Citation Nr: 21064075 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-25 695 DATE: October 19, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for avascular necrosis, left hip status post total hip arthroplasty (left hip disability) is granted. A total rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows markedly severe residual weakness, pain, or limitation of motion of the left hip due to left hip disability. 2. The Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent, but no higher, for left hip disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.13, 4.21, 4.30, 4.71a, Diagnostic Code 5054. 2. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a), 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the Marine Corps from June 1977 to September 1981. The issues are on appeal from a March 2013 rating decision. Briefly reviewing the procedural history, the Board of Veterans' Appeals (Board) granted service connection for left hip disability in a November 2016 decision. The regional office (RO) rated the Veteran's left hip disability as 30 percent disabling, effective January 16, 2013, or date of claim in November 2016. The Veteran submitted a timely notice of disagreement and in February 2017, the RO increased his rating for left hip disability from 30 percent to 50 percent, with the same effective date. Again, the Veteran disagreed with his rating assignment. In May 2018, the Board remanded the matter for a complete and updated VA examination to assess the current manifestations of his left hip disability. Additionally, the Board notes that the Veteran's representative has raised a TDIU claim as part and parcel of his increased ratings claim in November 2017 correspondence. When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including a TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning resulting for a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civilian occupations, resulting from such diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Notably, "staged" ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 1. Entitlement to an initial rating in excess of 50 percent for left hip disability The Veteran contends entitlement to an increased rating for his service-connected left hip disability is warranted. He is currently in receipt of a 50 percent disability rating under Diagnostic Code 5054 which provides rating criteria following a hip replacement. Under Diagnostic Code 5054, for hip replacement, a 100 percent rating is to be assigned for a one-year period following implantation of the prosthesis. Thereafter, a 90 percent rating is warranted with painful motion or weakness such as to require the use of crutches; a 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion; and a 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion. 38 C.F.R. § 4.71a. Standard motion of the hip joint is from 0 degrees extension to 125 degrees flexion and 0 degrees adduction to 45 degrees abduction. 38 C.F.R. § 4.71, Plate II. The terms "markedly severe" and "moderately severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula to determine when symptomatology is "markedly severe" or "moderately severe," the Board must evaluate all of the evidence to ensure an equitable and just decision. 38 C.F.R. § 4.6. Turning to the evidence, the Veteran underwent a total left hip replacement in 1995. VA and private treatment records show that the Veteran did not complain of or was noted to suffer from any serious residual symptoms after the surgery until the mid-2000's, or around a decade after the surgery. Left hip disability symptoms manifested as significant pain, aching, joint stiffness (particularly in the mornings), difficulty lifting his legs, difficulty lifting his feet when walking, walking with an antalgic gait, and suffering from mechanical falls. A private medical opinion obtained in May 2015 for TDIU purposes noted that the Veteran had progressive trouble with his left hip, making it difficult for him to walk and carry his mailbag on his designated route as a mail carrier. The Veteran was afforded a VA examination in November 2016. Relevant findings included reporting achy pain in his left hip which caused him to regularly use a cane. Functionally, he could not bend nor lift. The Veteran was limited to standing for five minutes, walking a block, and was unable to cross his legs since his surgery. However, he denied experiencing giving out or locking up of his left hip. Upon range of motion testing, all planes were normal except for adduction which measured to zero degrees and was found to contribute to functional loss as it limited motion. No pain was noted on the exam although pain was found with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions and additional loss of function or range of motion was not indicated. There was no objective evidence of crepitus, muscle atrophy, ankylosis, or other additional considerations. The Veteran demonstrated normal muscle strength with flexion, extension, and abduction maneuvers. Radiographic imaging did not show degenerative or traumatic arthritis. Most recently, the Veteran was afforded a VA examination for his left hip in May 2019 with an April 2020 addendum. He reported that the condition had worsened so that the pain caused him to sometimes stay in bed all day. Current symptoms manifested as intermittent pain, worsened with activity. The Veteran was not observed as needing an assistive device. Residual symptoms of his left hip surgery were pain and range of motion loss. Upon range of motion testing, flexion measured to 110 degrees extension, adduction to 20 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. Extension and abduction maneuvers displayed normal range of motion measurements. Adduction did not limit the Veteran from crossing his legs. Pain with all maneuvers