Citation Nr: 21073795 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 13-25 519A DATE: December 10, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for limitation of extension of the right hip is denied. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the hip is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from May 1, 2012, but not earlier, is granted. FINDINGS OF FACT 1. The appellant's degenerative arthritis of the right hip is rated as 10 percent disabling based on limitation of extension, which is the maximum schedular rating permitted for limitation of extension of the thigh. 2. The appellant's degenerative arthritis of the right hip does not cause limitation of flexion to 30 degrees or less. 3. The evidence shows that it is at least as likely as not that the appellant first became too disabled to work due to his service-connected disabilities on May 1, 2012. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of extension due to degenerative arthritis of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5251. 2. The criteria for a rating in excess of 10 percent for degenerative arthritis of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5252. 3. The criteria for entitlement to TDIU have been met from May 1, 2012, but not earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in in the United States Air Force from August 1962 to August 1964 and from August 1990 to August 1991. He was a member of the United States Air Force Reserve for many years. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for degenerative arthritis of the right hip, assigning an initial 10 percent rating for arthritis from August 24, 2009, and an initial noncompensable rating for limitation of flexion of the right hip from August 24, 2009. The 10 percent rating was assigned for painful, but otherwise noncompensable, limitation of motion, and was granted under Diagnostic Code 5251 for limitation of extension of the thigh. These ratings assigned for the right hip disability were appealed in a notice of disagreement (NOD) received by VA in January 2019. A Statement of the Case (SOC) was issued by VA in April 2020. VA received the appellant's Substantive Appeal (Form 9) in January 2021, perfecting the appeal. A Supplemental Statement of the Case (SSOC) was issued by VA in February 2021. In a February 2021 rating decision, the appellant was assigned a separate 10 percent rating from December 8, 2020 for limitation of extension under Diagnostic Code 5252 and a separate 10 percent rating from December 8, 2020 for limitation of abduction, adduction, or rotation under Diagnostic Code 5253. The separate 10 percent rating for painful, but otherwise noncompensable, limitation of extension was not suspended by this rating decision and was continued as a separate issue on appeal. As this decision did not assign the maximum benefit allowable under law, the issues remained in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). In a subsequent July 2021 Board decision, the rating for limitation of abduction, adduction, or rotation was increased to 20 percent from December 8, 2020. An initial compensable rating for limitation of flexion of the right hip under Diagnostic Code 5252 was denied. Issues of entitlement to a rating greater than 10 percent for limitation of extension of the right hip and entitlement to a rating greater than 10 percent for degenerative arthritis of the right hip were remanded for further development, along with a claim for entitlement to TDIU. The claim for entitlement to TDIU is on appeal as inextricably intertwined with the issue of entitlement to an increased rating for the right hip disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that where a decision on one issue would have a significant impact upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). While the issue does appear to have been raised by a separate claim, and was separately adjudicated by the RO, the Board has previously considered the issue as raised as part of previous increased rating claims which have since been resolved. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating). TDIU was previously granted by the RO in a February 2021 rating decision; however, the effective date of the award was December 29, 2015. This effective date was granted because, as of the time the TDIU was granted, that was the earliest day on which the appellant met the schedular requirement for entitlement to TDIU, with at least as total disability rating of at least 70 percent and a single disability rated at least 40 percent. As the claim was not granted for the entire period on appeal, the Board notes that this grant did not resolve the claim. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is no abrogated). As a preliminary matter, the Board notes that the appellant has submitted several briefs which have been attributed to an "anonymous Veterans Agent," who claims to have assisted the appellant in the filing of the briefs. Initially, the Board would note that VA regulations prohibit any individual from assisting claimants in the preparation, presentation, and prosecution of claims for VA benefits as an agent or attorney unless he or she has first been accredited by VA for such purpose. 38 C.F.R. § 14.629(b). Additionally, in order for an accredited agent to be recognized by VA in a particular claim, a VA Form 21-22a, "Appointment of Attorney or Agent as Claimant's Representative" has to be submitted, signed by the appellant or someone with legal authority to act on their behalf. 38 C.F.R. § 14.631. To that end, the Board notes that VA regulations allow only "accredited agents and attorneys" who have filed a complete VA Form 21-22a to receive payment for services rendered in relation to a claim before VA. 38 C.F.R. § 14.636. As the "anonymous Veterans Agent" has not submitted a VA Form 21-22a in relation to this claim, the appellant is under no obligation to provide any financial compensation for any services rendered. As an additional preliminary matter, the Board notes that in a March 2021 Form 9 and in a September 2021 brief to the Board, the appellant, advised by the above mentioned "anonymous Veterans Agent," raised issues to whether there had been clear and unmistakable error in a previous 1992 denial of the appellant's service connection claims and the ratings assigned in that decision. The Board notes that a claim for clear and unmistakable error (CUE) is a separate matter, distinct and unrelated to the issues on appeal in this case, which are entitlement to increased ratings for a right hip disability and entitlement to TDIU prior to December 29, 2015. The appellant is advised that should he wish to raise this matter, he must do so with the RO. The appellant is further advised that any claim of CUE must be pled with specificity. Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (to raise CUE there must be some degree of specificity as to what the alleged error is and persuasive reasons must be given as to why the result would have been manifestly different). If the appellant wishes seek revision of a prior decision on the grounds of CUE, he should so notify the RO in writing, keeping in mind the specific requirements for CUE challenges set forth in 38 C.F.R. § 3.105 (a). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on the veteran's average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence used to decide whether an [initial] rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of an initial rating, staged ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial rating in excess of 10 percent for limitation of extension of the right hip is denied. The appellant contends that he is entitled to a higher rating for his limitation of extension of the right hip, despite being in receipt of the maximum schedular rating under this particular diagnostic code. The appellant's service-connected arthritis of the right hip is rated 10 percent disabling based on limitation of extension to 5 degrees or less. The appellant's service-connected arthritis of the right hip has a separate rating under 38 C.F.R. § 4.71a, Diagnostic Code 5251, for limitation of extension of the thigh. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. As the appellant is in receipt of the highest schedular rating for limitation of extension of the thigh, there is no basis to award a higher rating. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). A separate rating for limitation of flexion under DC 5252 has been considered; however, as discussed below, the appellant has not, during the period on appeal, manifested with symptoms necessary for the assignment of a compensable rating under this DC. A separate 20 percent rating has already been assigned for impairment of the thigh under DC 5253. The evidence of record does not demonstrate that the appellant has ankylosis of the hip, a flail joint, or an impairment of the right femur causing nonunion or malunion due to fracture of the surgical neck with false joint. As such, a separate rating under DCs 5250, 5254, 5255. The evidence of record does not demonstrate that the appellant has had surgical intervention or a total or partial hip arthroplasty such that a rating might be assigned under DC 5054. As the appellant already has the maximum schedular disability rating under this diagnostic code, the appeal is denied. 2. Entitlement to an initial rating greater than 10 percent for degenerative arthritis of the hip is denied. The appellant contends that he is entitled to a higher rating for his degenerative arthritis of the right hip. He has not made any specific contentions with regards to this particular rating, he has merely continued an appeal of the various ratings assigned for his right hip disability, presumably believing that the disability has not been adequately rated during the period on appeal. Degenerative arthritis is rated under Diagnostic Code 5003. Under this diagnostic code, a 10 percent rating is awarded when X-ray evidence shows involvement of 2 or more major joints or 2 or more minor joint groups affected. A maximum 20 percent rating is awarded when X-ray evidence shows involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Note (1) following this Diagnostic Code does not allow for a rating under this Diagnostic Code based on X-ray findings to be combined with ratings based on limitation of motion. The Board finds that an increased rating for degenerative arthritis under this Diagnostic Code would not be beneficial to the appellant. While he does have arthritis in other major joints, those ratings would need to be combined with the appellant's ratings for his right hip disability into a single rating to assign a rating under Diagnostic Code 5003. None of his separate ratings for limitation of motion of those joints would be in effect, and as a result, VA would have to reduce his overall rating significantly. This would not be beneficial to the appellant as his disability compensation would be decreased. As such, an increased rating under Diagnostic Code 5003 is denied. That said, as the appellant does have painful motion in his right hip, to include in flexing the joint, the Board has considered whether a rating greater than 10 percent could be awarded for limitation of flexion of the right hip. As mentioned above though, the appellant at no time during the period on appeal has shown limitation of flexion of the right hip to an extent that it would warrant a rating greater than 10 percent. Limitation of flexion of the hip joint is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252, for limitation of flexion of the thigh. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. VA examinations of the appellant's right hip have repeatedly shown flexion greater than 30 degrees. Limitation of flexion to 30 degrees or less is necessary for the assignment of a rating greater than 10 percent, which is the currently assigned rating based on painful motion. Even on the most recent examination in February 2021, and even when considering the appellant's reports of symptoms during flare-ups or after repeated use over time, the estimated flexion of his right hip was 65 degrees. Previous examinations and VA treatment records, along with the appellant's own statements show that he has had limitation of flexion of the right hip to 30 degrees or less, even during periods of flare-up or after repeated use over time. As the appellant already has separate ratings assigned for limitation of extension and limitation of abduction, adduction, or rotation which already exceed or match the rating he receives for painful motion of the right hip joint, and he does not meet the criteria for a rating in excess of 10 percent for limitation of flexion even when considering symptoms during flare-ups or after repeated use over time, the Board finds that a rating greater than 10 percent is not warranted for the appellant's degenerative arthritis of the right hip, separate from his ratings for limitation of motion. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5251, 5252, 5253. It may be that a separate rating for otherwise noncompensable limitation of flexion is not warranted at all; however, the Board will not at this time disturb the ratings as they have been assigned by the RO. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from May 1, 2012, but not earlier, is granted. The appellant contends that his service-connected disabilities prevent him from being unable to obtain or maintain substantially gainful employment. In August 2020, VA received from the appellant a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability (TDIU Application). On that form, he indicated that he worked full-time as a social worker from June 1, 2000 to June 1, 2008. Prior to that he stated he had taken a disability retirement in 1994 and received workman's compensation for a year. He stated on his form that he began working again sometime in 2012 for a health agency, but that he had to leave the job effective May 1, 2012 due to his being unable to perform the physical demands of the job on account of his service-connected disabilities, particularly his right hip disability. In separate forms filed with the assistance of the above mentioned "anonymous Veterans Agent" the appellant indicated that he believes total disability should be assigned from August 1991; however, this contention has been made as part of the above discussed claim for revision based on CUE, which is a separate claim that must be filed with the Agency of Original Jurisdiction (AOJ). Even so, the Board notes that the evidence of record, to include the appellant's own statements, show he was able to maintain substantially gainful employment for many years after August 1991. Considering the evidence of record, the Board finds that the evidence at least as likely as not shows that the appellant has been unable to obtain or maintain gainful employment since May 1, 2012, but not earlier, and that the appellant has met the schedular criteria since that date. The Board also finds that the preponderance of the evidence of record is against the assignment of TDIU prior to May 1, 2012. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). An evaluation of the level of disability must include consideration of functional impairment of the ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure and follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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, 4.16(a). Nevertheless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. Thus, where the schedular threshold of 38 C.F.R. § 4.16(a) is not met, an extraschedular rating may be warranted under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19. The ultimate question is whether a veteran, in light of their service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The appellant was granted entitlement to TDIU from December 29, 2015 in a February 2021 rating decision because, at the time, that was the earliest date the appellant was found to meet the schedular criteria by the AOJ. Subsequent increased ratings though have pushed back the date from when the appellant has met the schedular criteria. The Board notes that based on the current ratings assigned, the appellant has met the schedular criteria for TDIU from at least August 24, 2009, with a 90 percent total disability rating and at least one disability rated 40 percent or more disabling, to include as by a combination of disabilities affecting the musculoskeletal system. 38 C.F.R. § 4.16(a). The question for the Board then is, at what point, did the appellant's service-connected disabilities rise to a level of severity such that they prevented him from obtaining or maintaining substantially gainful employment. When TDIU was initially granted by the AOJ, it appears the issue of whether the appellant was able to obtain or maintain gainful employment was decided based upon the appellant's August 2020 TDIU Application and his VAMC records from November 2010 to January 2021. To that end, the Board has afforded substantial probative weight to the appellant's personal statement, found in his August 2020 TDIU Application, in which he indicated that he became unable to perform the physical tasks necessary for employment as of May 1, 2012. Prior to that, he indicated that, while the tasks of employment were becoming increasingly more difficult, he was able to perform them to a reasonable degree. He has made no indication that he ceased working in 2008 because of limitation of his service-connected disabilities and that he was unable to obtain or maintain gainful employment from that time due to his service-connected disabilities. The Board also affords significant probative weight to the medical evidence of record which reveals a gradual worsening of all the appellant's conditions during the period prior to December 29, 2015. VA examinations of the appellant's service-connected back, hip, and lower extremity disabilities in August 2016 show him to be unable to do tasks requiring standing or walking for substantial periods of time, lifting more than 10 pounds, or bending over or squatting repetitively. Bilateral hearing loss and tinnitus examinations showed the appellant with significant hearing loss which did impact his ability to perform both sedentary and more active employment activities. The examiner indicated that this might be mitigated by use of hearing aids; however. Examinations of the appellant's right wrist and elbow indicated that these service-connected disabilities prevented employment in any sector requiring repetitive movements involving the hands or necessitating the ability to maintain prolonged grip strength. The Board has considered whether entitlement to TDIU is warranted prior to May 1, 2012; however, the Board finds the preponderance of the evidence is against granting entitlement to TDIU prior to this date, as the appellant himself indicated he was able to obtain or maintain gainful employment prior to this date. Prior to this date, he was gainfully employed, albeit after a break in his employment history. His ability to obtain and maintain a job, even if only for a few months in 2012 indicates that he was not at least as likely as not prevented from obtaining or maintaining employment prior to May 1, 2012. This is consistent with the VAMC evidence showing a gradual worsening of the appellant's service-connected degenerative diseases, which is to be expected given the nature of the degenerative conditions. More importantly it is consistent with the appellant's own statements regarding the progressive nature of his symptoms, with their gradual worsening, and his statements that they did not become so disabling that they prevented him from working until May 1, 2012. Considering all this, the Board finds the evidence at least as likely as not establishes the appellant has been unable to obtain or maintain gainful employment since May 1, 2012, as he has contended. As such, the Board concludes that criteria for entitlement to TDIU are met from May 1, 2012. 38 C.F.R. §§ 4.3, 4.16(a). While the Board finds the medical evidence supports this conclusion, the most important evidence the Board has relied on is the appellant's own statement that May 1, 2012 was the date he became too disabled due to his service-connected disabilities to obtain or maintain gainful employment. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.