross his legs. Pain was noted upon examination in flexion, extension, abduction, and adduction, but did not cause functional loss. There was no change in the range of motion after three repetitions, though the examiner noted the hips weaken with repetitive movement over time. In October 2017, the Veteran attended another VA hips examination, at which he reported having difficulty getting up and down from the ground, walking up inclines, and stair climbing. The initial range of motion of the left hip was noted to be 70 degrees in flexion, 0 degrees in extension, 25 degrees in abduction, 10 degrees in adduction, 25 degrees in external rotation, and 15 degrees in internal rotation. Pain was noted on flexion and adduction, and caused functional loss. Adduction was not noted to be limited such that the Veteran could not cross his legs. There was no change in the range of motion after three repetitions. Reduced muscle strength was noted in hip flexion, extension, and abduction. In November 2019, the Veteran visited a VA urgent care clinic complaining of increased left hip pain for two to three days after cleaning up leaves. He reported the pain was worse with movement, particularly rising from seated. Upon examination, the physician noted a full range of motion with pain on flexion; the Board notes the treatment record does not include the measurements of range of motion, just the notation “FROM.” The physician diagnosed the flare up of left hip pain as probable sacroiliitis. In September 2020, the Veteran attended another VA hips examination, at which he reported flare-ups of severe pain on a daily basis. He reported pain upon rising from seated, bending, sitting for a long time, and climbing stairs. He also reported difficulty getting down on the floor and rising from the floor. The range of motion of the left hip was measured to be 70 degrees in flexion; 10 degrees in extension; 10 degrees in abduction; 10 degrees in adduction; 35 degrees in external rotation; and 20 degrees in internal rotation. Adduction was noted to be limited such that the Veteran could not cross his legs. Pain was noted upon examination in all ranges of motion and caused functional loss. After three repetitions, the Veteran’s range of motion in the left hip was reduced to 55 degrees in flexion, 5 degrees in extension, 5 degrees in abduction, and 20 degrees in external rotation, and remained the same in adduction and internal rotation. The examiner noted pain and fatigue as factors causing this additional functional loss, and estimated the same range of motion during flare-ups and after repeated use over time. No impairment of the femur or ankylosis of the hip was noted throughout the appeal period, nor was the hip noted to be a flail joint at any point during the appeal period. After review of the evidence of record, the Board finds an increase is warranted. First, the Board notes the Veteran has been in receipt of the highest available rating for limitation of extension (DC 5251) and for limitation of rotation, abduction, or adduction (DC 5253) for his left hip throughout the period on appeal. Therefore, the provisions of sections 4.40 and 4.45, contemplating additional functional loss, are not for application to these two evaluations. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Further, ankylosis, flail joint, and impairment of the femur have not been noted at any point during the appeal period, so a separate award of one or all of the other available diagnostic codes is not available. Therefore, no increase for limitation of extension (DC 5251) and for limitation of rotation, abduction, or adduction (DC 5253) is warranted. However, the Veteran is in receipt of a noncompensable evaluation for limitation of flexion (DC 5252) throughout the appeal period. This DC requires flexion limited to 45 degrees for the minimum rating of 10 percent. The Veteran’s range of motion in flexion always exceeded 45 degrees throughout the appeal period, but pain was consistently noted in flexion. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Thus, the Board finds a 10 percent evaluation, the minimum compensable rating allowed under DC 5252, is appropriate throughout the course of the appeal. An evaluation in excess of 10 percent, however, is not warranted. Although the record reflects some evidence of flare-ups, these are described as primarily productive of increased pain. Prior to the September 2020 VA examination, there was no change in the range of motion after three repetitions and no opinion from any of the examiners that it would be reduced during a flare-up. At the September 2020 examination, the estimated range of motion in flexion during a flare-up was 55 degrees, which is greater than the next higher available rating criteria of limitation of flexion to 30 degrees. As the 10 percent evaluation assigned under section 4.59 already accounts for the documented pain on flexion, the Board finds an evaluation in excess of 10 percent is not warranted. 