was observed but did not result in nor cause functional loss. Evidence of pain with weight bearing and of crepitus was noted. Muscle atrophy, ankylosis, objective evidence of pain on non-weight bearing were not found. Muscle strength of flexion, extension, and abduction maneuvers were normal and displayed no reduction. Passive range of motion values were the same as active range of motion values. The Veteran was capable of performing repetitive-use testing with at least three repetitions and no additional loss of function or range of motion. He was not examined immediately after repetitive use over time and the examination was not medically consistent or inconsistent with the Veteran's statements on functional loss. Pain, weakness, fatigability, or incoordination was not observed as significantly limiting functional ability with repeated use over a period. However, the examiner described functional loss after repetitive use in range of motion terms manifesting as flexion to 70 degrees, extension to 15 degrees, abduction to 25 degrees, adduction to 20 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees. Post-test adduction limited the Veteran from crossing his legs. Although the Veteran was not examined during a flare-up, the examiner noted that the examination was medically consistent with his statements describing functional loss during a flare-up. Pain and weakness significantly limited his functional ability during a flare-up with flexion ending at 90 degrees, extension at 20 degrees, abduction at 35 degrees, adduction at 15 degrees, external rotation at 30 degrees, and internal rotation at 20 degrees. Post-test adduction did not limit the Veteran from crossing his legs. Finally, in a private July 2021 evaluation for his TDIU claim, the Veteran's left hip was found to prevent him from standing for longer than 15 minutes; allowed him to walk only for 15 minutes, slowly and assisted with a cane; and allowed him to only sit for a total of 15 minutes, depending on the chair, although he was uncomfortable for a lot of that time. Based on the evidence, the Board finds that an initial rating of 70 percent, but no higher, for left hip disability is warranted. The evidence shows that the left hip disability symptoms are markedly severe due to pain, weakness, and limited range of motion. The April 2020 examiner noted that the Veteran's flare-ups significantly limited his left hip in all maneuvers with flexion ending at 90 degrees, extension at 20 degrees, abduction at 35 degrees, adduction at 15 degrees, external rotation at 30 degrees, and internal rotation at 20 degrees. Further, weakness is present as the Veteran demonstrates an abnormal gait when he walks, favoring his left side, and he requires use of a cane. Based on the Veteran's frequency of pain and flare-ups as well as his limited motion and the subsequent functional impairments as described above, the Board finds that the Veteran's left hip disability most closely approximate the criteria of a 70 percent disability rating under Diagnostic Code 5054. The Board also finds that the Veteran's left hip disability does not amount to painful motion or weakness such as to require the use of crutches. While the Veteran competently and credibly indicated regular use of a cane for locomotion, the medical records and lay evidence of record lacks any reference to reliance upon crutches. Also, while the Veteran completely and credibly reported mobility limitations, his statements reflect that he is, in fact, still mobile. Therefore, the Veteran's residuals are appropriately rated under the criteria for a 70 percent disability rating under Diagnostic Code 5054. As such, the Board concludes the preponderance of the evidence is against a finding of painful motion or weakness such as to require the use of crutches following prosthesis implantation. The Board has also considered whether the Veteran is entitled to additional separate ratings under Diagnostic Codes 5003, 5251, 5252, and/or 5253. Said codes, however, provide ratings based on pain and limited motion which are already expressly contemplated under Diagnostic Code 5054 (under which the Veteran is currently rated). The Veteran's pain and limited motion of the left hip are therefore expressly contemplated in his 70 percent rating under Diagnostic Code 5054. As such, awarding additional ratings under Diagnostic Codes 5003, 5251, 5252, and/or 5253 would constitute impermissible pyramiding because such action would result in the Veteran receiving two ratings based on the same manifestations of disability. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. 259. Accordingly, the Board finds that the Veteran is not entitled to additional or separate ratings for the left hip disability, under Diagnostic Codes 5003, 5251, 5252, and/or 5253. In conclusion, the Board finds an initial rating of 70 percent, but no higher, for service-connected left hip injury is granted. 2. Entitlement to a TDIU Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In light of this decision, the Veteran's service-connected disabilities are left hip disability at 70 percent disabling, unspecified depressive disorder at 30 percent disabling, right trochanteric pain syndrome based on impairment of thigh at 10 percent disabling, right trochanteric pain syndrome based on limited extension at noncompensable, right trochanteric pain syndrome based on limited flexion at noncompensable and left hip scar at noncompensable. Thus, the Veteran meets the requirement for a TDIU with a disability rated at 70 percent or higher for the entire period on appeal. The Veteran's submitted VA Form 8940 shows that he last worked at HealthEast St. Joseph's Hospital in the laundry department for 40 hours a week in 2002. He did not lose any time due to illness. The Veteran completed four years of high school and