Citation Nr: 21071647 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-45 778 DATE: December 1, 2021 ORDER For the initial rating period from July 26, 2016 to September 21, 2021, a higher initial disability rating in excess of 10 percent for right hip limitation of extension is denied. For the initial rating period from July 26, 2016 to September 21, 2021, a higher (compensable) initial disability rating for right hip limitation of flexion is denied. For the initial rating period from September 21, 2021, a higher (compensable) initial disability rating for right hip limitation of extension is denied. For the initial rating period from September 21, 2021, a higher initial disability rating in excess of 10 percent for right hip limitation of flexion is denied. For the entire initial rating period from July 26, 2016, a higher (compensable) initial disability rating for right hip impairment is denied. For the initial rating period from January 3, 2019 forward, a higher initial rating in excess of 20 percent for status post internal fixation C4-5 with fusion C4-5 of the cervical spine and C6-7 diskectomy and fusion (cervical spine disability) is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the entire initial rating period on appeal from July 26, 2016, the right hip femoral acetabular impingement syndrome (right hip disability) has manifested in noncompensable limitation of right thigh flexion and extension with painful motion that does not more nearly approximate right thigh flexion limited to 30 degrees or less, limitation of extension to 5 degrees, impairment of the right thigh in the form of inability to toe-out more than 15 degrees (limitation of rotation), inability to cross legs (limitation of adduction), motion lost beyond 10 degrees of abduction, ankylosis, impairment of the femur, or flail hip joint. 2. For the initial rating period from January 3, 2019 forward, the cervical spine disability has been manifested by flexion greater than 15 degrees without favorable ankylosis of the entire cervical spine, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks but less than six weeks during a 12-month period. 3. For the period from July 26, 2016, the service-connected disabilities have not rendered the Veteran unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. For the initial rating period on appeal from July 26, 2016 to September 21, 2021, the criteria for a higher initial disability rating in excess of 10 percent for right hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5251. 2. For the initial rating period on appeal from July 26, 2016 to September 21, 2021, the criteria for a higher (compensable) initial disability rating for right hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 3. For the initial rating period on appeal from September 21, 2021 forward, the criteria for a higher (compensable) initial disability rating for right hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5251. 4. For the initial rating period on appeal from September 21, 2021 forward, the criteria for a higher initial disability rating in excess of 10 percent for right hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5252. 5. For the entire initial rating period on appeal from July 26, 2016, the criteria for a higher (compensable) initial disability rating for right hip impairment have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5253. 6. For the initial rating period on appeal from January 3, 2019 forward, the criteria for a higher initial disability rating in excess of 20 percent for the cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 7. For the period July 26, 2016, the criteria for a TDIU have been not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 1992 to September 1992 and from June 2007 to June 2008, with various periods of active duty for training service (ACDUTRA) and inactive duty for training service (INACDUTRA) with the U.S. Army National Guard. The issues of higher initial ratings for the right hip disability and cervical spine disability and entitlement to a TDIU were previously before the Board in May 2021, at which time the Board remanded the matters for further VA examinations to be provided. The VA examinations were provided in September 2021, and the matters have now been returned to the Board for appellate adjudication. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 1. Rating right hip limitation of extension from July 26, 2016 to September 21, 2021 2. Rating right hip limitation of flexion from July 26, 2016 to September 21, 2021 3. Rating right hip limitation of extension from September 21, 2021 forward 4. Rating right hip limitation of flexion from September 21, 2021 forward 5. Rating for right hip impairment For the initial rating period on appeal from July 26, 2016 to September 21, 2021, the Veteran is in receipt of an initial 10 percent rating for limitation of right hip extension under Diagnostic Code 5251, a noncompensable (0 percent) rating for limitation of right hip flexion under Diagnostic Code 5252, and a noncompensable (0 percent) rating for right hip limitation of right thigh under Diagnostic Code 5253 (collectively, "right hip disability"). 38 C.F.R. § 4.71a. While the Regional Office (RO) assigned an initial 10 percent rating for right hip limitation of extension under Diagnostic Code 5251 in a February 2017 rating decision on appeal, the reasons and bases analysis in assigning the initial 10 percent rating show that the criteria of Diagnostic Code 5003 were used. Diagnostic Code 5003 provides for a 10 percent rating for a major joint (includes the hip) where there is pain with noncompensable limitation of motion. 