3. Entitlement to increased initial evaluations for a right hip disability The Veteran is currently in receipt of three evaluations for his right hip disability. Under DC 5251, for limitation of extension, he is assigned a 10 percent evaluation effective October 30, 2015. Under DC 5252, for limitation of flexion, he is assigned a noncompensable evaluation effective October 30, 2015. Under DC 5253, for limitation of rotation, adduction, or abduction, the Veteran is assigned a 10 percent evaluation effective October 30, 2015, and a 20 percent evaluation effective September 15, 2020. As discussed above regarding the left hip, these three evaluations are not considered pyramiding under section 4.14, as they address limitations in different planes of motion. In April 2016, the Veteran first attended a VA hips examination, at which he reported severe pain when climbing or descending stairs or getting up from seated. The range of motion of the right hip was measured to be 55 degrees in flexion; 5 degrees in extension; 20 degrees in abduction; 20 degrees in adduction; 25 degrees in external rotation; and 5 degrees in internal rotation. Adduction was noted to be limited such that the Veteran could not cross his legs. Pain was noted upon examination in all ranges of motion and caused functional loss. After three repetitions, the Veteran’s range of motion in the right hip was reduced to 15 degrees in abduction, 10 degrees in adduction, and 10 degrees in external rotation, and remained the same in flexion, extension, and internal rotation. The additional functional loss was noted to be caused by pain, fatigue, weakness, and lack of endurance. In August 2016, the Veteran attended another VA hips examination, at which he reported flare-ups of pain after prolonged standing at work. The range of motion of the right hip was measured to be 100 degrees in flexion; 30 degrees in extension; 35 degrees in abduction; 25 degrees in adduction; 55 degrees in external rotation; and 35 degrees in internal rotation. Adduction was not noted to be limited such that the Veteran could not cross his legs. Pain was noted upon examination only in flexion and did not cause functional loss. No change in the range of motion was noted after three repetitions, and the examiner did not opine that there would be a change in the range of motion during a flare-up. In August 2016, the Veteran reported hip pain to his private primary care physician. An x-ray performed on August 18, 2016, revealed mild osteoarthrosis of both hips. A December 2016 VA treatment note described physical therapy for the Veteran’s knees, and noted slightly decreased bilateral hip strength. In January 2017, the Veteran attended another VA hips examination, at which he denied flare-ups of the hips. In May 2017, the same examiner completed an addendum examination report using the findings from this January 2017 in-person examination in order to correct an inconsistency reported in error on the January 2017 examination report. The VA examiner noted the August 2016 x-ray imaging and opined the current osteoarthritis was a progression of the service-connected hip strain. The range of motion of the right hip was measured to be 110 degrees in flexion; 30 degrees in extension; 45 degrees in abduction; 25 degrees in adduction; 60 degrees in external rotation; and 40 degrees in internal rotation. Adduction was not noted to be limited such that the Veteran could not cross his legs. Pain was noted upon examination in flexion, extension, abduction, and adduction, but did not cause functional loss. There was no change in the range of motion after three repetitions, though the examiner noted the hips weaken with repetitive movement over time. In October 2017, the Veteran attended another VA hips examination, at which he reported having difficulty getting up and down from the ground, walking up inclines, and stair climbing. The initial range of motion of the right hip was noted to be 70 degrees in flexion, 0 degrees in extension, 20 degrees in abduction, 5 degrees in adduction, 10 degrees in external rotation, and 10 degrees in internal rotation. Pain was noted on flexion and adduction, and caused functional loss. Adduction was not noted to be limited such that the Veteran could not cross his legs. There was no change in the range of motion after three repetitions. Reduced muscle strength was noted in hip flexion, extension, and abduction. In September 2020, the Veteran attended another VA hips examination, at which he reported flare-ups of severe pain on a daily basis. He reported pain upon rising from seated, bending, sitting for a long time, and climbing stairs. He also reported difficulty getting down on the floor and rising from the floor. The range of motion of the right hip was measured to be 65 degrees in flexion; 10 degrees in extension; 10 degrees in abduction; 10 degrees in adduction; 20 degrees in external rotation; and 25 degrees in internal rotation. Adduction was noted to be limited such that the Veteran could not cross his legs. Pain was noted upon examination in all ranges of motion and caused functional loss. After three repetitions, the Veteran’s range of motion in the right hip was reduced to 50 degrees in flexion, 5 degrees in extension, 5 degrees in abduction, 15 degrees in external rotation, and 20 degrees in internal rotation, and remained the same in adduction. The examiner noted pain and fatigue as factors causing this additional functional loss, and estimated the same range of motion during flare-ups and after repeated use over time. No impairment of the femur or ankylosis of the right hip was noted throughout the appeal period, nor was the hip noted to be a flail joint at any point during the appeal period. After review of the evidence, the Board finds an increase is warranted for the right hip disability. As above, the Board notes the Veteran has been in receipt of the highest available rating for limitation of extension (DC 5251) for his