Citation Nr: 21077165 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 11-02 055 DATE: December 28, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for traumatic arthritis, left hip is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left hip arthritis was manifested by pain and limitation of motion; it was not manifested by flexion to 30 degrees or less, even considering pain on use and during flare-ups. 2. The Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for traumatic arthritis, left hip are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5252. 2. The criteria for entitlement to a TDIU are met. 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1982 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This matter has previously been before the Board, most recently in October 2020. At that time, among other things, the claim for an increased rating for the Veteran's left hip disability was remanded to provide the Veteran with an adequate VA examination assessing the current nature and severity of his left hip disability. As the record reflects that the Veteran was provided an adequate VA examination following the Board's decision, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a disability rating in excess of 10 percent for traumatic arthritis, left hip Generally, disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board notes that, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Under the revised rating criteria for Diagnostic Code 5255, impairment of the femur warrants a 60 percent for fracture of the shaft or anatomical neck with nonunion, without loose motion, weightbearing preserved with aid of brace; and the highest rating of 80 percent is warranted for fracture of shaft or anatomical neck with nonunion, with loose motion (spiral or oblique fracture). However, the Diagnostic Codes for limitation of motion of the hip were unaffected by the February 7, 2021 regulatory changes. The Board recognizes that, in some circumstances, it must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination when deciding an appropriate rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; De Luca v Brown, 8 Vet. App. 202, 204-7 (1995). The Veteran contends that he is entitled to a left hip rating in excess of 10 percent based on his pain and limitation of motion. The Veteran's 10 percent disability rating is assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5252. VA received the Veteran's claim for increased ratings for his hip disability on October 9, 2007. In order to warrant a rating in excess of or in addition to the Veteran's current 10 percent rating, the evidence must show: Favorable ankylosis of the hip in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction (60 percent under DC 5250); Limitation of extension of the thigh to 5 degrees (10 percent under DC 5251); Limitation of flexion of the thigh to 30 degrees (20 percent under DC 5252); Impairment of thigh abduction to 10 degrees or less (20 percent under DC 5353); Impairment of thigh adduction such that the legs cannot be crossed (10 percent under DC 5353); or Impairment of rotation of the thigh such that the affected leg cannot toe-out more than 15 degrees (10 percent under DC 5353). As the Veteran does not have a flail joint of the hip or impairment of the femur, DCs 5254 and 5255 are not for application. After a review of the evidence, the Board determines that a rating in excess of or in addition to the current 10 percent is not warranted. As noted, this matter was most recently remanded for an adequate VA examination and the Board finds the June 2021 examination adequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158, 166 (2016). Therefore, the Board will solely address the findings of that examination. The Veteran reported to the June 2021 VA examiner that he experienced flare-ups every few days for several hours that were triggered by prolonged walking and standing and resulted in "more pain." Active and passive range of motion was measured to 90 degrees flexion, 25 degrees extension, 30 degrees abduction, 15 degrees adduction, 50 degrees external rotation and 30 degrees internal rotation. The examiner noted pain on all movements and that the Veteran was not prevented from crossing his legs. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion and the examiner noted that the Veteran's flareups and repeated use over time did not significantly limit functional ability. The examiner noted that there was no femur or flail joint impairment and no ankylosis. VA treatment records reflect complaints of hip pain. Range of motion was noted the be normal in an August 2007 VA treatment note. June 2009 and April 2010 private treatment notes document the Veteran as having full range of motion in the hips. A June 2010 evaluation for Social Security noted range of motion was 100 degrees flexion, 30 degrees extension, 40 degrees abduction, 20 degrees adduction, 50 degrees external rotation and 40 degrees internal rotation. The Board finds the June 2021 VA examination to be probative of the issue on appeal as the examiner's opinion is predicated on a full understanding of the Veteran's medical history and provides enough evidentiary basis for the claim to be adjudicated. Turning to the question of whether any diagnostic code may result in a higher rating for the Veteran's left hip, the Board finds that that it does not. First, there is no evidence of record of hip ankylosis to support the application of DC 5250. Although the Veteran's left hip disability does manifest in some limitation of motion from pain, there is no evidence it is in a fixed position without motion at any degree or angle. As noted, there is also no evidence of flail joint to support the application of DC 5254, and no evidence of malunion or fracture of