Citation Nr: 21076602
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 18-15 864
DATE:  December 27, 2021

ORDER

Entitlement to a compensable rating prior to July 1, 2021, and 30 percent thereafter for bilateral iritis (uveitis) is denied.

Entitlement to a rating of 50 percent, but not higher, prior to June 30, 2017 for unspecified depressive disorder with panic disorder is granted.

Entitlement to a rating in excess of 50 percent beginning June 30, 2017 for unspecified depressive disorder with panic disorder is denied.

Entitlement to a compensable rating for left hip labral degeneration with sacroiliac joint obliteration and hip strain (hereinafter "left hip flexion") is denied.

Entitlement to a compensable rating for right hip osteoarthritis with sacroiliac joint obliteration and hip strain (hereinafter "right hip flexion") is denied.

Entitlement to a rating in excess of 10 percent for left hip labral degeneration with sacroiliac joint obliteration due to ankylosing spondylitis and hip strain (hereinafter "left hip extension") is denied.

Entitlement to a rating in excess of 10 percent for right hip osteoarthritis with sacroiliac joint obliteration and hip strain (hereinafter "right hip extension") is denied.

Entitlement to a higher rating for left hip labral degeneration with sacroiliac joint obliteration and hip strain (hereinafter "left hip rotation"), rated as compensable prior to July 28, 2014, 10 percent from July 28, 2014 to July 1, 2016, noncompensable from July 1, 2016 to October 6, 2020, and 10 percent thereafter, is denied.

Entitlement to a higher rating for right hip osteoarthritis with sacroiliac joint obliteration and hip strain (hereinafter "right hip rotation"), rated as noncompensable prior to July 28, 2014, 10 percent from July 28, 2014 to July 1, 2016, noncompensable from July 1, 2016 to October 6, 2020, and 10 percent thereafter, is denied.

REMANDED

Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) prior to June 30, 2017, to include on an extraschedular basis, is remanded.

FINDINGS OF FACT

1. For the appeal period prior to July 1, 2021, the Veteran's bilateral corrected distance visual acuity was, at worst, 20/40 in each eye without evidence of at least one incapacitating episode which required prescribed bedrest and/or treatment for bilateral iritis within a twelve-month period. 

2. For the appeal period on beginning July 1, 2021, the Veteran's bilateral corrected distance visual acuity was, at worst, 20/40 in each eye and visual field average contraction was 37 degrees in each eye without evidence of incapacitating episodes lasting in duration of at least four weeks but less than six weeks which required prescribed bedrest and/or treatment for bilateral iritis within a twelve-month period.

3. Throughout the period on appeal, the social and occupational impairment from the Veteran's unspecified depressive disorder with panic disorder more nearly approximated reduced reliability and productivity without social and occupational impairment with deficiencies in most areas or total social and occupational impairment.

4. Throughout the period on appeal, the Veteran's left hip flexion was manifested as flexion that was limited to 85 degrees, at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, fail joint, or impairment of the femur.

5. Throughout the period on appeal, the Veteran's right hip flexion was manifested as flexion that was limited to 95 degrees, at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, fail joint, or impairment of the femur.

6. Throughout the period on appeal, the Veteran is in receipt of 10 percent for his left hip extension, which is the maximum schedular rating for that disability.

7. Throughout the period on appeal, the Veteran is in receipt of 10 percent for his right hip extension, which is the maximum schedular rating for that disability.

8. For the appeal period prior to July 28, 2014, the Veteran's left hip rotation did not manifest as an inability to toe-out more than 15 degrees and limitation of adduction where the legs cannot be crossed so as to warrant a compensable rating, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, ankylosis, fail joint, or impairment of the femur.

9. For the appeal period prior to July 28, 2014, the right hip rotation did not manifest as an inability to toe-out more than 15 degrees and limitation of adduction where the legs cannot be crossed so as to warrant a compensable rating, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, ankylosis, fail joint, or impairment of the femur.

10. For the appeal period from July 28, 2014 to July 1, 2016, the Veteran's left hip rotation was manifested as abduction to 30 degrees and adduction to 30 degrees, both at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, fail joint, or impairment of the femur.

11. For the appeal period from July 28, 2014 to July 1, 2016, the Veteran's right hip rotation was manifested as abduction to 20 degrees and adduction to 20 degrees, both at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, fail joint, or impairment of the femur.

12. For the appeal period from July 1, 2016 to October 6, 2020, the Veteran's left hip rotation was manifested as abduction to 35 degrees and adduction to 25 degrees, both at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, fail joint, or impairment of the femur.

13. For the appeal period from July 1, 2016 to October 6, 2020, the Veteran's right hip rotation was manifested as abduction to 30 degrees and adduction to 15 degrees, both at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, fail joint, or impairment of the femur.

14. For the appeal period beginning on October 6, 2020, the Veteran's left hip rotation was manifested as abduction to 20 degrees and adduction to 20 degrees, both at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, fail joint, or impairment of the femur.

15. For the appeal period beginning on October 6, 2020, the Veteran's right hip rotation was manifested as abduction was to 15 degrees and adduction to 15 degrees, both at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, fail joint, or impairment of the femur.

CONCLUSIONS OF LAW

1. The criteria for a compensable rating prior to July 1, 2021, and a rating in excess of 30 percent thereafter for bilateral iritis (uveitis) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.754.78, 4.79, Diagnostic Code 6000. 

2. The criteria for a 50 percent rating, but not higher, for the appeal period prior to June 30, 2017 for unspecified depressive disorder with panic disorder are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.130, Diagnostic Code 9435.

3. The criteria for a rating in excess of 50 percent for the appeal period beginning on June 30, 2017 for unspecified depressive disorder with panic disorder are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.130, Diagnostic Code 9435.

4. The criteria for a compensable for left hip flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.21, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code 5252.

5. The criteria for a compensable for right hip flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.21, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code 5252.

6. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for left hip extension. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.21, 4.27, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5251.

7. There is no legal basis for the assignment of a schedular rating in excess of 10 percent for right hip extension. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.21, 4.27, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5251.

8. The criteria for an increased rating for left hip impairment based on limitation of abduction, rated as noncompensable prior to July 28, 2014, 10 percent from July 28, 2014 to July 1, 2016, a noncompensable rating from July 1, 2016 to October 6, 2020, and 10 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Code 5253.

9. The criteria for an increased rating for right hip impairment based on limitation of abduction, rated as noncompensable prior to July 28, 2014, 10 percent from July 28, 2014 to July 1, 2016, noncompensable from July 1, 2016 to October 6, 2020, and 10 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.71a, Diagnostic Code 5253.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from August 1992 to April 1993. 

These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Denver, Colorado. Jurisdiction of this appeal is currently with the RO in Manchester, New Hampshire. 

This case was most recently before the Board in November 2019, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the matters were remanded to obtain updated VA treatment records as well as specific private treatment records. Updated VA treatment records have been associated with the record and a November 2019 letter requested that the Veteran complete appropriate authorization forms to allow VA to obtain treatment records on his behalf. The Board therefore finds that there has been substantial compliance with its previous remand. The case has now been returned to the Board for appellate action.

In addition, in a July 2021 rating decision, the AOJ granted increased ratings for bilateral iritis and assigned a 30 percent rating effective July 1, 2021; left hip rotation and assigned a 10 percent rating effective October 6, 2020; and right hip rotation and assigned a 10 percent rating effective October 6, 2020 as well as granted entitlement to a TDIU effective June 30, 2017. To date, the Veteran has not submitted a notice of disagreement with this decision. However, as this does not represent a full grant of the benefits sought on appeal as to the claims, the claims remain before the Board, and the Board has reframed the issues to reflect the rating increases.

Increased Rating

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). 

The veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 

When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. 

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). 

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. 

When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

1. Bilateral Iritis

The Veteran seeks a higher rating for his service-connected bilateral iritis. Specifically, the Veteran asserts that he experienced flares of his eyes at least once a month, lasting from four days to ten days in duration. See Notice of Disagreement, December 28, 2015. 

The Veteran's bilateral iritis is currently rated as noncompensable prior to July 1, 2021, and 30 percent thereafter under Diagnostic Code 6003. 38 C.F.R. § 4.79. The Board notes that the December 2008 amendment to the VA Schedule for Rating Disabilities removed Diagnostic Code 6003 for iritis and added iritis to Diagnostic Code 6000 (choroidopathy, including uveitis, iritis, cyclitis, and choroiditis). Id.

During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye.  89 Fed. Reg. 15316 (Apr. 10, 2018).  The final rule went into effect May 13, 2018.  Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments.     

Under the former criteria, Diagnostic Code 6000 instructed to evaluate iritis pursuant to the General Rating Formula Diagnostic Codes 6000 through 6009, which instructed to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. 