obtained his GED during active duty. As noted above, a private medical opinion on the left hip was obtained in May 2015. Here, the Veteran was found to experience progressive trouble with his left hip, making it difficult for him to walk and carry his mailbag on his designated route. In July 2016, a private psychologist evaluated the Veteran for a disability benefits questionnaire (DBQ) and a mental health examination in September 2016. The Veteran was diagnosed with depressive disorder which caused occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. Specifically, the depressive disorder manifested as severe depression, anxiety, anger moods, lack of motivation/low energy, sleep problems, poor concentration, pain and mobility issues, task ability issues, cognitive/memory and social deficits such as mild memory loss and impairment of short- and long-term memory. The psychologist noted that the Veteran had three close friends who usually went to his home to check in on him as the Veteran did not like leaving his home due to anxiety. Further, his hip pain caused irritability and physical pain, which lead to continuous depression as he was unable to do the same activities as he had before service. The chronic hip pain also caused insufficient sleep, contributing to his irritability and lack of energy to perform daily tasks. The private psychologist opined that based on his evaluation and interview, the Veteran's symptoms were severe enough to disable and preclude him from sustaining any substantial, gainful, employment. A VA treatment note from January 2018 stated that the Veteran was unemployed or worked in carpentry, electrical, and plumbing. The Veteran was afforded a VA examination for his depressive disorder in May 2019. The examiner found that the Veteran's depressive disorder caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported that he worked as a mail carrier for 18 years and quit his job after being caught for theft. Subsequently, he worked at Quality Tools as an expeditor for five years but could not continue working due to his legs and the length of standing time required. Although he was unsure, he believed that he was fired from that position as he continued to miss work because of his physical disabilities. Since then, the Veteran worked odd jobs helping his friend out who was a plumber. He attempted to work at Amazon a year prior but lasted only three to four days due to his physical limitations. In May 2019, the Veteran was afforded a VA examination for his bilateral hip disabilities and the examiner noted that the right hip was due to manifestations of abnormal muscle and gait patterns. As discussed above, functionally, his bilateral hip disability caused pain, mechanical falls, and limitation in range of motion. VA treatment notes from 2020 showed that the Veteran worked in electrical wiring or was unemployed. The Veteran was evaluated in July 2021 by a private Doctor of Osteopathic Medicine for his TDIU claim, Dr. S.E. The private doctor noted that he had consulted with the Veteran and reviewed the evidence. In Dr. S.E.'s opinion, it was at least as likely as not that the combination of pain and limitations caused by the Veteran's service-connected impairments prevented him from being able to work. As discussed above, due to his bilateral hip disabilities, the Veteran was observed as unable to stand for 15 minutes without needing to lean on something because of pain, and was only able to walk for 15 minutes, slowly and assisted with a cane. He could sit for a total of 15 minutes at a time depending on the chair but was uncomfortable for a lot of that time due to hip pain. Furthermore, he was unable to lift or carry more than 10 pounds. Dr. S.E. found that the Veteran would need to miss work or leave early three or more days a month due to pain and limitations from his mental health symptoms and hip pain. Additionally, Dr. S.E. noted that the Veteran required an additional break per day from a normally scheduled morning, lunch, and afternoon break so that he could lie down, recline, stretch, etc. and for more than three days per month, he would not be able to stay focused for at least seven hours of an eight hour workday due to his mental health symptoms, hip pain, and the extra break. Finally, due to constant pain and depression, the Veteran often had difficulty concentrating and staying focused as well as sleeping poorly at night. In this case, the reflects that the Veteran suffered from service-connected disabilities which hindered his ability to maintain gainful employment. The evidence of record reflects that the Veteran worked in labor intensive positions and stopped working because he was potentially fired for constant absenteeism caused by his service-connected disabilities or because his service-connected disabilities prevented him from properly executing the job responsibilities. His bilateral hip pain causes limitation of motion and pain, preventing him from standing, walking, sitting, or sleeping comfortably. The Veteran's depressive disorder manifests as impairment of memory, attention, concentration, and focus. As such, the Board finds that his service-connected hip and mental disorders would prevent the Veteran from maintaining gainful employment in a laborious position suitable for one with the Veteran's experiences. Additionally, the evidence shows that the Veteran would have issues in a sedentary position because his physical and mental disabilities would hinder him from sitting comfortably and caused issues with memory and focus. As such, when resolving reasonable doubt in favor of the Veteran, the Board finds that his service-connected disabilities prevented him from being able to secure or follow a substantially gainful occupation for the entire period on appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.