Citation Nr: 21070331 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-22 331 DATE: November 23, 2021 ORDER Entitlement to an increased rating in excess of 50 percent for service-connected degenerative arthritis, strain, trochanteric bursitis, and status-post total hip arthoplasty (right hip disability) is denied. Entitlement to an increased rating in excess of 30 percent for service-connected degenerative arthritis, strain, trochanteric bursitis, and status-post total hip arthoplasty (left hip disability) is denied. Entitlement to a separate compensable disability rating for leg length discrepancy is denied. Entitlement to a total disability rating due to individual unemployability based on service-connected disability (TDIU) is granted. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is denied. FINDINGS OF FACT 1. The Veteran's right hip disability was not manifested by markedly severe residuals of weakness, pain, or limitation of motion. 2. The Veteran's left hip disability was not manifested by moderately severe residuals of weakness, pain, or limitation of motion. 3. The Veteran's legs have been reported as unequal in length, but not at or exceeding 3.2 centimeters of difference. 4. The Veteran is precluded from gaining or maintaining substantially gainful employment due to his service-connected disabilities. 5. The Veteran was not, as the result of service-connected disabilities, with such significant disabilities as to need regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for a right hip disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5054. 2. The criteria for a rating in excess of 30 percent for a left hip disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5054. 3. The criteria for a separate compensable rating for leg length discrepancy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.59, 4.71a, DC 5275 4. Resolving all doubt in the Veteran's favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25, 4.26. 5. The criteria for SMC based on the need for aid & attendance or housebound status have not been met. 38 U.S.C. §§ 1114(l), 5121; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably with the United States Air Force from October 1976 to May 1997. This matter was previously adjudicated by the Board of Veterans' Appeals (Board) in a May 2019 decision. In that decision, the Board denied the Veteran's claim for a rating in excess of 50 percent for his right hip disability and in excess of 30 percent for his left hip disability. The Board reasoned that the Veteran's disabilities had not reached a severity that would require an increased rating. The Veteran appealed the Board's May 2019 decision to the United States Court of Appeals for Veterans Claims. There, the Court vacated and remanded the May 2019 decision on the grounds that the Board: (1) failed to address why the Veteran was denied a 70 percent rating for his right hip disability under the criteria of markedly severe pursuant to DC 5054; (2) failed to address why the Veteran was denied a 50 percent rating for his left hip disability under the criteria of moderately severe pursuant to DC 5054; and (3) failed to address the Veteran's explicit request for TDIU eligibility. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. By way of background, a December 1997 rating decision awarded service connection for the Veteran's bilateral hips and assigned a 10 percent rating effective June 1, 1997 under DC 5003. A December 2011 rating decision assigned 10 percent ratings for the right hip and left hip under DC 5252 effective March 28, 2011. In October 2018, a rating decision increased the ratings for his right and left hip disabilities to 30 percent pursuant to DC 5054 effective March 28, 2011. Therefore, the current appeal period before the Board begins on March 28, 2011, the date VA received the Veteran's increased rating claim, which includes a one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran underwent a right hip replacement in 2004 and a left hip replacement in 2007, which is prior to the appeal period. As a result, 38 C.F.R. § 4.71a, DC 5054 is applicable, which rates hip replacement (prosthesis) with prosthetic replacement of the head of the femur or of the acetabulum. Therefore, the Board considers whether a rating in excess of 50 percent for his right hip and 30 percent for his left hip is warranted in this case. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select DCs "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. Review of the portion of the rating schedule that addresses the musculoskeletal system revised effective February 7, 2021 shows that DC 5054 was changed, particularly only for the 30 percent and 100 percent disability ratings. Prior to the regulatory change, DC 5054 provides that upon having undergone prosthetic replacement of the head of the femur or acetabulum, the following: 100 percent rating is warranted for one year following the implantation of prothesis; 90 percent rating and special monthly compensation is warranted following implantation of prothesis with painful motion or weakness such as to require the use of crutches; 70 percent rating may be assigned for markedly severe residual weakness, pain or limitation of motion following implantation of prothesis; 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion; and 30 percent is warranted as the minimum rating. As of February 7, 2021, under the amended criteria, DC 5054 provides that upon having undergone prosthetic replacement of the head of the femur or of the acetabulum, the following: 100 percent rating for four months following implantation of prosthesis or resurfacing; 90 percent rating and special monthly compensation is warranted following implantation of prothesis with painful motion or weakness such as to require the use of crutches; 70 percent rating may be assigned for markedly severe residual weakness, pain, or limitation of motion following implantation of prothesis; 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion; and 30 percent is warranted as the minimum evaluation, total replacement only. The terms "markedly severe" and "moderately severe" to establish 50 percent and 70 percent ratings are not defined in the above criteria. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Board notes that the change in 30 percent under the old criteria and new criteria only involve additional language under the new criteria noted in italics that a "30 percent is warranted as the minimum evaluation, total replacement only." Given that the Veteran underwent both a left hip and right hip replacement, neither the old nor new criteria offer the Veteran a more favorable finding. Therefore, the Board will continue the analysis pursuant to the new criteria of DC 5054. 1. Entitlement to an increase in ratings in excess of 50 percent for service-connected degenerative joint disease of the right hip The Veteran contends that his service-connected right hip disability warrants higher ratings. To begin, the Veteran presented for VA examinations in November 2011, May 2014, and October 2018. However, the October 2018 VA examination is the only examination that is compliant with the requirements set forth by Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Therefore, only the October 2018 VA examination will be discussed in order to evaluate the Veteran's bilateral hip disabilities based on range of motion, as it is the only adequate examination on record. The Board notes that the prior November 2011 and May 2014 VA examinations show less favorable range of motion findings than those in the October 2018 VA examination and that there is no prejudice to the Veteran in not considering the aforementioned VA examinations to rate his disabilities based on limitation of motion and DeLuca factors. DeLuca v. Brown, 8 Vet. App. 202 (1995). In May 2014, an x-ray taken of the Veteran's right hip revealed no hardware complications and otherwise negative findings. In October 2018, the Veteran was afforded a VA examination. There, the Veteran reported that his symptoms initially improved but began to develop the same symptoms he had prior to surgery. The Veteran indicated that his symptoms, such as stiffness, occur often when walking long distances and when sitting for long periods. In his right hip, the Veteran reported flareups with stiffness and pain, pain in the groin area, and noted that his right hip locks up with prolonged sitting. The Veteran had a flexion of 0 to 90 degrees, extension of 0 to 10 degrees, abduction of 0 to 25 degrees, adduction of 0 to 15 degrees, external rotation of 0 to 50 degrees, and internal rotation of 0 to 35 degrees. The VA examiner indicated that the Veteran's abnormal range of motion contributes to difficulty with prolonged walking downstairs and standing. The Veteran had pain with weight bearing, pain on non-weight bearing testing of the right hip, objective evidence of pain on passive range of motion testing on the right hip, had no objective evidence of crepitus, and his adduction was not limited to the point where he could not cross legs. On range of motion, the Veteran exhibited pain on flexion, extension, abduction, external rotation, and internal rotation. He had moderate tenderness in the anterior joint and trochanteric bursa. The VA examiner indicated that the examination was conducted during a flareup and noted that pain, weakness, fatigability, or incoordination significantly limit functional ability of the right hip with flareups due to pain. In terms of the impact of flareups on range of motion, the VA examiner noted that it would require resorting to mere speculation, as the Veteran indicated that the degree of limitation varies. The VA examiner noted that the Veteran has less movement than normal, has interference with sitting, and interference with standing. The Veteran had no muscle atrophy, no ankylosis, did not use an assistive device, and had full 5/5 muscle strength in flexion, extension, and abduction in his right hip. A leg length discrepancy was noted, as the right leg was 102 cm, and the left leg was 101 cm. The VA examiner indicated that the Veteran has moderately severe residuals of weakness, pain, or limitation of motion in his right hip. When asked as to the Veteran's functional impact in his ability to perform any type of occupational tasks, the VA examiner opined that the Veteran's bilateral hip conditions cause difficulty with prolonged sitting, prolonged standing, and going downstairs. After reviewing the relevant medical and lay evidence of record, the Board finds that the preponderance of the evidence weighs against a rating in excess of 50 percent for the right hip pursuant to DC 5054. While the Board notes the Veteran's representative's suggested definition for moderate according to the American Heritage Dictionary as "within reasonable limits; not excessive or extreme" and marked as "clearly defined and evident; noticeable", as previously mentioned above, the terms "markedly severe" and "moderately severe" are not defined and rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The next higher, 70 percent rating for the right hip disability requires markedly severe residual weakness, pain, or limitation of motion. Here, the most supportive evidence of the Veteran's contention that his right hip disability should be found in excess