Where incapacitating episodes have a total duration of at least one week, but less than two weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least two weeks, but less than four weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least four weeks, but less than six weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least six weeks during the past 12 months, a 60 percent rating is warranted.

A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 

Under the revised criteria, Diagnostic Code 6000 instructs to evaluate iritis pursuant to the General Rating Formula for Diseases of the Eye, which instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. For the next-higher 10 percent rating to be warranted, the evidence must show documented incapacitating episodes requiring at least one but less than three treatment visits for an eye condition during the past 12 months. 38 C.F.R. § 4.79. An incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes, such as systemic immunosuppressants or biologic agents, intravitreal or periocular injections, laser treatments, or other surgical interventions.  Id. at Notes 1 and 2.

Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated.  With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required.  There are otherwise no substantive changes to how those types of visual impairment are rated.  Subject to the provisions of § 3.383(a), if visual impairment of only one eye is service connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment.  38 C.F.R. § 4.75(c).   

The table of Impairment of Central Visual Acuity encompasses Diagnostic Codes 6061-66.

Under Diagnostic Code 6061, a 100 percent rating is warranted for anatomical loss of both eyes.

Under Diagnostic Code 6062, a 100 percent rating is warranted for no more than light perception in both eyes.

Diagnostic Code 6063 provides ratings where there is anatomical loss of one eye (the poorer eye). A 40 percent rating is warranted where visual acuity of the other eye is 20/40. A 50 percent rating is warranted where visual acuity of the other eye is 20/50. A 60 percent rating is warranted where visual acuity of the other eye is 20/100 or 20/70. A 70 percent rating is warranted where visual acuity of the other eye is 20/200. An 80 percent rating is warranted where visual acuity of the other eye is 15/200. A 90 percent rating is warranted where visual acuity of the other eye is 10/200. A 100 percent rating is warranted where visual acuity of the other eye is 5/200. 

Diagnostic Code 6064 provides ratings where there is no more than light perception in one eye (the poorer eye). A 30 percent rating is warranted where visual acuity in the other eye is 20/40. A 40 percent rating is warranted where visual acuity in the other eye is 20/50. A 50 percent rating is warranted where visual acuity in the other eye is 20/70. A 60 percent rating is warranted where visual acuity in the other eye is 20/100. A 70 percent rating is warranted where visual acuity in the other eye is 20/200. An 80 percent rating is warranted where visual acuity in the other eye is 15/200. A 90 percent rating is warranted where visual acuity in the other eye is 10/200. A 100 percent rating is warranted where visual acuity in the other eye is 5/200.

Diagnostic Code 6065 provides ratings where vision in one eye (the poorer eye) is 5/200. A 30 percent rating is warranted where vision in the other eye is 20/40. A 40 percent rating is warranted where vision in the other eye is 20/50. A 50 percent rating is warranted where vision in the other eye is 20/70. A 60 percent rating is warranted where vision in the other eye is 20/100. A 70 percent rating is warranted where vision in the other eye is 20/200. An 80 percent rating is warranted where vision in the other eye is 15/200. A 90 percent rating is warranted where vision in the other eye is 10/200. A 100 percent rating is warranted where vision in the other eye is also 5/200. 

Diagnostic Code 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better.

Where the visual acuity in both eyes is 20/40, a zero percent rating is warranted.

Where the visual acuity in one eye (the poorer eye) is 20/50, the following ratings apply. A 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40.

Where the visual acuity in one eye (the poorer eye) is 20/70, the following ratings apply. A 30 percent rating is warranted where vision in the other eye is also 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40.

Where the visual acuity in one eye (the poorer eye) is 20/100, the following ratings apply. A 50 percent rating is warranted where vision in the other eye is also 20/100. A 30 percent rating is warranted where vision in the other eye is 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40.

Where visual acuity in one eye (the poorer eye) is 20/200, the following ratings apply. A 70 percent rating is warranted where vision in the other eye is also 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40.

Where visual acuity in one eye (the poorer eye) is 15/200, the following ratings apply. An 80 percent rating is warranted where vision in the other eye is also 15/200. A 70 percent rating is warranted where vision in the other eye is 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40.

Where visual acuity in one eye (the poorer eye) is 10/200, the following ratings apply. A 90 percent rating is warranted where vision in the other eye is also 10/200. An 80 percent rating is warranted where vision in the other eye is 15/200. A 70 percent rating is warranted where vision in the other eye is 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 50 percent rating is warranted where vision in the other eye is 20/70. A 40 percent rating is warranted where vision in the other eye is 20/50. A 30 percent rating is warranted where vision in the other eye is 20/40.

The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. The evaluation for visual impairment of one eye should be combined with other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under Diagnostic Code 7800).  38 C.F.R. § 4.75(d). 

When both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, the visual acuity and visual field defect are separately evaluated and combined under the provisions of 38 C.F.R. § 4.25.  38 C.F.R. § 4.77(c).

Evaluation of visual field is based on the remaining field of vision in each eye. The examiner must record the remaining visual field of at least 16 meridians 2212 degrees apart for each eye, even though only the visual field at eight principal meridians 45 degrees apart will be used for rating purposes. Id. 

The table of Ratings for Impairment of Visual Fields provides ratings for visual field loss. The first half of the table provides ratings based on loss of an entire half of field of vision in an eye. The second half of the table provides ratings based on the average concentric contraction of the visual field of each eye. 

To calculate average concentric contraction, the rater should add the remaining visual field (in degrees) at each of eight principal meridians 45 degrees apart and divide the sum by eight. 38 C.F.R. § 4.77(b).

To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity) and combine them under the provisions of § 4.25. 38 C.F.R. § 4.77(c).

The table of Ratings for Impairment of Visual Fields encompasses Diagnostic Codes 6080  6081.

Homonymous hemianopsia is rated 30 percent.

Loss of temporal half of visual field warrants a 30 percent rating is it is bilateral and a 10 percent rating if it is unilateral. Alternatively, this equates to 20/70 vision in each affected eye.

Loss of nasal half of visual field warrants a 10 percent rating, whether or not the effect is bilateral or unilateral. Alternatively, this equates to 20/50 vision in each affected eye.

Loss of inferior half of visual field warrants a 30 percent rating is it is bilateral and a 10 percent rating if it is unilateral. Alternatively, this equates to 20/70 vision in each affected eye.

Loss of superior half of visual field warrants a 10 percent rating, whether or not the effect is bilateral or unilateral. Alternatively, this equates to 20/50 vision in each affected eye.

Ratings are also provided for concentric contraction of visual field.

Where there is a remaining field of 46 to 60 degrees, a 10 percent rating is warranted for either bilateral or unilateral involvement. Alternatively, this equates to 20/50 vision in each affected eye.

Where there is a remaining field of 31 to 45 degrees, a 30 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/70 vision in each eye.

Where there is a remaining field of 16 to 30 degrees, a 50 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/100 vision in each affected eye.

Where there is a remaining field of 6 to 15 degrees, a 70 percent rating is warranted for bilateral involvement and a 20 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/200 vision in each affected eye.

Where there is a remaining field of 5 degrees, a 100 percent rating is warranted for bilateral involvement and a 30 percent rating is warranted for unilateral involvement. Alternatively, this equates to 5/200 vision in each affected eye.

Turning to the evidence, the Veteran was afforded a VA examination in August 2015. At that time, the examiner diagnosed bilateral iritis. The Veteran reported he was diagnosed with bilateral iritis due to ankylosing spondylitis; he reported flare-ups of his eyes every two to three weeks that were relieved with steroid eye drops. 

Upon physical examination in August 2015, corrected distance visual acuity was 20/40 or better bilaterally. The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse. The Veteran did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. The Veteran did not have corneal irregularity that resulted in severe irregular astigmatism. The Veteran did not have diplopia. The Veteran was shown to have pigment deposit in the right lens. He did not have a visual field defect or a condition that may result in a visual field defect. Nevertheless, visual field testing was performed and the Goldmann Chart was associated with the claims file. The Veteran did not have contraction of a visual field. The Veteran had bilateral choroidopathy that did not result in a decrease of visual acuity or visual impairment. He did not have any scarring or disfigurement attributable to any eye condition. The Veteran did not have any incapacitating episodes attributable to any eye condition. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The examiner noted the Veteran's bilateral iritis did not impact his ability to work. The examiner remarked the Veteran reported flare-ups of the iritis every couple of weeks that were fairly easily resolved with the use of eyedrops, therefore, the examiner found the iritis was controlled and that he did not experienced functional impairment from the disorder.

The Veteran was afforded a VA examination in June 2017. At that time, the examiner diagnosed bilateral iritis and uveitis, and bilateral cataracts. The Veteran reported his last flare-up of the right eye was two weeks prior, and he was not currently using eye drops for either eye. He reported one to two flare-ups of his iritis per month, which resolved in a few days with the use of steroid eye drops. The Veteran denied having any pain in his eyes at the time of VA examination.

