Citation Nr: 21064579 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 00-06 272 DATE: October 20, 2021 ORDER An initial rating of 60 percent, but no higher, for lumbar spine degenerative joint disease and degenerative disc disease with sciatic radiculopathy under Diagnostic Code (DC) 5293, is granted. An initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. An initial rating in excess of 10 percent for right hip limitation of motion in extension for the appeal period prior to July 29, 2021, and for a compensable rating, thereafter, is denied. A separate, compensable rating for limitation of motion in flexion of the right hip is denied. A compensable rating for right hip limitation of motion in abduction for the appeal period prior to July 29, 2021, and in excess of 20 percent thereafter is denied. A separate 10 percent rating for right hip limitation of motion in adduction for the appeal period from September 17, 2010 to July 28, 2021 is granted. For the appeal period beginning May 29, 2008, entitlement to a total disability rating on the basis of individual unemployability (TDIU) based solely on the service-connected lumbar spine disability with sciatic radiculopathy is granted. For the appeal period beginning May 29, 2008, entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) is granted. FINDINGS OF FACT 1. Throughout the entire rating period on appeal, the Veteran's lumbar spine disability has been more likely than not regarded as pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 2. The assignment of an initial 60 percent disability rating for the Veteran's lumbar spine disability under Diagnostic Code 5293 is more favorable to the Veteran than a 40 percent rating for the lumbar spine based on limitation of motion of the spine combined with a 10 percent rating, or a 20 percent rating for right lower extremity radiculopathy. 3. During the pendency of the appeal, the evidence has demonstrated right lower extremity radiculopathy which, at worst, rises to the level of moderate incomplete paralysis of the sciatic nerve. 4. The Veteran's right hip disability first manifested limitation of motion in extension limited to 5 degrees or less on July 29, 2021, but no sooner. 5. Throughout the rating period on appeal, the Veteran's right hip flexion was limited to, at worst, 70 degrees to include following repetitive use testing and during periods of flare-ups. 6. The Veteran's right hip disability first manifested limitation of abduction lost beyond 10 degrees on July 29, 2021, but no sooner. 7. The Veteran's right hip disability was manifested by limitation of abduction where the legs could not be crossed from September 17, 2010 to July 28, 2021. 8. The Veteran is currently in receipt of a TDIU solely due to her service-connected lumbar spine disability beginning May 2, 2018. 9. Beginning May 29, 2008 (the date the Veteran last worked), the Veteran was unable to secure or follow a substantially gainful occupation as a result of her service-connected lumbar spine disability, which includes sciatic nerve radiculopathy. 10. Beginning May 29, 2008, the Veteran is in receipt of an award of TDIU based on her service-connected lumbar spine disability and is also in receipt of, at least, a combined 60 percent disability rating for her other service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial 60 percent rating for lumbar spine degenerative joint disease and degenerative disc disease with sciatic radiculopathy are met. 38 U.S.C. §§ 1155, 5107 (1996, 2012); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243 (2018), DCs 5292, 5293 (2002-2003). 2. The criteria for an initial disability rating of 10 percent or greater for right lower extremity radiculopathy are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.71a, DC 5293 (effective prior to September 23, 2002), 4.123, 4.124a, DC 8520 (2002, 2020). 3. The criteria for an initial rating in excess of 10 percent for right hip limitation of motion in extension for the appeal period prior to July 29, 2021, and in excess of 0 percent thereafter are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5251. 4. The criteria for a separate, compensable rating for limitation of motion in flexion of the right hip are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5252. 5. The criteria for a compensable rating for limitation of motion in abduction for the appeal period prior to July 29, 2021, and in excess of 20 percent thereafter is are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5253. 6. The criteria for a separate 10 percent rating for limitation of motion in adduction for the appeal period from September 17, 2010 to July 28, 2021 are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5251. 7. For the appeal period beginning May 29, 2008, the criteria for entitlement to a TDIU based solely on the service-connected lumbar spine disability are met. 38 U.S.C. § 1555; 38 C.F.R. § 4.16. 8. For the appeal period beginning May 29, 2008, the criteria for SMC pursuant to 38 U.S.C. § 1114 (s) are met. 38 U.S.C. § 1114 (s). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to August 1988. This appeal to the Board of Veterans' Appeals (Board) arose from merged appeals of March 1993, September 1997, and January 2011 rating decisions issued by the Department of Veterans Affairs (VA). This appeal has a long procedural history which is briefly summarized below. The issues of entitlement to a higher initial rating for chronic lumbosacral strain and residuals of right hip fracture were appealed and perfected to the Board in June 1993. See April 1993 Notice of Disagreement (NOD); May 1993 Statement of the Case (SOC); June 1993 Substantive Appeal (VA Form 9). During the pendency of the appeal, the Veteran's initial rating for chronic lumbosacral strain was increased to 40 percent, and her rating for residuals of right hip fracture was increased to 10 percent. See October 1996 Rating decision; January 2011 Rating decision. In June 2018, a TDIU was granted effective May 2, 2018. However, the Board notes that this award was based on the Veteran's combined service-connected disabilities. See June 2018 rating decision. The grant of a TDIU based solely on one service-connected disability allows for consideration of entitlement to SMC as discussed in detail below. As such, the Board will consider whether a TDIU is warranted for the entire rating period on appeal, to include based on only one service-connected disability. During the pendency of the appeal, the issue of entitlement to higher initial rating for right lower extremity sciatica was established as a symptom of the Veteran's service-connected chronic lumbosacral strain, which was separately rated and appealed. See January 2011 Rating decision; February 2011 NOD. The appeal has a long history before the Board and the United States Court of Appeals for Veterans Claims (CAVC). See August 2011 Board decision, August 2012 CAVC decision; May 2013 Board remand; November 2017 Board remand decision; and December 2019 Board remand decision. In March 2021, the Regional Office (RO) denied the Veteran's claims in a Supplemental Statement of the Case. The appeal is now back before the Board. The Veteran also testified before a Veterans Law Judge (VLJ) in October 2008. The VLJ who held the October 2008 hearing retired from the Board. The Veteran was notified and offered the opportunity to have a new hearing on the issues on appeal, but declined. See July 2017 Hearing-related notice; August 2017 Correspondence from the Veteran; January 2019 Correspondence from the representative. Disability Ratings Laws and Regulations Disability evaluations 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 his 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Lumbar Spine Disability The Veteran's lumbar spine disability has been rated pursuant to DC 5293 as intervertebral disc disease of the thoracolumbar spine (IVDS), as in effect prior to September 23, 2002. In this regard, and during the appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4, including the rating criteria for evaluating lumbar spine disabilities. When regulations are revised during an appeal, the Board is generally required to consider the claim under both the former and revised schedular criteria and to apply the more favorable regulation. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application (which it does not here). VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Board will consider the claim under the pre-amended rating criteria for the entire appeal period, and the new criteria from the effective dates of the revisions. The criteria are explained here. Under the criteria in effective prior to September 23, 2002 (the old criteria), limitation of motion of the lumbar spine which was slight, moderate, and severe, warranted a rating of 10, 20, and 40 percent, respectively. 38 C.F.R. § 4.71a, DC 5292 (2002). Under the old criteria, mild intervertebral syndrome (IVDS) warranted a 10 percent rating. Moderate IVDS with recurring attacks warranted a 20 percent rating. Severe IVDS with recurring attacks and intermittent relief warranted a 40 percent rating. A 60 percent evaluation was warranted when there was pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2002). Under the old rating criteria, slight subjective symptoms only of lumbosacral strain were assigned a noncompensable rating. A 10 percent rating required evidence of characteristic pain on motion. A 20 percent rating was assigned for lumbosacral strain with muscle spasm on extreme forward bending or loss of lateral spine motion. Severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion was to be assigned a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). The regulations regarding IVDS were revised effective September 23, 2002. As of that date, IVDS (still rated under Diagnostic Code 5293) was to be evaluated by one of two alternative methods: based on total duration of incapacitating episodes over the previous 12 months, or, alternatively, by combining under 38 C.F.R. § 4.25 separate ratings for its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method resulted in the higher rating. Under these revised standards, IVDS warrants a 40 percent evaluation when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5293 (2003). An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Id. Note (1). After another revision (effective September 26, 2003), the criteria for rating all spine disabilities, to include IVDS, are now set forth in a General Rating Formula for Diseases and Injuries of the Spine (General Formula). The revised criteria provide that IVDS is to be evaluated either under the General Formula (to include consideration of separate rating for orthopedic and neurological manifestations) or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Formula provides a 40 percent where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The criteria under the General Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. See id. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was again amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. The Board finds that the Veteran's lumbar spine disability more nearly approximates pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, consistent with a 60 percent rating under DC 5293. In this regard, the Veteran has been diagnosed with various spine disabilities throughout the rating period, including discogenic lumbar spondylosis (see October 1992 VA examination report), degenerative disc disease (see July 2015 VA MRI report), spinal stenosis, lumbar anterolisthesis, lumbar strain, and degenerative joint disease at L5-S1). See e. g., July 2021 VA examination report. Moreover, the evidence throughout the rating period shows that the Veteran has also been diagnosed with radiculopathy of the right lower extremity and muscle spasms. See e. g., October 1992 VA examination report (Veteran reported radiating back pain to the right leg on a "daily basis"); see also September 2010 VA examination (noting leg and foot weakness, muscle spasms, and severe pain); see January 2015 VA examination (noting constant pain that was sharp and radiated to the right hip and leg); see also June 2015 VA examination (indicating that the Veteran had muscle spasms and radiating pain to the right lower extremity); May 2018 VA examination (noting that the Veteran had "severe" daily pain made worse with activities such as standing or walking); see also July 2021 VA examination (Veteran was found to have muscle spasms, inability to stand upright, and "constant" throbbing and pain in lower back and down right leg). Given these symptoms, the Board finds that the Veteran's lumbar spine disability more nearly approximate the pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm. Resolving reasonable doubt in the Veteran's favor, the Board finds that a 60 percent rating is warranted under DC 5293 for the entire rating period on appeal. Pursuant to the Board's decision herein, the Veteran's 60 percent rating is the highest schedular rating under the old criteria and revised criteria for IVDS. There is no other DC under the pre-September 2002 rating criteria which would allow for a higher rating. The only former diagnostic codes that provide a rating higher than 60 percent for the spine require residuals of a vertebral fracture with cord involvement (DC 5285) or unfavorable ankylosis of the entire spine (DC 5286). Here, however, the evidence does not show vertebral fracture or spinal ankylosis. Although the Veteran's thoracolumbar spine is limited in motion, there is no evidence showing it is fixed in place. Therefore, a rating higher than 60 percent is not warranted under the former rating criteria prior to September 23, 2002. Similarly, under the current criteria, a rating higher than 60 percent is not warranted. Under the revised IVDS criteria, 60 percent is the highest available rating. Under the General Formula, a rating higher than 60 percent is only available for unfavorable ankylosis of the entire spine, which has not been demonstrated here. Moreover, as noted above, the Board is unable to assign a higher rating under the provisions of Deluca v. Brown, 8 Vet. App. 2002 and See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); because the 60 percent rating assigned exceeds the maximum rating for limitation of motion (40 percent). Johnston v. Brown, 10 Vet. App. 80, 85 (1997). See e. g., January 2015, June 2015, July 2021 VA spine examination reports. The Board acknowledges that service connection has been awarded for right lower extremity radiculopathy and that the disability rating of 10 percent has been assigned under DC 8520. 38 C.F.R. § 4.124a, DC 8520. Separate or higher disability ratings, however, cannot be assigned for this neurologic impairment under DC 8520 in conjunction with the 60 percent disability rating under the pre-September 2002 version of DC 5293 because, in this case, such an assignment would clearly violate the rule against pyramiding. In Bierman v. Brown, 6 Vet. App. 125 (1994), the United States Court of Appeals for Veteran Claims (Court) noted that manifestations of neurological symptoms of a lower extremity disability which are wholly distinct from the orthopedic effects of IVDS (that is, neither duplicative nor overlapping) could be rated under a diagnostic code different from DC 5293 without violating the VA anti-pyramiding regulation of 38 C.F.R. § 4.14 ; see also Esteban v. Brown, 6 Vet. App. 259 (1994). Here, the Board finds that the symptoms and functional impairment resulting from the Veteran's IVDS significantly encompasses the symptoms and functional impairment resulting from his neurological symptoms (radiating leg pain and reduced