38 C.F.R. § 4.71a. Additionally, for the initial rating period on appeal from September 21, 2021 forward, the Veteran is in receipt of an initial (noncompensable) disability rating for limitation of right hip extension under Diagnostic Code 5251, an initial 10 percent rating for limitation of right hip flexion under Diagnostic Code 5252, and a noncompensable (0 percent) rating for right hip limitation of the right thigh under Diagnostic Code 5253. 38 C.F.R. § 4.71a. While the RO assigned an initial 10 percent rating for right hip limitation of flexion under Diagnostic Code 5252 in an October 2021 rating decision on appeal, the reasons and bases analysis in assigning the initial 10 percent rating show again that the criteria of Diagnostic Code 5003 were used. Although it appears that the RO reduced the initial 10 percent rating initially assigned under Diagnostic Code 5251 for the initial rating period from July 26, 2016 to September 21, 2021, to a noncompensable (0 percent) rating for the initial rating period from September 21, 2021 forward, the RO only changed the diagnostic code under which a 10 percent rating under 38 C.F.R. § 4.59 for painful noncompensable limitation of motion was assigned, and the Veteran's rating for the right hip disability was not actually reduced. The evidence in this case shows only noncompensable limitation of right hip/thigh flexion and extension, and does not show impairment of the right thigh; therefore, use of Diagnostic Codes 5251, 5252, and 5253 with the 10 percent rating is not appropriate. As such, the Board has clarified in the instant decision above that the appropriate diagnostic code under which a 10 percent rating under 38 C.F.R. § 4.59 is assigned for painful limitation of motion is Diagnostic Code 5003. The appropriate Diagnostic Codes for rating compensable limitation of motion of the hip and thigh are Diagnostic Codes 5251 through 5253 of 38 C.F.R. § 4.71a. Hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5251 (limitation of extension of the thigh), a 10 percent rating is assigned with extension limited to 5 degrees. Under Diagnostic Code 5252 (limitation of flexion of the thigh), a 10 percent rating is assigned with flexion limited to 45 degrees; a 20 percent rating is assigned with flexion limited to 30 degrees; a 30 percent rating is assigned with flexion limited to 20 degrees; and a 40 percent rating is assigned with flexion limited to 10 degrees. Under Diagnostic Code 5253, pertaining to impairment of the thigh, a 10 percent rating is warranted for limitation of adduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees; a 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. Diagnostic Code 5250 contemplates ankylosis of the hip. Favorable ankylosis in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction warrants a 60 percent rating; intermediate ankylosis warrants a 70 percent rating; and unfavorable ankylosis, which contemplates extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated, warrants a 90 percent rating. Diagnostic Code 5254 provides an 80 percent disability rating where there is a flail joint of the hip. Diagnostic Code 5255 contemplates impairment of the femur. Malunion of the femur warrants a 10 percent rating with slight knee or hip disability, a 20 percent rating with moderate knee or hip disability, and 30 percent rating with marked knee or hip disability. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 per cent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limitation of motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). If the right hip disability does not warrant a compensable rating under the appropriate diagnostic codes based on limitation of motion, the minimum compensable rating (10 percent) may be assigned where there is satisfactory evidence of painful motion. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 1. After a review of all the evidence of record, the Board finds that for the entire initial rating period on appeal from July 26, 2016, the right hip disability has manifested in noncompensable limitation of right thigh flexion and extension with painful motion that does not more nearly approximate right thigh flexion limited to 30 degrees or less, limitation of extension to 5 degrees, impairment of the right thigh in the form of inability to toe-out more than 15 degrees (limitation of rotation), inability to cross legs (limitation of adduction), motion lost beyond 10 degrees of abduction, ankylosis, impairment of the femur, or flail hip joint. Accordingly, the Board finds that for the initial rating period from July 26, 2016 to September 21, 2021, the criteria for a higher initial disability rating in excess of 10 percent for right hip limitation of extension have not been met, and the criteria for a higher (compensable) initial disability rating for right hip limitation of flexion have not been met. Furthermore, the Board finds that for the initial rating period from September 21, 2021 forward, the criteria for a higher (compensable) initial disability rating for right hip limitation of extension have not been met, and the criteria for a higher initial rating in excess of 10 percent for right hip limitation of flexion have not been met. Finally, the Board finds that for the entire initial rating period on appeal from July 26, 2016, the criteria for a higher (compensable) initial rating for right hip impairment of the right thigh have not been met. 38 C.F.R. §§ 4.3, 4.7, 4.71a. A September 2016 VA examination report shows the Veteran reported right hip pain that was aggravated by prolonged sitting, walking, and standing, but denied experiencing episodes of flare ups. Right