Upon physical examination in June 2017, corrected distance visual acuity was 20/40 or better bilaterally. The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse. The Veteran did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. The Veteran did not have corneal irregularity that resulted in severe irregular astigmatism. The Veteran did not have diplopia. The Veteran was shown to have a documented visual field defect. Visual field testing was performed; the Goldmann Chart was associated with the claims file. The Veteran was not shown to have contraction of a visual field, loss of a visual field, or scotoma. The Veteran's bilateral cataracts were preoperative, there was not aphakia or dislocation of the crystalline lens, and there was no decrease in visual acuity or other visual impairment attributable to his cataracts. The examiner noted the Veteran's corrected vision was 20/20 bilaterally. The examiner noted the Veteran had iritis that was in remission bilaterally. There was no scarring or disfigurement attributable to any eye condition. The Veteran did not have any incapacitating episodes attributable to any eye condition. The examiner noted the Veteran's bilateral iritis did not impact his ability to work. The examiner remarked the Veteran did not have active iritis or uveitis in either eye and the conditions were in remission. The examiner also remarked that the bilateral cataracts were due to age and not due to iritis or uveitis due to the mild nature of the cataracts and the age of the Veteran. Additionally, the examiner noted the visual fields were within normal limits bilaterally, and the Veteran's visual acuity was great enough to pass a driver's license vision examination and could read normal print with his standard eyeglasses.

The Veteran was afforded a VA examination in July 2021. At that time, the examiner diagnosed bilateral iritis (uveitis), bilateral glaucomatous optic atrophy, bilateral dry eye syndrome, and left nuclear sclerotic cataract. The Veteran reported periodic flare-ups of red and painful eyes, every few weeks, and dry eyes. He reported his bilateral iritis was stable with treatment. 

Upon physical examination in July 2021, corrected distance visual acuity was 20/40 bilaterally. The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse. The Veteran did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. The Veteran did not have corneal irregularity that resulted in severe irregular astigmatism. The Veteran did not have diplopia. Slit lamp and external eye examination showed bilateral dry eyes, iritis, and nuclear cataracts. Internal eye examination showed bilateral glaucomatous optic atrophy of the optic disc. The Veteran had a documented visual field defect. Visual field testing was performed; the Goldmann Chart was associated with the claims file. The Veteran was not shown to have contraction of a visual field, loss of a visual field, or scotoma. The examiner found the Veteran's periodic pain was attributable to the dry eye syndrome due to periodic pain and light sensitivity; the reduced visual acuity due to cataracts and possibly previous episodes of glaucoma; and the ocular discomfort the Veteran experienced was due to dry eyes and iritis flare-ups. The Veteran's glaucoma did not require continuous medication for treatment; the examiner indicated the Veteran's decrease in visual acuity or other visual impairment was attributable to glaucoma. There was no scarring or disfigurement attributable to any eye condition. The Veteran did not have any incapacitating episodes attributable to any eye condition. The examiner noted the Veteran's bilateral iritis did not impact his ability to work. The examiner remarked that it is well documented in literature that ankylosing spondylitis results in iritis/uveitis and dry eyes; and that at times, iritis results in a temporary glaucoma situation, as evidenced by the presence of the Veteran's optic atrophy and constricted visual fields. Furthermore, the examiner remarked the necessary steroid treatment for iritis often results in cataracts.

For the July 2021 VA examination, perimetry as to the Veteran's right and left eyes showed the remaining visual fields were, in degrees:

Meridian	Normal Degrees	Right Eye	Left eye

Up	45	10	22

Up Temporally	55	40	36

Temporally	85	51	50

Down Temporally	85	52	50

Down	65	42	45

Down Nasally	50	32	32

Nasally	60	38	32

Up Nasally	55	28	26

Total	500	293	293

Adding the remaining visual field for the Veteran's each eye at each principal meridian results in a total remaining visual field of 293 degrees each.  Dividing 293 by 8 and rounding to the nearest whole number, results in an average concentric contraction 37 of the visual field for each eye.

The Board notes that a review of the record shows that the Veteran has received treatment for his bilateral iritis from both VA Medical Centers and private providers. However, there is no indication from the record that the Veteran's symptoms are worse than those reported in the various records discussed above. 

Based on the foregoing, the Board finds that a compensable rating for his bilateral iritis prior to July 1, 2021 is not warranted. As the amended regulations went into effect during the rating period on appeal, both the former and revised criteria under Diagnostic Code 6000 are for consideration. For the next-higher 10 percent rating to be warranted, the evidence must show visual acuity (corrected distance vision) of at least 20/50 or evidence of at least one incapacitating episode within a twelve-month period. Here, the August 2015 and June 2017 VA examinations and post-service treatment records reflect corrected distance measuring no more than 20/40 in the bilateral eyes. As noted above, a 10 percent rating is assigned when corrected distance visual acuity in one eye (the poorer eye) is 20/50 and vision in the other eye is 20/40; when visual acuity in one eye (the poorer eye) is 20/70 and vision in the other eye is 20/40; or when visual acuity in one eye (the poorer eye) is 20/100 and vision in the other eye is 20/40. As the Veteran was shown to have 20/40 or better in each eye throughout this period on appeal, this equates to a noncompensable (zero percent) rating based on visual acuity. 

The record is also silent for evidence of at least one incapacitating episode of left eye iritis having a total duration of at least one week, but less than two weeks, requiring prescribed bedrest and treatment by a physician during a twelve-month period prior to May 13, 2018, when the amended regulations went into effect, or, at least 1 incapacitating episode requiring treatment for left eye iritis within a twelve-month period from May 13, 2018 to the present. The Veteran has not reported or asserted that his bilateral iritis resulted in incapacitating episodes at any time prior to July 1, 2021. Nevertheless, the Board notes that the Veteran treats his flare-ups of bilateral iritis with eye drops; however, proactive measures are not compensated for under Diagnostic Code 6000. To warrant a higher rating, the evidence must show either visual acuity of at least 20/50 one eye or at least one incapacitating episode as to the Veteran's iritis during a twelve-month period (prescribed bedrest and treatment by a physician prior to May 13, 2018 or treatment visit which involved systemic immunosuppressants or biologic agents, intravitreal or periocular injections, laser treatments, or other surgical interventions from May 13, 2018 to the present). As the medical evidence is silent for these criteria, the currently assigned noncompensable (zero percent) rating for bilateral iritis is appropriate and a higher rating is not warranted prior to July 1, 2021.    

Based on the foregoing, the Board also finds that a rating in excess of 30 percent for his bilateral iritis beginning July 1, 2021 is not warranted. As the amended regulations went into effect during the rating period on appeal, both the former and revised criteria under Diagnostic Code 6000 are for consideration. For the next-higher 40 percent rating to be warranted, the evidence must show visual acuity (corrected distance vision) of anatomical loss of one eye (the poorer eye) and 20/40 in the other eye, or anatomical loss of one eye (the poorer eye) and 20/50 in the other eye, 5/200 (the poorer eye) and 20/40 in the other eye, 20/200 in one eye (the poorer eye) and 20/70 in the other eye, 10/200 in on eye (the poorer eye) and 20/70 in the other eye, 10/200 in one eye (the poorer eye) and 20/70 in the other eye, and 10/200 in on eye (the poorer eye) and 20/50 in the other eye; or evidence of incapacitating episodes have a total duration of at least four weeks, but less than six weeks, during the past 12 months. Here, the July 2021 VA examination and post-service treatment records reflect corrected distance measuring no worse than 20/40 in the bilateral eyes and did not have incapacitating episodes. In addition, the Veteran's visual field average contraction was shown to be 37 degrees in each eye, which warrants a 30 percent rating for bilateral involvement, and alternatively equates to 20/70 vision in each eye. The Veteran did not have remaining field of 16 to 30 degree to warrant a higher 50 percent rating for bilateral movement. As the Veteran was shown to have 20/40 or better in each eye throughout this period on appeal, this equates to a noncompensable (zero percent) rating based on visual acuity; the Veteran was shown to have visual field contraction of 37 degrees in each eye, this equates to a 30 percent rating based on visual field impairment. 