lower extremity sensation). A separate rating under DC 8520 for the Veteran's lower extremity neurological symptoms therefore would constitute pyramiding and cannot be assigned. See id. That notwithstanding, the Board will not disrupt the currently assigned 10 percent rating as established by the RO. The Board further finds that the 60 percent rating assigned herein is more advantageous to the Veteran than the previously awarded 40 percent rating for the spine and a separate 10 percent rating for right lower extremity radiculopathy. The Board notes that VA spine examination reports of record reflect that the Veteran had, at worst, moderate right lower extremity sensory deficitsi.e., clinical findings that warrant a 20 percent disabling rating under the provisions of Diagnostic Code 8520. 38 C.F.R. § 4.124a, Diagnostic Code 8520. See e. g., January 2015, June 2015, July 2021 VA examination reports. The 60 percent rating for intervertebral disc syndrome, however, continues to be more advantageous than a 40 percent rating for limitation of motion of the thoracolumbar spine combined with a rating of 20 or 10 percent for either mild or moderate right lower extremity radiculopathy. The record does not support an even higher award of 40 percent for the right lower extremity radiculopathy, as at no point has the evidence demonstrated moderately severe incomplete paralysis. In summary, the Board has considered the many different permutations of ratings available to fairly rate the Veteran's orthopedic and neurological symptoms and to consider the old and revised lumbar spine and IVDS criteria. In conclusion, the Board finds that the highest possible rating that may be assigned for the orthopedic and neurological manifestations of the Veteran's service-connected lumbar spine disability is the 60 percent rating under the old criteria for IVDS (DC 5293). Right Hip Disability In a January 2011 rating decision, the Veteran was awarded a 10 percent rating for residuals of a right hip stress fracture for the entire appeal period beginning February 11, 1992. Although the corresponding rating codesheet indicates that the 10 percent rating was awarded under DC 5252 (for limitation of motion in flexion), the rating narrative indicates that the 10 percent rating was assigned for limitation of motion in extension (i. e., DC 5251) based on a September 2010 VA examination report. Thereafter, in an August 2021 rating decision, the RO granted a 20 percent rating for right hip limitation of motion in abduction for the appeal period beginning July 29, 2021. The RO also granted service connection for right hip limitation of motion in extension and assigned a 0 percent evaluation effective July 29, 2021. Additionally, a noncompensable (0 percent rating) was assigned effective July 29, 2021 for right hip limitation of motion in flexion. To the extent that the August 2021 rating decision decreased the Veteran's rating from 10 percent to 0 percent, effective July 29, 2021 for limitation of motion of the thigh, the Board notes that the RO did not effectuate a reduction. The assignment of this staged rating did not decrease the Veteran's total combined disability rating at any point during the appellate period. Accordingly, the rules and regulations governing rating reductions are not for application. See O'Connell v. Nicholson, 21 Vet. App. 89, 92-94 (2007); see also Tatum v. Shinseki, 24 Vet. App. 139, 144 (2010). Although the January 2011 rating decision codesheet listed the wrong DC for the Veteran's limitation of motion of the hip (i. e., flexion (DC 5252) instead of extension (DC5251)), the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Board will first address the relevant rating criteria and medical evidence of record and then will discuss the appropriate Diagnostic Codes pertaining to the Veteran's right hip disabilities. Hip disabilities are rated under Diagnostic Codes 5250 to 5255. Diagnostic Code 5250, ankylosis of the hip is rated from 60 percent to 90 percent, depending on whether in favorable or unfavorable positions. Notably, ankylosis means the joint is fixed in place without ability to be moved at all. Under Diagnostic Code 5251, a 10 percent disability rating is warranted when extension of the thigh is limited to 5 degrees. Under Diagnostic Code 5252, a 10 percent disability rating is warranted when flexion of the thigh is limited to 45 degrees, and a 20 percent disability rating is warranted when flexion is limited to 30 degrees. For reference, normal range of motion of the hip is from 0 to 125 degrees, and normal abduction of the hip is from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of the affected leg such that the leg cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction such that the legs cannot be crossed. A maximum 20 percent rating is warranted for limitation of abduction such that motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Diagnostic Codes 5254 and 5255 are appropriate when there is flail joint or impairment of the femur. However, as discussed above, the Veteran has not been found to have fracture, malunion, or nonunion of the femur. She has also not been diagnosed with a flail hip joint. As such, these Diagnostic Codes are not for application. The