of a 50 percent rating is his range of motion in extension for his right hip. As mentioned above, his range of motion in extension was 0 to 10 degrees out of 30 degrees. However, the Board finds compelling that his range of motion was unchanged after three repetitions even though the examination was conducted during flareups. In addition, the Veteran had full 5/5 strength in extension. Taking into consideration that his range of motion in extension was unchanged after three repetitions and had full 5/5 strength despite flareups, it appears that even the most favorable evidence seems to suggest that his symptomatology was moderately severe in nature. Continuing forward, while the Veteran had limitation of motion in all directions as well as pain in all directions aside from adduction, the evidence resembles symptomatology that were moderately severe in nature. In the remaining areas for his right hip, the Veteran had at least 50 percent or more range of motion for flexion, abduction, adduction, external rotation, and internal rotation. His range of motion after three repetitions did not change in most areas, as he was only reduced in flexion by 10 degrees (from 0-90 to 0-80 degrees) and for adduction by 5 degrees (from 0-20 to 0-15 degrees). Even then, his range of motion in flexion and adduction after three repetitions were still at 50 percent. Even though the Veteran indicates that he began to develop the same symptoms he had prior to surgery, the findings noted by the VA examiner suggests that the Veteran's right hip disability were moderately severe in nature as opposed to markedly severe. The VA examiner indicated that the Veteran had moderate tenderness in the anterior joint and trochanteric bursa. Despite the fact that the VA examiner had the option to describe the Veteran's residuals to be markedly severe, the VA examiner indicated that the Veteran's residuals were moderately severe for weakness, pain, or limitation of motion following implantation of prosthesis. While not dispositive, this certainly does not support an evaluation in excess of 50 percent. Most notably, the Veteran did not require the use of an assistive device, did not have ankylosis, did not have crepitus, and had full 5/5 strength in his right hip, which supports the finding that his right hip condition is not markedly severe. Therefore, the Board finds that the evidence preponderates against such a finding that the Veteran had markedly severe residual weakness, pain, or limitation of motion. In reaching this finding, the Board has considered the Veteran's lay assertions. However, the Veteran is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the VA examiner who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the VA examination reports and the clinical records) directly address the criteria under which his disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. Finally, the Board has considered whether higher or separate ratings are warranted under alternate DCs pertaining to the right hip disability. However, there is no indication of ankylosis, flail joint, or impairment of the femur at any point during the period on appeal. Subsequently, ratings under DCs 5250, 5254, and 5255 are not applicable. Moreover, the Veteran is already compensated for pain and limitation of motion under DC 5054 and to award a separate rating under DCs 5003, 5251, 5252, or 5253 based on those symptoms and functional impairments caused by those symptoms would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. Thus, separate ratings under DCs 5003, 5251, 5252, or 5253 are not warranted. 2. Entitlement to an increase in ratings in excess of 30 percent for service-connected degenerative joint disease of the left hip The Veteran contends that his service-connected left hip disability warrants higher ratings. In May 2014, an x-ray taken of the Veteran's left hip revealed no complications and otherwise negative findings. As mentioned above, only the Veteran's October 2018 VA examination will be evaluated. At the October 2018 VA examination, the Veteran had a flexion of 0 to 100 degrees, extension of 0 to 15 degrees, abduction of 0 to 45 degrees, adduction of 0 to 25 degrees, external rotation of 0 to 60 degrees, and internal rotation of 0 to 40 degrees in his left hip. The VA examiner indicated that the Veteran's abnormal range of motion contributed to difficulties with prolonged walking and standing. The Veteran did not have additional loss of function or range of motion after three repetitions in his left hip. The Veteran had no evidence of pain with weight bearing, pain on non-weight bearing testing of the left hip, objective evidence of pain on passive range of motion testing on the left hip, had no objective evidence of crepitus, and his adduction was not limited to the point where he could not cross legs. On range of motion, the Veteran exhibited pain on flexion and adduction. He had mild tenderness in the anterior joint and trochanteric bursa. The VA examiner indicated that the examination was conducting during a flareup and noted that pain, weakness, fatigability, or incoordination significantly limit functional ability of the left hip with flareups due to pain. In terms of the impact of flareups on range of motion, the VA examiner noted that it would require resorting to mere speculation, as the Veteran indicated that the degree of limitation varies. The VA examiner noted that the Veteran has less movement than normal. The Veteran did not have muscle atrophy, had no ankylosis, did not use an assistive device, and had full 5/5 muscle strength in flexion, extension, and abduction. As noted above, the Veteran had a leg length