The record is also silent for evidence of incapacitating episodes have a total duration of at least four weeks, but less than six weeks, during the past 12 months, such that a 40 percent rating is warranted. The Veteran has not reported or asserted that his bilateral iritis resulted in incapacitating episodes at any time beginning July 1, 2021. Nevertheless, the Board notes the Veteran treats his flare-ups of bilateral iritis with eye drops; however, proactive measures are not compensated for under Diagnostic Code 6000. To warrant a higher rating, the evidence must show either visual acuity (corrected distance vision) of anatomical loss of one eye (the poorer eye) and 20/40 in the other eye, or anatomical loss of one eye (the poorer eye) and 20/50 in the other eye, 5/200 (the poorer eye) and 20/40 in the other eye, 20/200 in one eye (the poorer eye) and 20/70 in the other eye, 10/200 in on eye (the poorer eye) and 20/70 in the other eye, 10/200 in one eye (the poorer eye) and 20/70 in the other eye, and 10/200 in on eye (the poorer eye) and 20/50 in the other eye; or evidence of incapacitating episodes have a total duration of at least four weeks, but less than six weeks, during the past 12 months. As the medical evidence is silent for these criteria, the currently assigned 30 percent rating for bilateral iritis is appropriate and a higher rating is not warranted beginning July 1, 2021.    

While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board acknowledges the Veteran's assertions that he experienced flares of his eyes at least once a month, lasting from four days to ten days in duration, and therefore his symptoms warrant a higher rating for his bilateral iritis. However, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability considering the rating criteria to be more persuasive than the Veteran's reports regarding the severity of his condition. Even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a higher rating are not met. The Rating Schedule contemplates such impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). 

The Board has considered whether further staged ratings under Fenderson v. West, supra is appropriate; however, the Board finds that his symptomatology was been stable throughout each period on appeal. Therefore, assigning further staged ratings is not warranted. The Veteran nor his representative have not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Accordingly, the Board finds the preponderance of evidence is against the claim and entitlement to increased ratings for bilateral iritis are not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

2. Unspecified Depressive Disorder

The Veteran asserts that he is entitled to a higher rating for his unspecified depressive disorder as his symptoms are worse than those contemplated by his assigned ratings. Specifically, the Veteran asserts that he experienced panic attacks several times a week, weak memory, confusion, and taking a lot of medications that warrant higher ratings for his unspecified depressive disorder. See Notice of Disagreement, December 28, 2015.

The Veteran's major depressive disorder is rated as 30 percent disabling prior to June 30, 2017, and 50 percent disabling thereafter under the General Rating Formula for Psychiatric Disabilities (General Formula). 38 C.F.R. § 4.130. 

Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. "A Veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017).

Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9434.

A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is warranted if the disability is productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id.

A schedular maximum 100 percent rating is warranted if the disability is productive of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. 

In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation on the basis of social impairment. 

The Board notes that with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment.

The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was certified to the Board in August 2021. As such, the DSM-5 applies, and the GAF scores will not be considered.

Turning to the evidence, the Veteran was afforded a VA examination in March 2015. At that time, the examiner diagnosed depression secondary to service-connected back disorder, and opined his psychiatric symptoms manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported he was currently in his second marriage, had been married for four years, and that his relationship with his wife was "very good." He did not have children with his second wife. He reported he did not have contact with his parents over the past ten years; his older brother suffered from depression and alcohol problems. He denied any psychiatric hospitalizations and was not currently in mental health treatment nor taking psychotropic medications. The Veteran denied having any significant legal history. He was a high school graduate with some college level course work; his last job held was in December 2014 when working part-time in a seasonal job. The Veteran denied any impact in his work performance secondary to mental health issues, and he had reported steady and successful employment over his lifetime until three years prior when he began having significant physical issues that impacted his ability to maintain a job. Symptoms attributable to his psychiatric diagnosis included depressed mood, chronic sleep impairment, and disturbances of motivation and mood. 

At a March 2015 VA examination, the Veteran reported his daily routine included spending half the day searching for jobs online, engaging in projects in the garage, sometimes helping his wife at her restaurant and making meals for patrons, having dinner with his wife, watching television in the evening, and having two full meals per day. His interests included golfing when he was feeling good enough to play. Mental status examination showed the Veteran had difficulties with delayed memory, likely secondary to his depressive symptoms, that he was casually but appropriately dressed, his affect was in full range and his mood mildly dysphoric. His tone and rate of speech within normal limits, his eye contact was good, his motor functioning intact but with difficulties getting up from a seated position and he was cooperative and pleasant throughout. Insight and judgment were found to be adequate, he was a reasonable historian for past and recent history and able to relate history in a logical and sequential manner and he was found to be oriented to date, time, and place. He did not appear to be responding to internal stimuli. Current symptoms reported included a depressed mood, midcycle awakening secondary to pain, low frustration tolerance, felt badly about himself as he had difficulties maintaining work and could not be the breadwinner, difficulties with focus, attention, and recall, a lack of motivation to look for work and daily pain. The Veteran denied post-trauma, anxiety, manic symptoms; he denied panic attacks, auditory or visual hallucinations or delusions, and there were no obsessive or ritualistic behaviors noted. He denied current and present suicidal ideation. 

The March 2015 examiner noted the Veteran's second marriage was supportive, the Veteran was unemployed but seeking work and that the Veteran had held successful employment over his lifetime until worsening of his medical condition. He appeared to have moderate symptoms of depression. The examiner noted the Veteran was able to maintain activities of daily living, to include personal hygiene and he did not have inappropriate behavior currently nor over the past year. The Veteran had never been in treatment nor taken medication for mental health symptoms. Thought processes and communication was shown to be mildly impaired by his depression. His social functioning did not appear to be impaired. 

In a March 2015 addendum to the March 2015 VA examination, the examiner indicated the Veteran was a low risk of suicide due to no current suicidal thoughts. The examiner found the Veteran had moderately severe depression and had feelings of little interest in or pleasure in doing things, feeling down, depressed or hopeless, troubling falling or staying asleep, or sleeping too much, feeling tired or having little energy, and feeling fidgety or restless more than usual nearly every day; and felt bad about yourself or that you are failure or let your family down, or trouble concentrating on things such as reading the newspaper or watching television on more than half the days. 

The Veteran was afforded a VA examination in August 2015. At that time, the examiner diagnosed unspecified depressive disorder secondary to his lumbar ankylosing with fused sacroiliac joints and degenerative joint disease, and opined his psychiatric symptoms manifested in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. Since his March 2015 VA examination, the Veteran reported he continued to live with his wife, watched television, used the computer to look for jobs, built birdhouses in the garage, did laundry and cleaned counters and sinks, and could vacuum slowly. The Veteran stated his marriage was supportive. He did not spend time with friends. The Veteran reported he found a part time job three months prior and only worked two shifts, he continued seeking part-time work but was not finding anything suitable. 

Symptoms attributable to his unspecified depressive disorder in August 2015 included a depressed mood, chronic sleep impairment and mild memory loss, such as forgetting names, directions, or recent events. Behavioral observations showed the Veteran was cooperative with the evaluation, presented as a reliable historian without evidence of exaggeration or minimization and appropriate eye contact. He was noted to be soft spoken and with a normal rate of speech, his mood congruent with thought content and with logical, goal-directed organization of thought. There was no evidence pre-occupations, hallucinations, or delusions; pleasant mood and appropriate affect. Other symptoms included sadness, frustration due to struggles with employment and back pain, good appetite, interfered sleep due to back pain, and some memory difficulty. The examiner noted the Veteran had some difficulty with recent memory and indicated the Veteran would function best in a position that involved simple written instruction. 

The Veteran was afforded a VA examination in June 2017. At that time, the examiner diagnosed depressive disorder due to lumbar ankylosing spondylosis and panic disorder, and opined his psychiatric symptoms manifested in occupational and social impairment with reduced reliability and productivity. At this time, the Veteran reported he lived in his own home with his second wife of seven years. He stated he used to have some friends prior to his marriage, but that as time passed he spent less time with his friends due to family obligations. He also reported a lack of desire to do things and his anxiety about leaving the house have contributed. The Veteran's hobbies included selling collectibles on eBay. 

In June 2017, the Veteran reported his educational and occupational history to include two years of college, working as a warehouse manager until four or five years prior, worked at his most recent job for thirteen years and left due to reallocation of benefits, recalled panic attacks at work with decreased severity at work, and after his warehouse job he opened a high-end antique store. He stated he could not maintain his antique store due to the physical demands. At this time, he reported he would help his wife once a month at her job and had a small amount of pain. Relevant mental health history, in pertinent part, showed the Veteran began psychiatric treatment and that his treating physician indicated his symptoms had become significantly worse in the past year. The Veteran reported he began having panic attacks about six or seven years prior, at least a few times per week or more, and resulted in difficulty leaving the house. Despite his panic attacks, the Veteran pushed himself to leave the house every day but would feel anxiety about possibly falling or being embarrassed in public. The Veteran continued to report moderate symptoms of a depressive disorder, feeling depressed more days than not, and wished he could contribute more to the household. He endorsed occasional feelings of worthlessness without feeling hopeless or helpless. He reported passive thoughts of death but denied suicidal ideation, intent, or plan; he had never attempted suicide. His appetite had gradually diminished over the years. He denied any post-trauma symptoms, obsessions or compulsions, manic or bipolar episodes, psychosis, and homicidal ideation, intents, or plans. 