evidence includes a March 1992 VA examination where the Veteran was seen for both hip and low back pain. At that time, flexion of the right hip was noted to be restricted to 90 degrees. No other range of motion testing of the hip was noted. During a July 1999 VA joints examination report, the Veteran denied any problems with her right hip. However, range of motion testing showed flexion of the right hip limited to 70 degrees. Rotation was to 30 degrees and external rotation was to 20 degrees. In a September 17, 2010 VA examination, the Veteran reported continual pain in the right hip. During flare-ups, she reported that her hip "locks up" and required several minutes for the joint to move again. Range of motion testing (after repetitive motion) showed flexion to 70 degrees with extension to 0 degrees. Abduction was limited to 30 degrees, but the examiner noted that the Veteran could not cross her right leg over her left leg. The Veteran was able to toe-out more than 15 degrees. The Veteran was afforded another VA examination in January 2015. At that time, she reported pain and achiness in the right hip, at worst with sharp pain at a 10/10. The Veteran indicated that she had received some steroid injections and had variable pain which limited her walking, sitting, and standing. No specific flare-ups were reported. Range of motion testing (after 3 repetitions) showed flexion limited to 115 degrees, with normal extension. Abduction was limited to 30 degrees and adduction was limited to 20 degrees. The examiner noted that adduction was not so limited that the Veteran could not cross her legs. External rotation was to 40 degrees and internal rotation was limited to 30 degrees. During a May 2018 VA examination, the Veteran reported having pain to the posterior portion of the hip in the buttock. No specific flare-ups were reported. Range of motion testing showed flexion limited to 120 degrees, with normal extension. Abduction was limited to 40 degrees and adduction was limited to 20 degrees. The examiner noted that adduction was not so limited that the Veteran could not cross her legs. External rotation was to 20 degrees and internal rotation was limited to 15 degrees. Repetitive use testing was not conducted. Pursuant to the Board's most recent remand, the Veteran underwent another VA hip examination in July 2021. During the evaluation, the Veteran reported having sharp, throbbing pain in the right hip with some locking. Flare-ups were noted to occur 3-4 times a month and were noted as "moderate." At its worst (i. e., during flare-ups), the examiner noted that the Veteran's right hip would be limited to 80 degrees in flexion, and to 10 degrees in extension. Abduction was limited to 10 degrees, and adduction to 5 degrees. External rotation was to 20 degrees and internal rotation was limited to 10 degrees. The Veteran's limitation in adduction prevented her from crossing her legs. Limitation of Motion in Extension Upon review of the evidence of record, the Board finds that the Veteran's initial 10 percent rating (assigned for the appeal period prior to July 29, 2021) is more appropriately consistent with DC 5251 for limitation of motion in extension. The Board finds that, an initial rating in excess of 10 percent for right hip limitation of motion in extension for the appeal period prior to July 29, 2021, and in excess of 0 percent thereafter is denied. In this regard, the Veteran's initial 10 percent rating was assigned based on the September 2011 VA examination, which found that the Veteran had right hip extension limited to 0 degrees. This rating has been in effect since February 1992 and is the maximum rating permitted under DC 5251. Moreover, the noncompensable rating assigned beginning July 29, 2021 for limitation of motion in extension is also appropriate. As indicated by the 2021 VA examiner, the Veteran extension was limited to 10 degrees, to include during repetitive use and during periods of flare-ups. Limitation of Motion in Flexion The Board next finds that a separate, compensable rating for limitation of motion in flexion of the right hip or thigh is not warranted throughout the rating period on appeal. The VA examinations discussed above do not show that the Veteran's flexion of the thigh was limited to a compensable degree (i. e., to 45 degrees or less), to include following repetitive use or during periods of flare-ups. See e. g., January 2015, May 2018, and August 2021 VA examination reports. VA treatment records have also been reviewed but do not show flexion of the thigh or hip limited to 45 degrees or less. As such, a separate compensable rating for limitation of motion in flexion is not warranted. Limitation of Motion in Abduction, Adduction, and Rotation As noted above, the Veteran has been awarded a separate 20 percent rating for limitation of the right thigh in abduction (i. e., motion lost beyond 10 degrees) for the appeal period beginning July 29, 2021. This is the maximum rating permitted under DC 5253; as such, a higher rating is not warranted under this code for the appeal period prior to July 29, 2021. Moreover, the evidence of record prior to July 29, 2021 does not indicate that the Veteran's right thigh abduction was lost beyond 10 degrees. See May 2018, January 