the femur to support the application of DC 5255. With respect to limitation of motion, there is no evidence of record that the Veteran's hip flexion is limited to 30 degrees or less to support a higher rating under DC 5252, or that he has limitation of abduction of the thigh to 10 degrees or less under DC 5253. There is also no evidence of record supporting extension limited to 5 degrees or greater, limited adduction such that the legs cannot be crossed, or limited rotation such that the Veteran cannot toe-out the left leg more than 15 degrees such that additional compensable ratings may be warranted under DCs 5251 and 5253. The Board has considered whether a higher rating is warranted under the criteria of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45. However, there is no indication in the medical evidence of record, to include VA examination reports and treatment records, that any subjective complaints, such as pain, fatigue, incoordination, or weakness, result in additional limitation of function so as to meet the criteria for any higher ratings. While there is evidence of painful movement, it has not been demonstrated to be so significant to cause sufficient functional limitation as to warrant any higher ratings. The preponderance of evidence is against a finding that the left hip disability has ever shown limitation of flexion to 20 degrees or worse, even considering repeated use over time and flare-ups. The most recent VA examination shows flexion limited to, at worse, 90 degrees, with no additional loss of range of motion during flare-ups or after repeated use over time. These results are consistent with the range of motion measurements in the Veteran's private treatment records and a June 2010 examination for Social Security. The Board also finds that the probative value of the objective evidence set forth in the VA examination and treatment records outweighs the subjective lay assertions of the Veteran. While the Veteran is capable of reporting his observable symptoms, there is no indication in the record that he has the relevant medical knowledge, education or training to assess the objective criteria required for a higher rating. See Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a higher rating for the Veteran's left hip disability. As the preponderance of evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU In order to be entitled to a TDIU, the evidence must show that the Veteran was incapable "of performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Here, the Veteran has a combined 70 percent rating from June 29, 2007, which included a 40 percent disability rating for right elbow strain. The Veteran has a combined 90 percent disability rating as of May 4, 2021, based on a 50 percent rating for migraine headaches, a 40 percent rating for right elbow strain, a 20 percent rating for a right wrist disability, the 10 percent rating of the left hip, a 10 percent rating for a right thumb disability, a 10 percent rating for right ankle sprain, a 10 percent rating for tinnitus, a 10 percent rating for a right hip disability and a 10 percent rating for residuals of traumatic brain injury (TBI). The Veteran thus meets the schedular criteria for a TDIU. The record reflects that the Veteran last worked in 1998. His longest employment after active duty was as a carpenter for 2 years. The Veteran participated in Vocational Rehabilitation and Employment (VRE) services with VA starting in June 2003, when he attended college. The Veteran dropped out in the Spring, 2005 due to difficulties in concentration and focus caused by his TBI residuals. A July 2002 VA examination for the Veteran's joints noted that his hand and wrist disabilities would preclude him from liftin greater than 20 pounds and engaging in pushing and pulling activities. VA examinations of the Veterans hips in May 2017 and June 2021 noted that the Veteran's hip pain precluded walking and standing for prolonged periods of time. A June 2017 VA examination for the Veteran's migraines noted that the Veteran's headaches resulted in pain, nausea, light sensitivity and related symptoms that disrupted his ability to concentrate and accomplish tasks. June 2021 VA examinations for TBI and headaches noted that the Veteran was limited from prolonged periods of concentration and focus during his headache episodes. A June 2021 VA examination for the Veteran's ankle noted that he was limited from engaging in prolonged periods of standing and walking. In his application for VRE services the Veteran noted that he had difficulty lifting, sitting or standing for extended time periods and that his wrist and hand were not very strong. Affording the Veteran the benefit of the doubt, the Board finds that the preponderance of evidence weights in favor of granting a TDIU. The Veteran's lay statements and the opinions of the VA examiners reflect that the Veteran's service-connected disabilities impacted his ability to perform the mental and physical requirements for employment. Specifically, the Veteran was engaged in physical labor after active duty, but is precluded from lifting heavy objects or standing or walking for prolonged periods of time by his wrist, hand, hip and ankle disabilities. The record also reflects that the Veteran would have difficulty with the concentration and focus required to accomplish employment tasks as a result of his TBI residuals and migraine headaches. The Veteran had to drop out of college because of the limitations caused by these disabilities. Based on the foregoing, the Board finds that the lay and medical evidence establishes that the Veteran's service-connected disabilities precluded him from performing any type of gainful employment and, accordingly, a TDIU is granted. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.