Symptoms attributable to his unspecified depressive disorder in June 2017 included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. Mental status examination showed the Veteran arrived early, described having anxiety about driving across town; middle aged and dressed and groomed neatly. He was found to be pleasant and congenial, he felt to be open and forthcoming, his mood was mildly dysthymic with congruent and wide-ranging affect and occasionally jovial. His thought process was logical and goal-directed and there no signs or symptoms of psychosis. Speech was normal in terms of rate, volume, fluence, and prosody and motor function was grossly within normal limits with mildly diminished testing results secondary to concentration problems due to depression. His thought processes and communications were not impaired. 

The June 2017 examiner opined the Veteran would be capable of performing simple tasks in a loosely supervised environment. However, due to his panic attacks, the Veteran would be suited for flexible hours with the ability to take breaks as needed. Due to his irritability, the examiner found the Veteran would be best suited for a position that was not public-facing and did not have to deal significantly with coworker interaction. The examiner found that a "work from home" position would be ideal. 

The Board notes that a review of the record shows that the Veteran has received treatment for his unspecified depressive disorder from VA Medical Centers. However, there is no indication from the record that the Veteran's symptoms are worse than those reported in the various records discussed above. 

Based on the foregoing, the Board finds that a rating of 50 percent, but not higher, is warranted prior to June 30, 2017 for unspecified depressive disorder. In this regard, the Board notes that the Veteran had occupational and social impairment with reduced reliability during that time. At his March 2015 and August 2015 VA examinations, the examiners opined that occupational and social impairment was manifested by, at worst, occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. However, the Board notes the Veteran reported in August 2015 that he did not spend any time with friends, remained consistently unemployed although searching for work, and was shown to have moderately severe depression upon examination. Additionally, familial social impairment was demonstrated as the Veteran reported he had a supportive marriage with his second wife but that he had not spoken to his parents in over 10 years. The March 2015 VA examiner indicated the Veteran's social functioning did not appear to be impaired but did not address the Veteran's reports of not having friends or contact with his parents. Additionally, the Board notes that in his June 2017 VA examination, the examiner indicated the Veteran's psychiatric treatment provider had indicated the Veteran's depressive symptoms had significantly worsened over at least the past year and had begun approximately five years prior. Moreover, at his June 2017 VA examination, the Veteran reported that he experienced panic attack symptoms six or seven years prior but did not describe such symptoms at his March 2015 and August 2015 VA examinations. The Board notes that the Veteran reported he experienced significant panic attacks, occurring several times a week in his December 2015 notice of disagreement, which is consistent with his reports that his panic attack symptoms began prior to June 2017. Moreover, although the March 2015 and August 2015 VA examiners found the Veteran's occupational and social impairment was less than that of reduced reliability, they both acknowledged the Veteran's depressive symptoms were moderately severe, and resulted in disturbances in motivation and mood, and that he did not have social relationships outside of his wife. Additionally, the March 2015 VA addendum report shows the Veteran experienced significant symptoms on a nearly daily basis of feelings of little interest in or pleasure in doing things, feeling down, depressed or hopeless, troubling falling or staying asleep, or sleeping too much, feeling tired or having little energy, and feeling fidgety or restless more than usual; and that he felt bad about yourself or that you are failure or let your family down, or trouble concentrating on things such as reading the newspaper or watching television on more than half the days. Therefore, resolving all doubt in favor of the Veteran, the Board finds that the symptoms described more closely approximate occupational and social impairment with reduced reliability prior to June 30, 2017, for unspecified depressive disorder, to warrant a 50 percent rating for this period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9435.

The Board finds that the Veteran is not entitled to a 70 percent rating at any time during the period on appeal for his unspecified depressive disorder. In this regard, the Board notes that the Veteran did not have occupational and social impairment with deficiencies in most areas at any time. Impairment to mood was demonstrated as the Veteran reported anxiety and depression. There is no evidence that the Veteran had significant difficulty with speech, insight, or judgment; therefore, impairment to judgment was not demonstrated. Impairment to thinking was not demonstrated as the Veteran consistently denied hallucinations or delusions Further, while the Veteran was noted to have occupational impairment, it was primarily the result of physical limitations caused by other disabilities. While the Board acknowledges that the Veteran experienced disturbances in motivation and mood as a result of his unspecified depressive disorder, the impairment caused by such was not severe. In fact, the Veteran consistently reported he was seeking employment and could help his wife on occasion at her work. Moreover, the Veteran reported having a part-time job that was seasonal during the period on appeal, and that he was able to hold his most recent full-time employment for thirteen years but left due to changes in management policies. Additionally, the Veteran himself endorsed a good relationship with his wife and reported that his marriage was supportive. School was not attempted during the appeal there. Therefore, a 70 percent rating is not warranted unspecified depressive disorder at any time during the appeal period.

In addition, a higher 100 percent rating is not warranted at any time during the period on appeal for his unspecified depressive disorder. Total social impairment was not demonstrated because the Veteran maintained a relationship with his wife. He reported mild memory loss or memory difficulties but did not report memory loss for names of close relatives, his own occupation, or his own name. Furthermore, there were no reports of delusions or hallucinations. He did not have gross impairment in thought processes or communication, and it was not reported that he had a disorientation to time or place. The Veteran was not in persistent danger of hurting himself or others as he consistently denied suicidal and homicidal ideations and did not have grossly inappropriate behavior. Therefore, a 100 percent rating is not warranted for the appeal period.

While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, supra. Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability considering the rating criteria to be more persuasive than the Veteran's reports regarding the severity of his condition. Despite the foregoing, the Board acknowledges the Veteran's assertions that his various symptoms and functional impairments warrant a higher rating due to panic attacks, weak memory, confusion, and taking a lot of medications. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a higher rating are not met. The Rating Schedule contemplates such impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, supra. This argument is therefore without merit. 

The Board has considered whether a staged rating under Fenderson v. West, supra is appropriate; however, the Board finds that his symptomatology was been stable throughout the appeal period. Therefore, assigning a staged rating is not warranted. The Veteran nor his representative have not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, supra.

Accordingly, the Board finds the preponderance of evidence is for the assignment of a 50 percent rating, but not higher, prior to June 30, 2017 for the Veteran's unspecified depressive disorder. To that extent, the appeal is granted. However, the evidence is against the claim for a rating in excess of 50 percent at any time during the period on appeal for unspecified depressive disorder. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

3. Bilateral Hips

The Veteran seeks higher ratings for his service connected bilateral hips based on external rotation, flexion, and extension. Specifically, the Veteran asserts this his hips result in inability to cross his legs, significant pain that radiates from his groin to his ankle, inflammation, and worsening symptoms. See Notice of Disagreement, December 28, 2015. Additionally, the Veteran asserts that his bilateral hip rotation continued to worsen, had significant pain, and that the condition had not improved as indicated by the VA examiner. See Notice of Disagreement, April 28, 2016. The Veteran's representative argued that the service-connected bilateral hip labral degeneration with sacroiliac joint obliteration and hip strains warranted higher ratings based on August 2015 and May 2017 VA examination reports. See Appellate Brief, November 15, 2018. 

The Veteran's left hip flexion is rated as noncompensable under Diagnostic Code 5252; his left hip extension is rated as 10 percent disabling under Diagnostic Code 5010-5251; and his left hip rotation is rated as noncompensable prior to July 28, 2014, 10 percent from July 28, 2014 to July 1, 2016, noncompensable from July 1, 2016 to October 6, 2020, and 10 percent thereafter under Diagnostic Code 5253. The Veteran's right hip flexion is rated as noncompensable under Diagnostic Code 5010-5252; his right hip extension is rated as 10 percent disabling under Diagnostic Code 5010-5251; and his right hip rotation is rated as noncompensable prior to July 28, 2014, 10 percent from July 28, 2014 to July 1, 2016, noncompensable from July 1, 2016 to October 6, 2020, and 10 percent thereafter under Diagnostic Code 5010-5253. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the present case, the Veteran's claims for increased ratings stem from a claim filed in July 2015 and there is no relevant evidence related to the hip or thigh dated after February 7, 2021. Moreover, Diagnostic Codes 5251, 5252 and 5253 are unchanged under the revised criteria. Therefore, the February 2021 musculoskeletal criteria do not apply to the Veteran's claims on appeal and the appropriate criteria are discussed below. 