2015, and September 2010 (showing, at worst, abduction limited to 30 degrees). As such, the Board finds that a rating for limitation of motion in abduction is not warranted for the appeal period prior to July 29, 2021. That notwithstanding, the Board finds that a separate 10 percent rating is warranted for limitation of motion in adduction for the appeal period from September 17, 2010 to July 28, 2021. The September 2010 VA examination report indicated that the Veteran could not cross her right leg over her left leg. As such, a 10 percent rating under DC 5253 is warranted for the appeal period from September 17, 2010 to July 28, 2021. The Board notes that, although separate ratings may be assigned under DC's 5251, 5252, and 5253, separate ratings for abduction, adduction, and/or rotation may not be assigned during the same appeal period, as these are all evaluated under the same diagnostic code, DC 5253. Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). For these reasons, the Board finds that (1) an initial rating in excess of 10 percent for right hip limitation of motion in extension for the appeal period prior to July 29, 2021, and in excess of 0 percent thereafter is denied; (2) a separate, compensable rating for limitation of motion in flexion of the right hip or thigh is denied; (3) a rating for in excess of 20 percent for limitation of motion in abduction is not warranted for the appeal period beginning July 29, 2021; and (4) a separate 10 percent rating is warranted for limitation of motion in adduction for the appeal period from September 17, 2010 to July 28, 2021. TDIU The Board notes that, although the Veteran has already been awarded a TDIU effective May 2, 2018, this award was based on the Veteran's combined service-connected disabilities. See June 2018 rating decision. The grant of a TDIU based solely on one service-connected disability allows for consideration of entitlement to SMC as discussed in detail below; as such, the Board finds that a TDIU based solely on the lumbar spine disability will replace the current award of a TDIU based on multiple service-connected disabilities. A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Board notes that the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to" the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In her December 2019 TDIU application (VA Form 21-8940), the Veteran reported that she last worked on May 28, 2008 as a probation officer. She reported completing 4 years of high school education and 4 years of college. Accordingly, the Board will only consider whether entitlement to a TDIU is warranted for the period beginning May 29, 2008 (date the Veteran last worked). The evidence includes a January 2015 VA spine examination report. At that time, the examiner specifically indicated that the Veteran's spine disability and radiculopathy symptoms would impact her ability to work. In this regard, it was noted that the Veteran's back pain limited her ability to bend down, stand for more than 5 minutes, sit for more than 15 minutes, walk more than 10 minutes, or lift more than 2 pounds. In a September 2010 VA examination, the examiner indicated that, when the Veteran's back pain was severe (i.e., during flare-up), the Veteran could not "do anything beyond self-care." During the October 2008 Board hearing, the Veteran stated that, due to her back pain, she was unable to perform physical labor, stand, or sit for prolonged periods of time. She also reported some difficulty driving due to radiating pain in the leg. See id at pgs. 24-26. Based on this evidence, in addition to the Veteran's work history and educational level, and resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is warranted for the rating period in appeal, based solely on her service-connected lumbar spine disability with radiculopathy from May 29, 2008. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. SMC The Court has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 V et. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC" benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises, or if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. The Court has held that although a TDIU may satisfy the "rated as total" element of section 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In this case, the Board notes that as a result of this decision, a TDIU solely due to the service-connected lumbar spine disability has been granted. Thus, for SMC purposes, this disability satisfied the requirement of a "service-connected disability rated as total." See Buie, 24 Vet. App. 251; see also Bradley, 22 Vet. App. 293. Because the Veteran now has a single service-connected disability rated as total (i. e., her TDIU due solely to service-connected lumbar spine disability), and has additional service-connected disabilities that are independently rated as at least 60 percent disabling, the criteria for SMC at the housebound rate have been met. (Continued on the next page) For these reasons and considering the Court's decisions in Bradley and in Buie, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114 (s) is granted beginning May 29, 2008 (the date of the award of a TDIU). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.