discrepancy with a difference in length of 1 cm. The VA examiner indicated that the Veteran has a mild pain severe residuals of weakness, pain, or limitation of motion. After reviewing the relevant medical and lay evidence of record, the Board finds that the preponderance of the evidence weighs against a rating in excess of 30 percent for the left hip per DC 5054. As already indicated, the next higher, 50 percent rating for the left hip disability requires moderately severe residual weakness, pain, or limitation of motion. The Board takes note of the Veteran's representative's suggested definition for moderate as "within reasonable limits; not excessive or extreme" according to the American Heritage Dictionary. As previously mentioned above, the term "moderately severe" is not defined and rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The next higher 50 percent rating for the left hip disability requires moderately severe residual weakness, pain, or limitation of motion. Here, the most favorable evidence to support a higher rating is the Veteran's extension, which was 0 to 15 degrees out of 30 degrees. However, even though the examination was conducted during flareups, he did not exhibit pain during range of motion for extension and his range of motion was unchanged after three repetitions. Further, the Veteran had full 5/5 strength in extension. Taking into consideration of the aforementioned findings, it appears that even the most favorable evidence seems to suggest that his symptomatology was not moderately severe in nature. Continuing forward, aside from extension, the only limited range of motion the Veteran had in his left hip was for flexion, which was 0 to 100 degrees out of 125 degrees. The Veteran had full range of motion in abduction, adduction, external rotation, and internal rotation. Moreover, none of the Veteran's range of motion in his left hip changed after three repetitions even though the examination was conducted during flareups. Even though the Veteran indicates that he began to develop the same symptoms he had prior to surgery, the findings noted by the VA examiner suggests that the Veteran's left hip disability resembled symptoms that were not moderately severe. The VA examiner indicated that the Veteran had only mild tenderness in the anterior joint and trochanteric bursa. Despite the fact that the VA examiner had the option to describe the Veteran's residuals to be moderately severe, the VA examiner instead chose to describe the Veteran's residuals to be mild pain. While not dispositive, this certainly does not support an evaluation in excess of 30 percent. Most notably, the Veteran did not require the use of an assistive device, did not have ankylosis, did not have crepitus, and had full 5/5 strength in his left hip, which supports the finding that his left hip condition is not moderately severe. Therefore, the Board finds that the preponderance of the evidence is against findings of moderately severe residual weakness, pain, or limitation of motion. In reaching this finding, the Board has considered the Veteran's lay assertions. However, the Veteran is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. Finally, the Board has considered whether higher or separate ratings are warranted under alternate DCs pertaining to the left hip. However, there is no indication of ankylosis, flail joint, or impairment of the femur at any point during the period on appeal. Subsequently, ratings under DCs 5250, 5254, and 5255 are not applicable. Moreover, the Veteran is already compensated for pain and limitation of motion under DC 5054 and to award a separate rating under DCs 5003, 5251, 5252, or 5253 based on those symptoms and functional impairments caused by those symptoms would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. Thus, separate ratings under DCs 5003, 5251, 5252, or 5253 are not warranted. 3. Entitlement to a separate compensable disability rating for leg length discrepancy. The Veteran contends that he is entitled to a compensable disability for leg length discrepancy pursuant to DC 5275. To warrant a compensable rating under DC 5275, the Veteran's leg length discrepancy would have to manifest as shortening of one lower extremity from 1.25 to 2 inches or 3.2 to 5.1 centimeters. Regarding the Veteran's noncompensable leg length discrepancy disability, the evidence of record does not document a leg discrepancy of at least 3.2 centimeters which is the minimum for a compensable rating under DC 5275. At the October 2018 VA examination, the VA examiner noted a leg length discrepancy of 1 centimeter, measured as the right leg was longer at 102 centimeters and the left leg was 101 centimeters. After reviewing the evidence, both lay and medical, the Veteran's leg length discrepancy disability is documented to be 1 centimeter during the period on appeal. Given that the Veteran's leg length discrepancy does not meet the 3.2 cm threshold in order to be compensable, an initial compensable rating for service-connected leg length discrepancy is not warranted. 4. Entitlement to a TDIU The Veteran has raised the issue of a TDIU during the appeal period in a November 2018 response to the Supplemental Statement of the Case. Total disability ratings for compensation based on 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In order for a veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 361. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a fact found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. The Veteran is service-connected for right hip disability rated as 50 percent disabling and is service-connected for left hip disability rated as 30 percent disabling. These disabilities combine to a 70 percent disability rating. Therefore, the Veteran meets the schedular criteria for a TDIU outlined above. At the outset, the Board notes that a VA Form 21-8940 was sent to the Veteran in December 2018 that was not completed. However, the Veteran submitted a July 2021 TDIU Vocational Assessment Report ( July 2021 VAR ) conducted with a Certified Rehabilitation Counselor (CRC), Z.T.F. There, the Veteran indicated that he: (1) graduated from high school in approximately 1975; (2) obtained a bachelor's degree in computer information systems; and (3) worked as a talent acquisition manager from 2008 until May 2021. Regarding the Veteran's employment as a talent acquisition manager, the July 2021 VAR noted that beginning in April 2019, the Veteran transitioned working part-time at home, as he decreased his hours to approximately 20 hours per week. In particular, he created his own schedule based on the severity of his conditions, altered positions, took breaks, and stretched as needed without repercussions. Moreover, even though the Veteran was considered an employee until May 2021, the Veteran did not perform any work activity from April 2020 and May 2021. CRC ZTF indicated that the period beginning in April 2019 was highly accommodated for the Veteran's service-connected conditions and therefore constituted a sheltered work environment. He reasoned that this type of leniency is generally not permitted in the competitive workforce, which otherwise necessitates adherence to a regular work schedule in addition to strict pace and productivity expectations. CRC ZTF opined that the Veteran was limited to working in this capacity because of his service-connected bilateral hip conditions. He also opined that the Veteran was unable to secure and follow substantially gainful employment since at least April 2019. Finally, CRC ZTF opined that the Veteran is precluded from all occupations in the competitive workforce because of his service-connected bilateral hip disabilities, as he is unable to meet the physical demands of a full range of sedentary exertional level. The Board finds CRC ZTF's opinions that the Veteran's employment beginning in April 2019 was in a sheltered work environment and that he was unable to secure and follow substantially gainful employment since April 2019 to be persuasive and is entitled to significant probative weight. CRC ZTF provided this opinion after he asked the Veteran questions regarding his employment history, asked questions regarding the Veteran's bilateral hip conditions in relation to his ability to work, and provided his opinion based on his experience as a vocational expert. Moreover, CRC ZTF's opinions are consistent with the findings at the October 2018 VA examination. As noted above, when asked as to the Veteran's functional impact in his ability to perform any type of occupational tasks, the VA examiner opined that the Veteran's bilateral hip conditions cause difficulty with prolonged sitting, prolonged standing, and going downstairs. In considering the Veteran's service-connected bilateral hip disabilities and affording him the benefit of the doubt, the Board finds that there is sufficient evidence that the Veteran is unemployable due solely to his service-connected disabilities since April 1, 2019. Therefore, the criteria for a TDIU have been met. 38 C.F.R. §§ 3.340, 3.341, 4.16. 5. Entitlement to special monthly compensation based on the need for regular aid and attendance The Veteran contends that SMC is warranted based on his need for regular aid and attendance. Special monthly compensation (SMC) is payable under 38 U.S.C. § 1114(l) if, as the result of a service-connected disability, the Veteran is so helpless as to be in need of regular aid and attendance of another person or is permanently bedridden. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), criteria for establishing such need include the following factors: (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). The critical question to be determined in this case is whether the Veteran's service-connected disabilities have resulted in the need for regular aid and attendance of another person because of the resultant helplessness due to his physical impairments. Based on a review of the record, the Board concludes that the criteria have not been met. The record does not indicate that the Veteran's service-connected disabilities resulted in the need for regular aid and attendance of another person because of resultant helplessness due to his service-connected physical impairments. There is nothing in the record to show that the Veteran received home health care. The medical records do not establish that the Veteran was permanently bedridden or was otherwise so helpless as to need regular aid and attendance due to his service-connected disabilities. Most notably, as previously discussed above, the record does not indicate that the Veteran required the use of an assistive device in order to ambulate and while he was limited in his range of motion in all directions in his right hip and had some limited range of motion in certain areas in his left hip, the Veteran demonstrated full strength in his bilateral hips. Therefore, the Board finds that the preponderance of the evidence is against finding that the Veteran needed regular aid and attendance due to a service-connected disability. In sum, the Board finds that the Veteran is not, as the result of service-connected disabilities, with such significant disabilities as to need regular aid and attendance. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kim, 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.