Disabilities of the hip are evaluated under the General Rating Formula for Rating Diseases and Injuries of the Hip and Thigh. 38 C.F.R. § 4.71a, Diagnostic Codes 5250-5253. The criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating diseases and injuries of the hip as follows:

Diagnostic Code 5250 provides a 60 percent rating for favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees and slight adduction or abduction; a 70 percent rating for intermediate ankylosis; and a 90 percent rating for extremely unfavorable ankylosis, with the foot not reaching the ground, or necessitating crutches. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5251, limitation of extension of the thigh, a 10 percent rating is assigned for extension limited to 5 degrees. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5252, limitation of flexion of the thigh, a 10 percent rating is assigned for flexion limited to 45 degrees. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned where flexion is limited to 30 degrees; 30 percent where flexion is limited to 20 degrees; and 40 percent where flexion is limited to 10 degrees. Id.

Under Diagnostic Code 5253, impairment of the thigh, a 10 percent rating is assigned for limitation of rotation of the affected leg with an inability to toe-out more than 15 degrees and limitation of adduction where the legs cannot be crossed. 38 C.F.R. § 4.71a. A 20 percent rating is assigned for limitation of abduction with motion lost beyond 10 degrees. Id.

The Schedule provides that the normal flexion of the hip is from zero degrees to 125 degrees and normal abduction of the hip is from zero degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. Id. at Diagnostic Code 5003.

Turning to the evidence, the Veteran was afforded a VA examination in March 2015. At that time, the examiner diagnosed right hip osteoarthritis, left hip labral degeneration, bilateral hip strain, and bilateral sacroiliac joint obliteration due to ankylosing. The Veteran reported arthralgias in his bilateral knees, hips, and heels. He stated his hip pain started in 1992, and that he had taken a lot of anti-inflammatories over the course of his conditions. He denied physical therapy, chiropractic, injections, and surgical treatment. He reported his hips were a constant problem rather than episodic (flares). He denied loss of activities of daily livings. The Veteran denied flare-ups of the bilateral hips. He reported functional loss or functional impairment described as being in a poor position, inability to maintain employment, limited physical activities, limited in golf and softball, taking a lot of pain medications, sore from sitting still in the chair, and disrupted sleep due to requiring repositioning. 

Upon physical examination in March 2015, range of motion measurements of the bilateral hips were as follows: flexion was to 100 degrees each; extension was to 5 degrees each; abduction was to 30 degrees each; adduction was to 20 degrees each; external rotation was to 30 degrees each; and internal rotation was to 10 degrees each. Adduction was not limited such that the Veteran could not cross his legs. The limited range of motion did not itself contribute to a functional loss. Pain was noted on all range of motion movements and caused a functional loss in the bilateral hips. There was evidence of pain with weight-bearing in the bilateral hips; there was no objective evidence of localized tenderness or pain on palpation of the joints. The Veteran was able to perform repetitive-use testing with at least three repetitions bilaterally; there was no additional loss of function or range of motion after three repetitions in either hip. Pain contributed to functional loss. 

In March 2015, the Veteran was not examined immediately after repetitive-use over time; the examination neither supported nor contradicted the Veteran's statements describing functional loss with repetitive-use over time. Pain, fatigue, and lack of endurance were shown to cause a functional loss with repetitive-use. The examiner was able to describe in terms of range of motion as follows: flexion to 80 degrees each; extension to 0 degrees each; abduction to 20 degrees each; adduction to 10 degrees each; external rotation to 20 degrees each; and internal rotation to 0 degrees each. Post-test adduction did not limit such that the Veteran could not cross his legs. The examination was not conducted during a flare-up and the Veteran denied flare-ups of the bilateral hips. Additional factors contributing to the disability included less movement than normal; instability of station; disturbance of locomotion; interference with sitting; and interference with standing bilaterally. 

Muscle strength testing in March 2015 showed normal muscle strength. There was not a reduction of muscle strength in either hip. There was no ankylosis shown in the bilateral hips, but the examiner noted the Veteran had ankylosing spondylitis which involved the joints as well as the spine. The Veteran did not have malunion or nonunion of femur, flail hip joint or leg length discrepancy of either hip. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran denied the use of any assistive device as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. Diagnostic imaging studies showed degenerative or traumatic arthritis of the right hip. There was objective evidence of bilateral crepitus. The examiner noted the Veteran's hips would impact his ability to work due to limited in any vocation that involved prolonged sitting, walking, standing, lifting or carrying; and that his hips would be exacerbated by over use. The examiner remarked the Veteran's gait was stiff and slow, slightly forward bend in the lower back region, and without significant forward head positioning. 

The Veteran was afforded a VA examination in August 2015. At that time, the examiner diagnosed left hip labral degeneration with sacroiliac joint obliteration and hip strain (flexion); right hip osteoarthritis with sacroiliac joint obliteration and hip strain (flexion); right hip osteoarthritis with sacroiliac joint obliteration and hip strain (thigh impairment  rotation); left hip labral degeneration with sacroiliac joint obliteration and hip strain (thigh impairment  rotation); right hip osteoarthritis with sacroiliac joint obliteration and hip strain (extension); and left hip labral degeneration with sacroiliac joint obliteration and hip strain). The Veteran reported multiple joint aches in his hips, that his conditions had progressed, and that he was more mobile with medication. He reported daily pain. The Veteran denied flare-ups of the hips or thighs. He reported functional loss or functional impairment as inability to walk a quarter of a block, and that standing was limited to 30 minutes before needing a break.

Upon physical examination, range of motion measurements in August 2015 of the left hip were as follows: flexion was to 90 degrees; extension was to 25 degrees; abduction was to 30 degrees; adduction was to 20 degrees; external rotation was to 40 degrees; and internal rotation was to 40 degrees. Range of motion measurements of the right hip were as follows: flexion was to 90 degrees; extension was to 5 degrees; abduction was to 20 degrees; adduction was to 20 degrees; external rotation was to 30 degrees; and internal rotation was to 30 degrees. Adduction was not limited such that the Veteran could not cross his legs on either hip. Range of motion itself was not shown to contribute to a functional loss. Pain was noted on all ranges of motion bilaterally; there was objective evidence of localized tenderness or pain on palpation of the hips. The Veteran winced on examination, and the severity was moderate bilaterally. There was no evidence of pain with weight-bearing. There was no objective evidence of crepitus. 

In August 2015, the Veteran was not able to perform repetitive-use testing with at least three repetitions due to too much discomfort bilaterally. The Veteran was not examined immediately after repetitive-use testing; the examination was medically consistent with the Veteran's statements describing functional loss with repetitive-use over time. Pain, weakness, and lack of endurance caused this functional loss in the bilateral hips. The examiner was unable to describe this in terms of range of motion because it could not be replicated. Additional factors contributing to the disability included instability of station, disturbance of locomotion, interference with sitting, and interference with standing bilaterally; and less movement than normal on the left hip only. 

Muscle strength testing in August 2015 showed active movement against some resistance in bilateral flexion, extension, and abduction; there was a reduction in muscle strength to both hips entirely due to the claimed conditions. The Veteran did not have muscle atrophy. The Veteran did not have ankylosis of either hip. The Veteran did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy in either hip. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran denied the use of any assistive device as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The examiner noted the Veteran's bilateral hips would impact his ability to work due to decreased walking and standing; sitting was "ok" with repositioning every 30 minutes; and inability to sleep longer than three hours due to requiring repositioning. The examiner remarked the Veteran reported daily pain. 

The Veteran was afforded a VA examination in May 2017. At that time, the Veteran reported his conditions had progressed; limited movements in the hips; pain and stiffness with movements; required re-positioning frequently to relieve pressure and stiffness in the hips; and sleep disturbance due to hip pain. The Veteran's treatment included injections every 10 days, oral anti-inflammatories, and that his symptoms were somewhat controlled. His hip joint space was maintained; normal alignment and femoral head contour were shown; he had an intact regional bones; and obliteration of the right sacroiliac joint was showed. The Veteran endorsed flare-ups of the bilateral hips described as severe pain. He reported functional loss or functional impairment of the hips described as inability to sit or stand for prolonged periods due to worsening hip pain. 

Upon physical examination, range of motion measurements in May 2017 of the left hip were as follows: flexion was to 105 degrees; extension was to 15 degrees; abduction was to 35 degrees; adduction was to 25 degrees; external rotation was to 35 degrees; and internal rotation was to 25 degrees. Range of motion measurements of the right hip were as follows: flexion was to 100 degrees; extension was to 10 degrees; abduction was to 30 degrees; adduction was to 15 degrees; external rotation was to 30 degrees; and internal rotation was to 20 degrees. Adduction was not limited such that the Veteran could not cross his legs on either hip. Range of motion itself was not shown to contribute to a functional loss. Pain was noted on flexion, extension, and external rotation bilaterally, and internal rotation of the left hip; pain did not result in or cause a functional loss in either hip. There was objective evidence of localized tenderness or pain on palpation of the hips. Tenderness to palpation was voiced over the bilateral sacroiliac joints and soft tissue; severity was mild to moderate on the right side and mild on the left side. There was evidence of pain with weight-bearing bilaterally. There was objective evidence of crepitus bilaterally. 