right hip throughout the period on appeal. Therefore, the provisions of sections 4.40 and 4.45, contemplating additional functional loss, are not for application to this evaluation. See Johnston, 10 Vet. App. at 85. Therefore, no increase for limitation of extension is warranted. Again, ankylosis, flail joint, and impairment of the femur have not been noted at any point during the appeal period, so a separate award of one or all of the other available diagnostic codes is not available. Regarding the evaluation for limitation of flexion, the Board finds that a 10 percent evaluation under section 4.59 is also applicable to the Veteran’s right hip, as there is evidence of painful motion in right hip flexion. An evaluation in excess of 10 percent, however, is not warranted. Prior to the September 2020 VA examination, there was no change in the range of motion after three repetitions and no opinion from any of the examiners that it would be reduced during a flare-up. At the September 2020 examination, the estimated range of motion in flexion during a flare-up was 50 degrees, which is greater than the next higher available rating criteria of limitation of flexion to 30 degrees. The Board finds the evidence of record does not describe functional loss approximating the next higher evaluation; therefore, an evaluation in excess of 10 percent for limitation of flexion is not warranted. Finally, regarding the evaluation for limitation of rotation, abduction, or adduction (DC 5253), the Board finds an increase is not appropriate. The Veteran is currently in receipt of a 10 percent evaluation prior to September 15, 2020. The only available higher evaluation is 20 percent, and the rating criteria call for limitation of abduction such that motion is lost beyond 10 degrees. None of the range of motion measurements in the record show abduction limited to 10 degrees; the closest measurement is a limitation to 15 degrees after three repetitions at the April 2016 examination. Applying the provisions of 4.40 and 4.45 here does not render a higher evaluation, as none of the functional loss the Veteran reported throughout the appeal period involved abduction of the right hip, which is motion of the right leg directly out to the right side. Rather, the Veteran reported difficulty climbing stairs, rising from a seated position, being unable to cross his legs, bending, and walking up inclines. This type of functional loss does not describe a limitation of abduction; it speaks to limitations of flexion, extension, and adduction, which are contemplated by the other evaluations assigned and the criteria for a 10 percent evaluation under this DC. Therefore, the Board does not find a 20 percent evaluation for limitation of rotation, abduction, or adduction is warranted prior to September 15, 2020. Beginning September 15, 2020, the Veteran is in receipt of the highest available rating based on limitation of motion, therefore no increase is available under sections 4.40 and 4.45. See Johnston, 10 Vet. App. at 85. As noted above, the record does not reflect evidence of ankylosis, flail right hip joint, or impairment of the right femur, which are the other available DCs with higher evaluations. TDIU 4. Entitlement to a TDIU VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit for one person established by the U.S. Department of Commerce, Bureau of the Census, but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident, disabilities of one or both upper or lower extremities, or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). Because it is established VA policy that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case to the Director for consideration of an extraschedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). VA’s regulations do not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. 38 C.F.R. § 4.16. Here, the Veteran is currently service connected for persistent depressive disorder, lumbosacral strain, the bilateral hip disabilities discussed above, left and right knee osteoarthritis, and a surgical scar of the right knee. The highest evaluation assigned for these disabilities is a 50 percent evaluation for the persistent depressive disorder, effective October 26, 2017. However, the Veteran’s bilateral hip disabilities combine to 50 percent, effective October 30, 2015, which is the beginning of the period on appeal. Therefore, the Veteran is schedularly eligible to receive a TDIU beginning June 23, 2017, the date his total combined disability exceeded 70 percent. As the Veteran does not meet the schedular requirements for a portion of the appeal period, the Board will consider whether the Veteran’s case should be referred to the Compensation Services Director for extraschedular consideration for this period of time. In August 2017, the Veteran submitted an application for a TDIU, on which he reported he last worked from September 5, 2015, to September 30, 2016, in retail sales at a hardware store, approximately 24 hours a week. He reported that his highest monthly earnings were $1,032 in this position. Prior to that job, the Veteran reported last having worked in September 2011, full-time, in the department of public works for a local township. The Veteran described his education as including four years of college. At a July 2017 VA psychological examination, the Veteran reported having studied computers in high school and college, including working in the computer lab at his university. The Veteran reported