hip flexion was measured to 90 degrees and extension was measured to 30 degrees with pain noted on examination that does not cause functional loss. The September 2016 VA examination report reflects negative findings for abduction lost beyond 10 degrees, limited adduction that prevents the Veteran from crossing his legs, rotation limited such that the Veteran cannot toe-out more than 15 degrees, ankylosis, impairment of the femur, and a flail hip joint. At another VA examination in January 2019, the Veteran reported increasing right hip pain causing weakness and limited function. The Veteran endorsed episodes of flare ups described as burning, sharp, and shooting pain with overuse of the right hip. Right hip flexion was measure to 90 degrees and extension was measured to 20 degrees with pain noted on examination that causes functional loss. The January 2019 VA examiner noted negative findings for abduction lost beyond 10 degrees, rotation limited such that the Veteran cannot toe-out more than 15 degrees, ankylosis, impairment of the femur, and a flail hip joint, but noted positive findings for limited adduction that prevents the Veteran from crossing his legs. At a VA examination in September 2021, the Veteran reported dull, aching right hip pain, stiffness, occasional popping, and loss of motion, but denied experiencing episodes of flare ups. Range of motion in the right hip was measured to 105 degrees of flexion and extension was measured to 15 degrees with pain noted on examination that causes functional loss. The September 2021 VA examination report reflects negative findings for abduction lost beyond 10 degrees, limited adduction that prevents the Veteran from crossing his legs, rotation limited such that the Veteran cannot toe-out more than 15 degrees, ankylosis, impairment of the femur, and a flail hip joint. The September 2021 VA examiner also noted negative findings for additional functional limitation of the right hip due to pain, fatigue, and/or weakness following repetitive use. Although the January 2019 VA examiner noted positive findings for limited adduction that prevents the Veteran from crossing his legs, the prior September 2016 VA examination report and the subsequent September 2021 VA examination report both contradict the January 2019 VA examiner's findings that there is limited adduction that prevents the Veteran from crossing his legs. See also, December 2018 VA treatment record (full range of motion in the right hip). Because the January 2019 VA examination report contains the only assessment that there is limited adduction that prevents the crossing of legs, and because regular VA and private treatment records do not support right hip limited adduction that prevents the Veteran from crossing his legs, the Board finds that the January 2019 VA examination report's finding is outweighed by the other previous and subsequent evidence of record. The evidence of record shows that right hip/thigh flexion was, at worst, 90 degrees and extension was greater than 5 degrees, without impairment of the right thigh. See also, June 2016 private treatment record; July 2016 private treatment record; December 2017 VA treatment record. Therefore, for the initial rating period from July 26, 2016 to September 21, 2021, a higher initial rating in excess of 10 percent under Diagnostic Code 5251 is not warranted, and separate disability ratings of 10 percent are also not warranted under Diagnostic Codes 5252 or 5253 for limitation of flexion or impairment of the right thigh. Additionally, for the initial rating period from September 21, 2021 forward, a higher initial rating in excess of 10 percent under Diagnostic Code 5252 is not warranted, and separate disability ratings of 10 percent are also not warranted under Diagnostic Codes 5251 and 5253 for limitation of extension or impairment of the right thigh. The Board has considered additional impairment to the right hip/thigh on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59, but finds that such pain that has restricted overall motion does not cause limitation of motion to warrant a higher rating. See also DeLuca. The Veteran has reported right hip and thigh pain and difficulty with walking and standing for long periods of time; however, as noted above, even taking into account additional functional limitation due to pain, the VA examination reports and VA and private treatment records indicate ranges of motion that do not more nearly approximate the 10 percent criteria for separate ratings for limitation of flexion and impairment of the right thigh for the period from July 26, 2016 to September 21, 2021, or limitation of extension and impairment of the right thigh for the period from September 21, 2021 forward. The Board has also considered whether separate disability ratings are warranted for any other right hip/thigh disability. As discussed above, the evidence of record does not reflect that the right hip/thigh is ankylosed, or has developed into an impaired femur or a flail hip joint; thus, separate disability ratings or increased disability ratings are not warranted under Diagnostic Codes 5250, 5254, or 5255. 38 C.F.R. § 4.71a. 6. Rating the cervical spine disability from January 3, 2019 forward For the initial rating period on appeal from January 2, 2019 forward, the Veteran is in receipt of an initial 20 percent rating for the cervical spine disability under Diagnostic Code 5242. 38 C.F.R. § 4.71a. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula, a 10 percent disability rating is assigned for forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees, but not greater than 335 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 30 percent rating is assigned for forward flexion of the cervical spine at 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. Note (2) (See also Plate V) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3) provides that, in exceptional cases, an examiner may state, that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher rating for that segment. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that a rating in excess of 20 percent is not warranted for the initial rating period from January 3, 2019 forward. The weight of the evidence demonstrates that the cervical spine disability has been manifested by flexion greater than 15 degrees without favorable ankylosis of the entire cervical spine or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks but less than six weeks during a 12-month period. A January 2019 VA examination report shows flexion in the cervical spine was measured to 30 degrees with pain noted upon examination that causes functional loss. The VA examiner noted negative findings for ankylosis in the cervical spine and that the cervical spine disability did not result in incapacitating episodes requiring physician ordered bed rest. The Veteran underwent another VA examination in September 2021, the examination report for which shows the Veteran reported dull, sore, and sometimes tingling pain in the posterior neck. Flexion in the cervical spine was measured to 28 degrees with pain noted on examination that causes functional loss. The VA examiner noted negative findings for ankylosis in the cervical spine and that the cervical spine disability did not result in incapacitating episodes requiring physician ordered bed rest. The VA examiner also found no additional functional limitation of cervical spine following repetitive use or during episodes of flare ups. Based on the foregoing evidence, the Board finds that, for the initial rating period from January 3, 2019 forward, the weight of the evidence demonstrates that the criteria for a higher initial disability rating in excess of 20 percent for the cervical spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7. 7. TDIU A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Individual unemployability must be determined without regard to any non service connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran 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, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. For the period starting from July 26, 2016, the Veteran is service-connected for a cervical spine disability (100 percent disabling under 38 C.F.R. § 4.30 through September 30, 2016, then 20 percent disabling from October 1, 2016); right upper extremity radiculopathy (20 percent disabling), left upper extremity radiculopathy (20 percent disabling), lumbar strain (20 percent disabling), left lower extremity radiculopathy (10 percent disabling), tinnitus (10 percent disabling), a right hip disability (10 percent disabling), bilateral hearing loss (0 percent disabling), and cervical spine scar (0 percent disabling); therefore, the service-connected disabilities have met the regular schedular rating criteria for TDIU eligibility under 38 C.F.R. § 4.16(a). The Veteran asserts being unable to obtain or maintain substantially gainful employment due to service-connected disabilities. See October 2018 VA Form 21-8940 (TDIU claim). Specifically, in the October 2018 TDIU claim, the Veteran contends that the cervical spine disability and right hip disability prevent him from being able to obtain or maintain substantially gainful employment. The Veteran reports that neck and hip pain have progressively worsened and have drastically affected the ability to move, sit, and walk. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence shows that the Veteran has not been rendered unable to obtain or maintain substantially gainful employment due to service-connected disabilities. The October 2018 TDIU claim in this case reflects the Veteran received four years of college education and was last employed from 2015 to 2016 doing work in the insurance industry. The Veteran reported he left the last job due to disability. Notwithstanding these assertions, the record includes a Separation Notice from the State of Tennessee received in September 2016, which shows the Veteran was separated from his occupation as an Intake Specialist due to misconduct, not due to disabilities. Although the September 2016, January 2019, and September 2021 VA examination reports reflect that right hip pain has interfered with movements such as prolonged sitting, walking, and standing, and that neck pain has interfered with the ability to lift objects, such evidence does not demonstrate that the service-connected disabilities prevented the Veteran from performing the type of work consistent with that of an Intake Specialist in the insurance industry, similar to the job most recently held in 2016. The January 2019 VA examination report reflects that the VA examiner assessed the Veteran is still able to perform sedentary work. The Veteran reports in the October 2018 TDIU claim that he is still working part time and has reported working as a teaching assistant as recently as March 2019. See March 2019 VA treatment record. Based on the foregoing, the Board finds that the weight of the lay and medical evidence demonstrates that the service connected disabilities did not prevent the Veteran from obtaining or maintaining substantially gainful employment for any period from July 26, 2016. As the preponderance of the lay and medical evidence is against a finding for a TDIU, the appeal for TDIU must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.