In May 2017, the Veteran was able to perform repetitive-use testing bilaterally; there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive-use over time or during a flare-up; the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive-use over time and/or during flare-ups. The examiner could not state without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive-use over time and/or during flare-ups because the Veteran was not examined immediately after repetitive-use over time or during a flare-up. There were no additional factors contributing to the disability. 

Muscle strength testing in May 2017 showed normal muscle strength; there was no reduction in muscle strength. The Veteran did not have muscle atrophy. The Veteran did not have ankylosis. The Veteran did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy in either hip. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran denied the use of any assistive device as a normal mode of locomotion. The examiner noted the Veteran's bilateral hips would impact his ability to work due to limited prolonged staying in one position and weight-bearing. There was no objective evidence of pain on nonweight-bearing bilaterally. Passive range of motion measurements were the same as active range of motion measurements in both hips. The examiner remarked there was a worsening of the Veteran's symptoms without change in diagnoses. The examiner noted the Veteran was capable of performing light sedentary work and/or mild physical labor type of duties that would not require repetitive carrying or lifting over 15-20 pounds, prolonged weight-bearing, or walking on an incline or stairs. 

The Veteran was afforded a VA examination in October 2020. At that time, the examiner diagnosed bilateral femoral acetabular impingement syndrome (includes labral tears); bilateral degenerative arthritis, and right hip osteoarthritis with sacroiliac joint obliteration and hip strain (extension). The Veteran reported worsening pain and stiffness; taking medications to treat his hips; pain described as a 9 out of 10 pain intensity when just walking into the office; inability to walk to his PO box; and minimal improvement with treatment. The Veteran denied flare-ups of the hips or thighs. He described functional loss or functional impairment as inability to walk long distances without stopping due to pain and stiffness in the bilateral hips. 

Upon physical examination in October 2020, range of motion measurements of the left hip were as follows: flexion was to 85 degrees; extension was to 5 degrees; abduction was to 20 degrees; adduction was to 20 degrees; external rotation was to 20 degrees; and internal rotation was to 20 degrees. Range of motion measurements of the right hip were as follows: flexion was to 95 degrees; extension was to 5 degrees; abduction was to 15 degrees; adduction was to 15 degrees; external rotation was to 20 degrees; and internal rotation was to 15 degrees. Adduction was not limited such that the Veteran could not cross his legs in either hip. Range of motion itself contributed to a functional loss due to inability to bend over and tie his shoes, or bring his foot to his hands while in a seated position. Pain was noted on all ranges of motion bilaterally. There was no objective evidence of localized tenderness or pain on palpation of the hips. There was evidence of pain with weight-bearing bilaterally. There was no objective evidence of crepitus in either hip. 

In October 2020, the Veteran was able to perform repetitive-use testing for both hips; there was no additional loss of function or range of motion after three repetitions in either hip. There were no factors that caused a functional loss in the right hip. Pain, fatigue, and weakness were shown to cause a functional loss in the left hip. The Veteran was not examined immediately after repetitive-use over time; the examination was medically consistent with the Veteran's statements describing functional loss with repetitive-use over time for both hips. Pain, fatigue, and weakness were shown to cause this functional loss bilaterally. The examiner was able to describe in terms of range of motion for the right hips as follows: flexion to 85 degrees; extension to 5 degrees; abduction to 15 degrees; adduction to 15 degrees; external rotation to 15 degrees; and internal rotation to 15 degrees. The examiner was able to describe in terms of range of motion for the left hip as follows: flexion to 80 degrees; extension to 5 degrees; abduction to 15 degrees; adduction to 15 degrees; external rotation to 15 degrees; and internal rotation to 15 degrees. Post-test adduction was not limited such that the Veteran could not cross his legs in either hip. There were no additional factors contributing to the disability bilaterally. 

Muscle strength testing in October 2020 showed active movement against gravity in the bilateral flexion, extension, and abduction. There was a reduction of muscle strength that was not entirely due to the claimed conditions. The examiner noted the Veteran also had a diagnosis of ankylosing spondylitis of the lumbar spine and fused sacroiliac joints. The Veteran did not have muscle atrophy. There was no ankylosis in either hip. The Veteran did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy in either hip. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran endorsed the regular use of a walker as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The examiner noted the Veteran's bilateral hips impacted his ability to work due to being a retired warehouse manager; lost 0-1 week of work time in the past 12 months; pain and stiffness related to the bilateral hips prevented the Veteran from performing essential duties such as walking long distances and standing long periods in the warehouse, and he was unable to keep up and his productivity suffered. There was objective evidence of pain on passive range of motion testing bilaterally. There was objective evidence of pain when the bilateral hip joints were used in nonweight-bearing. 

Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities. However, there is no indication from the treatment notes of record that the Veteran has reported hip or thigh symptoms or range of motion measurements that are worse than those noted above. 

Based on the foregoing, the Board finds that the Veteran is not entitled to compensable ratings for his left hip flexion and right hip flexion. In this regard, the Veteran's left and right hip flexion was not shown to be limited to 45 degrees at any time during the period on appeal so as to warrant a compensable rating. Rather, the Veteran's left hip flexion was to 85 degrees, and right hip flexion was to 95 degrees, both at worst, at the October 2020 VA examination. Even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the Board finds that he is not entitled to compensable ratings under Diagnostic Code 5252. Specifically, as demonstrated on examinations, the Veteran was shown to have pain on motion, but there is no indication that such resulted in additional functional loss, to include a greater loss of flexion at any time. Additionally, the Veteran denied flare-ups at all VA examinations, with the exception of the May 2017 VA examination, and did not indicate that he experienced further range of motion limitations at all of his VA examinations. Therefore, the evidence does not demonstrate limitation of flexion of either hip limited to 45 degrees at any time during the period on appeal. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra. Therefore, the Veteran is not entitled to compensable ratings for his left hip based on flexion and right hip based on flexion under Diagnostic Code 5252 at any time during the period on appeal.

The Board finds the Veteran is not entitled to ratings in excess of 10 percent for his left hip extension and for his right hip extension. Diagnostic Code 5251 provides a maximum rating of 10 percent for hip extension limited to 5 degrees. 38 § 4.71a, Diagnostic Code 5251. As there is no adequate legal basis upon which to award ratings in excess of 10 percent for either hip based on limitation of extension, the Veteran's claims for a higher schedular rating must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board finds the Veteran is not entitled to compensable ratings for his bilateral hip rotation for the appeal period prior to July 28, 2014. In this regard, there is simply no evidence to show the Veteran had limitation of rotation of the affected leg with an inability to toe-out more than 15 degrees and limitation of adduction where the legs cannot be crossed so as to warrant a compensable rating prior to July 28, 2014. The Board notes that the claims file is absent any updated or continuing treatment records that are relevant to the time period on appeal, nor is there any evidence relevant to the severity of the Veteran's conditions. Even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the Board finds that he is not entitled to a compensable rating for his bilateral hips based on rotation under Diagnostic Code 5253. In this regard, there is simply no medical evidence to show that the Veteran's disabilities have manifested in symptoms that warrant higher ratings at any time prior to July 28, 2014. In this regard, there is no medical evidence to show the nature and severity of the Veteran's disabilities during the period on appeal, nor was there any lay evidence submitted by the Veteran with respect to his symptoms. Therefore, the Board finds that the evidence does not demonstrate that his left hip rotation and right hip rotation warranted a compensable rating prior to July 28, 2014. Therefore, the evidence does not demonstrate limitation of rotation of either hip with an inability to toe-out more than 15 degrees and limitation of adduction where the legs cannot be crossed to warrant a compensable 10 percent rating. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra. Therefore, the Veteran is not entitled to a compensable rating prior to July 28, 2014 for his left hip based on rotation and right hip based on rotation under Diagnostic Code 5253.

The Board finds the Veteran is not entitled to ratings in excess of 10 percent for his bilateral hip rotation for the appeal period from July 28, 2014 to July 1, 2016. In this regard, the Veteran's abduction was not shown to have motion lost beyond 10 degrees at any time during the period on appeal so as to warrant a higher 20 percent rating. Rather, the Veteran's left hip abduction was to 30 degrees, left hip adduction was to 20 degrees, right hip abduction was to 20 degrees, and right hip adduction was to 20 degrees, all at worst, at the August 2015 VA examination. Even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the Board finds that he is not entitled to ratings in excess of 10 percent under Diagnostic Code 5253. Specifically, as demonstrated during the March 2015 and August 2015 VA examinations, the Veteran had pain on motion, but there is no indication that such resulted in additional functional loss, to include a greater loss of adduction or abduction. Notably, the March 2015 and August 2015 VA examination reports indicate the Veteran did not have limitation of adduction where the legs could not be crossed at any time during this period on appeal. Additionally, the Veteran denied flare-ups at both March 2015 and August 2015 VA examinations, and did not indicate that he experienced further range of motion limitations at either VA examination. Therefore, the evidence does not demonstrate limitation of abduction with motion lost beyond 10 degrees to warrant a higher 20 percent rating. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra. Therefore, the Veteran is not entitled to a rating in excess of 10 percent from July 28, 2014 to July 1, 2016 for his left hip based on rotation and right hip based on rotation under Diagnostic Code 5253.