that, during service, he taught computer technology, and after service, got a job with a computer service company. He also reported working in banking for three years, then working for a welding shop after retirement. The Veteran reported running his own business for 20 years, and working as a fire marshal and volunteer fire fighter for the local township. Regarding his psychological symptoms, the Veteran endorsed feeling lethargic and unmotivated. The examiner did not note difficulties in establishing or maintaining social, occupational, or transactional relationships. At the October 2017 VA hips examination, the examiner made observations regarding the effect of the hip disabilities on the Veteran’s employability. The examiner noted limitations in the Veteran’s ability to squat down, lift from the floor, and engage in low pushing or pulling activities. The examiner also noted limited tolerance for walking, walking up inclines, and stair climbing, as well as interference with standing from a low seated position. The examiner opined the Veteran would be limited by his bilateral hip disabilities to sedentary employment that permits frequent position changes from seated. The Board notes and incorporates here all the evidence recited above regarding the Veteran’s bilateral hip disabilities. At an October 2017 VA knees examination, the Veteran reported that his right knee buckles and collapses on occasion. He also reported limitations on stairs, walking on inclines and unlevel surfaces, squatting, kneeling, and climbing. A January 2018 private psychological evaluation reported a severe profile of psychological symptoms that would interfere with securing and following gainful occupation, including panic attacks, memory loss, impulse control issues, intermittently illogical speech, impaired abstract thinking, gross impairment in thought processes or communication, difficulties with attention and concentration, and difficulty establishing and maintaining effective work and social relationships. However, the January 2020 Board decision determined this psychological evaluation to be of low probative weight, as it did not provide illustrative examples, was not based on a longstanding treatment relationship, and did not reflect the other evidence of record regarding the Veteran’s psychological symptoms. Nothing added to the record since this previous decision prompts the Board to reverse this determination. At a January 2019 VA psychological examination, the Veteran endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and low motivation. At the December 2019 Board hearing, the Veteran testified that he is not able to sit in a chair for a prolonged time. He also testified that he experiences difficulty with attention and concentration, and cannot handle the stress of making group decisions. At a March 2020 VA psychological examination, the Veteran reported increasing social relationship difficulty and poor stress tolerance at times, manifested by yelling or slamming doors. After review of the evidence, the Board finds a TDIU is not warranted until October 26, 2017, the date of the VA hips and knees examinations. Although there is ample evidence of physical limitations due to the Veteran’s service-connected disabilities, his educational and occupational background indicate ability to work in jobs not requiring physical labor. The record reflects experience and training in computer technology, as well as 20 years of experience running his own business, which speaks to at least a working knowledge of administrative responsibilities and management capability. The record does not reflect evidence of the Veteran’s service-connected disabilities interfering with his ability to perform tasks in a work environment not involving physical labor or prolonged standing and walking until the October 2017 examinations. Although the 2017 VA examiner opined the Veteran could work in a setting where he could change positions frequently, and where he did not have to rise from sitting in a low position, it is unclear from the record whether such accommodations would be available to the Veteran. The Veteran’s December 2019 testimony that he was unable to sit for a prolonged period of time due to his hip disabilities, as well as his testimony that he experienced greater stress in making group decisions due to his persistent depressive disorder, is evidence that these disabilities preclude the Veteran from securing and following gainful occupation, as he would no longer be able to apply his experience in computer technology, banking, and business to a job not requiring physical work. This testimony is underscored by the reports the Veteran made at the March 2020 VA examination, where he reported decreased tolerance for stress manifesting in yelling and slamming doors, and the September 2020 VA examination, where he reported pain after prolonged sitting. The Veteran did not testify as to the onset of his inability to sit for prolonged periods; resolving reasonable doubt in favor of the Veteran, the Board finds the date of the October 2017 examinations is the earliest ascertainable date on which the service-connected disabilities precluded gainful occupation. Based on the reasons stated here, the Board finds a TDIU is not warranted, and a referral for extraschedular consideration is not warranted, prior to October 26, 2017, and that a TDIU is warranted beginning October 26, 2017. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.