The Board finds the Veteran is not entitled to compensable ratings for his bilateral hip rotation from July 1, 2016 to October 6, 2020. In this regard, the evidence does not show the Veteran had limitation of rotation of the affected leg with an inability to toe-out more than 15 degrees and limitation of adduction where the legs cannot be crossed so as to warrant a compensable rating from July 1, 2016 to October 6, 2020. In this regard, the Veteran was shown to have left hip abduction to 35 degrees, left hip adduction to 25 degrees, right hip abduction to 30 degrees, and right hip adduction to 15 degrees, all at worst, at his May 2017 VA examination. Even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the Board finds that he is not entitled to compensable ratings under Diagnostic Code 5253. Specifically, as demonstrated during the May 2017 VA examination, the Veteran had pain on motion, but there is no indication that such resulted in additional functional loss, to include a greater loss of adduction or abduction. Notably, the VA examination reports indicate the Veteran did not have limitation of adduction where the legs could not be crossed at any time during this period on appeal. Additionally, the Veteran reported flare-ups at his May 2017 VA examination that manifested in severe pain, and he reported functional loss as an inability to sit or stand for prolonged periods due to worsening hip pain. The Veteran did not report, and the evidence does not show, that he had greater limitation of range of motion during flares than shown on examination. Therefore, the evidence does not demonstrate limitation of rotation of the affected leg with an inability to toe-out more than 15 degrees and limitation of adduction where the legs cannot be crossed so as to warrant a compensable rating from July 1, 2016 to October 6, 2020. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra. Therefore, the Veteran is not entitled to a compensable rating under Diagnostic Code 5253 from July 1, 2016 to October 6, 2020 for his left hip based on rotation and right hip based on rotation.

The Board finds the Veteran is not entitled to ratings in excess of 10 percent for his bilateral hip rotation beginning October 6, 2020. In this regard, the Veteran's abduction was not shown to have motion lost beyond 10 degrees at any time during the period on appeal so as to warrant a higher 20 percent rating. Rather, the Veteran's left hip abduction was to 20 degrees, left hip adduction was to 20 degrees, right hip abduction was to 15 degrees, and right hip adduction was to 15 degrees, all at worst, at the October 2020 VA examination. Even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the Board finds that he is not entitled to ratings in excess of 10 percent under Diagnostic Code 5253. Specifically, as demonstrated during the October 2020 VA examinations, the Veteran had pain on motion, but there is no indication that such resulted in additional functional loss, to include a greater loss of adduction or abduction. Notably, the VA examination reports indicate the Veteran did not have limitation of adduction where the legs could not be crossed at any time during this period on appeal. Additionally, the Veteran denied flare-ups at his October 2020 VA examination, and did not indicate that he experienced further range of motion limitations at his VA examination. Therefore, the evidence does not demonstrate limitation of abduction with motion lost beyond 10 degrees to warrant a higher 20 percent rating. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra. Therefore, the Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Code 5253 beginning October 6, 2020 for his left hip based on rotation and right hip based on rotation.

Moreover, a higher or separate rating not warranted under any other applicable diagnostic code for his left and right hip disorders. The record does not establish, and the Veteran has not alleged a flail joint of the hip, a fracture of the shaft or anatomical neck of the femur, nonunion of the femur, a false joint resulting from a fracture of the surgical neck, or malunion of the femur. Further, as the Veteran has retained motion in his right hip and thigh throughout the period on appeal, by definition he does not have ankylosis. See Dinsay v. Brown, supra; Lewis v. Derwinski, supra. Thus, higher or separate ratings under such Diagnostic Codes 5250, 5254 or 5255 are not warranted.

Here, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. In this case, the March 2015, August 2015, and May 2017 VA examinations were conducted prior to Correia and Sharp and provides only partial information as described above. The October 2020 VA examination measured active and passive range of motion and range of motion on repetitive use testing as well as range of motion on weight-bearing and nonweight-bearing; the effect of pain on range of motion is described above. Although the May 2017 VA examination as well as the earlier examinations did not address passive range of motion, the Board notes that active range of motion testing usually results in further limitation than passive range of motion testing. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). With regards to flare-ups, the Veteran denied experiencing such flare-ups in the March 2015, August 2015, and October 2020 VA examinations. Sharp v. Shulkin, supra. Although the Veteran endorsed flare-ups of his bilateral hips at the May 2017 VA examination, his reports of additional functional loss associated with the flare-ups as described above. Therefore, March 2015, August 2015, May 2017, and October 2020 VA examinations are adequate for adjudication purposes. 

In reaching its conclusions, the Board acknowledges the Veteran's belief that his bilateral hip and thigh symptoms are more severe than is reflected by the currently assigned disability ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, supra. The Board acknowledges the Veteran's contentions that his hips result in inability to cross his legs, significant pain that radiates from his groin to his ankle, inflammation, and worsening symptoms; that his hip pain had not improved; and the contentions of his attorney that his hip disorders warranted higher ratings based on the VA examination reports associated with his claims file. Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of his bilateral hips based on limitation of extension, flexion, and rotation. These arguments are therefore without merit.

In addition, the Board is cognizant of the holding in Saunders, namely, that pain itself can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Here, similarly to Saunders, the Veteran has demonstrated that his claimed left and right hip disorders result in an impairment of earning capacity or other functional impairment. As such, Saunders is applicable to the case currently before the Board. However, for the periods and disorders that the Veteran is rated as noncompensable (left and right hip flexion for the entire period on appeal and left and right hip rotation prior to July 28, 2014, and from July 1, 2016 to October 6, 2020), the Veteran is already compensated for his left and right hip pain. The Veteran is therefore already service-connected for his left and right hip pain. The Board notes it cannot "pyramid," or issue separate evaluations for two or more disabilities with duplicative or overlapping symptoms. 38 C.F.R. § 4.14. In short, no "extra" rating is available for arthritic pain limiting motion for these periods on appeal and disorders, as this would "pyramid" one effectively identical diagnosis upon another, i.e., the rating for limitation of the left and right hip motion under Diagnostic Codes 5251, 5252, 5253. See 38 C.F.R. § 4.71.

The Board has considered whether further staged rating under Hart v. Mansfield, supra, are warranted, however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, supra.

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of compensable ratings for the right and left hips based on limitation of extension; the assignment of ratings in excess of 10 percent for the right and left hips based on limitation of flexion; and the assignment of compensable ratings for the right and left hips prior to July 28, 2014, ratings in excess of 10 percent from July 28, 2014 to July 1, 2016, compensable ratings from July 1, 2016 to October 6, 20201, and ratings in excess of 10 percent thereafter for the right and left hips based on limitation of rotation. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

REASONS FOR REMAND

1. Entitlement to a TDIU for the appeal period prior to June 30, 2017

The Veteran asserts he is entitled to a TDIU due to a combination of his service-connected disabilities, to include tinnitus, bilateral hips, bilateral iritis, and lumbar ankylosing spondylitis. See e.g. VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, July 25, 2015.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b).

In the instant case, the Veteran's combined rating is noncompensable prior to March 22, 2011; 10 percent from March 22, 2011 to January 10, 2013; 20 percent from January 10, 2013 to August 25, 2013; 40 percent from August 25, 2013 to July 28, 2014; 70 percent from July 28, 2014 to July 1, 2016; and 60 percent from July 1, 2016 to June 30, 2017. Thus, the schedular criteria for a TDIU have not been met at any time prior to June 30, 2017. 

After a thorough review of the evidence of record, the Board finds that remand is warranted for referral to the Director of the Compensation Service for consideration of a TDIU for the appeal period prior to June 30, 2017 on an extraschedular basis. In relevant part, the record suggests that the Veteran had difficulty sitting, standing, concentrating, focusing, and sleeping due to his service-connected disabilities. Specifically, the Veteran contends that he was unable to work because he could not perform the functions of his job, that included walking the warehouse and interacting with coworkers.  Accordingly, in light of these limitations, the AOJ is instructed to refer the TDIU claim to the Director of the Compensation Service for extraschedular consideration. 

The matter is REMANDED for the following action:

1. The AOJ should submit the claim for a TDIU to the Director of Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). 

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2. Thereafter, the claim should be readjudicated. If the claim remains denied, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and provided with the appropriate opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review.

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mariah N. Sim, 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.