Citation Nr: 21025322 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-11 654 DATE: April 27, 2021 ORDER Entitlement to an initial rating higher than 10 percent for status post-surgical repair of fractured right hip, prior to January 13, 2020 and to a rating higher than 20 percent, thereafter, is denied. Entitlement to an initial rating higher than 10 percent for limitation of extension of the right thigh is denied. Entitlement to an initial compensable rating for limitation of flexion of the right thigh, prior to January 13, 2020, and to a rating higher than 10 percent, thereafter, is denied. Prior to January 8, 2020, entitlement to an initial rating higher than 70 percent for major depressive disorder is denied. Prior to January 8, 2020, entitlement to a total disability rating based on individual unemployability (TDIU), due to the Veteran’s service-connected acquired psychiatric disability alone, effective December 23, 2011, is granted. REMANDED Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) is remanded. FINDINGS OF FACT 1. Prior to January 13, 2020, the Veteran’s status post-surgical repair of fractured right hip was not manifested by motion lost beyond 10 degrees of abduction. 2. From January 13, 2020, the Veteran is in receipt of the maximum disability rating available for right hip impairment based on limitation of rotation, abduction, and adduction. 3. For the entire period on appeal, the Veteran is in receipt of the maximum disability rating available for limitation of extension of the right thigh. 4. Prior to January 13, 2020, the Veteran’s flexion of the right thigh was not actually or functionally limited to 45 degrees. 5. From January 13, 2020, the Veteran’s flexion of the right thigh is not actually or functionally limited to 30 degrees. 6. Prior to January 8, 2020, the Veteran’s major depressive disorder was not manifested by total occupational and social impairment. 7. Prior to January 8, 2020, the Veteran’s major depressive disorder prevented him from maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to January 13, 2020, the criteria for an initial rating higher than 10 percent for status post-surgical repair of fractured right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5253. 2. From January 13, 2020, there is no legal basis for the assignment of a rating higher than 20 percent for status post-surgical repair of fractured right hip. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5253. 3. There is no legal basis for the assignment of an initial rating higher than 10 percent for limitation of extension of the right thigh. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5251. 4. Prior to January 13, 2020, the criteria for an initial compensable rating for limitation of flexion of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5252. 5. From January 13, 2020, the criteria for a rating higher than 10 percent for limitation of flexion of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5252. 6. Prior to January 8, 2020, the criteria for a rating higher than 70 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 7. Prior to January 8, 2020, the criteria for TDIU based on a single service-connected disability (acquired psychiatric disability) effective December 23, 2011 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1975 to February 1979 and April 1980 to February 1983. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from September 2012, February 2013, July 2013, and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2017 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In March 2018, the Board remanded these claims. In a June 2020 rating decision, the RO granted a separate noncompensable rating for right hip limitation of flexion, effective January 13, 2020. In September 2020, the Board granted entitlement to an initial rating of 70 percent for major depressive disorder, and remanded all other claims on appeal for additional development. In a February 2021 rating decision, the RO granted an increased rating of 20 percent for status post-surgical repair of fracture right hip and 10 percent for right hip limitation of flexion, effective January 13, 2020. Increased Ratings The Veteran seeks entitlement to increased ratings for his major depressive disorder, and right hip disability, to include limitation of extension of the right thigh, and limitation of flexion of the right thigh. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged ratings” (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has considered the entire record, including the Veteran’s VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. Right Hip Disability By way of history, while playing football for his ship’s team, the Veteran tore the meniscus in his right knee, which was surgically repaired while in service. The right knee continued to be a problem after discharge and in 2010 required a second surgery. He was advised to do therapy, which included riding a bike. While riding his bike, his knee locked and he took a fall, fracturing his right hip and requiring surgical repair. See February 2013 VA examination. Service connection for the right hip was established in a February 2013 rating decision. The Veteran’s right hip disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5251, for limitation of extension of the thigh, Diagnostic Code 5252, for limitation of flexion of the thigh, and Diagnostic Code 5253, for impairment of the thigh involving limitation of rotation, adduction and abduction. The Veteran contends that he is entitled to higher ratings for his right hip disability. The following Diagnostic Codes are also applicable to the hip: Diagnostic Code 5250 (ankylosis), Diagnostic Code 5254 (flail joint), and Diagnostic Code 5255 (impairment of the femur, to include nonunion and malunion). Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Normal ranges of motion of the hip are extension/flexion from 0 degrees to 125 degrees and hip abduction/adduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves, when a flare-up is not observable at the time of examination. 1. Entitlement to an initial rating higher than 10 percent for status post-surgical repair of fractured right hip, prior to January 13, 2020 and to a rating higher than 20 percent, thereafter. Service connection for status post-surgical repair of fractured right hip was granted in a February 2013 rating decision, at which time a 100 percent rating was assigned, effective April 27, 2012, a 10 percent rating from August 1, 2012, and a 20 percent rating, from January 13, 2020, under Diagnostic Code 5253. Under Diagnostic Code 5253, a 10 percent rating is warranted for impairment of the thigh with limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Prior to January 13, 2020 Prior to January 13, 2020, the Veteran is in receipt of an initial 10 percent rating for status post-surgical repair of fracture right hip under Diagnostic Code 5253, effective August 1, 2012. The Veteran was afforded a VA examination in July 2012, at which time no ranges of motion were obtained as he was still healing from surgery. The Veteran was afforded a VA examination in February 2013. The Veteran reported that walking, attempts at bending and prolonged standing or sitting caused flareups. Flexion was to 80 degrees, with pain beginning at 70 degrees. Extension was to 5 degrees, with painful motion beginning at 5 degrees. Abduction was not lost beyond 10 degrees and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. Adduction was limited such that the Veteran could not cross his legs. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. He had functional loss in that he had less movement than normal, weakened movement, pain on movement, swelling, and disturbance of locomotion. The Veteran also had tenderness or pain to palpation for joints/soft tissue of the right hip. Muscle strength was reduced to 3/5, active movement against gravity, for hip flexion, hip abduction, and hip extension. There was no ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. It was noted that he occasionally used a cane. A February 2014 VA treatment record indicates the Veteran had been doing well but began to experience more pain laterally in the hip and right groin, which subsided. Examination revealed tenderness over the greater trochanter and lateral femur. Flexion was to 80 degrees. Internal and external rotation were restricted and there was considerable guarding. Abduction was to 20 degrees. An x-ray showed satisfactory and stable position of the internal fixation with no joint space narrowing or avascular necrosis. The Veteran was afforded a VA examination in March 2014. He reported that since the prior VA examination in 2013, he experienced increased episodes of pain and a numbing sensation that radiated alongside of his right leg to the back of his calf down to his heel. He reported increased instances of hip pain with weather changes and movement that required frequent hip flexion repetition. He especially noted pain when getting in and out of a car and reported that he must frequently stretch during the day. He reported using pain medication, a cream, and many nights he sleeps on the couch to force himself not to roll over on the right hip. Flexion was to 75 degrees with pain beginning at 65 degrees. Extension was to 5 degrees, with pain beginning at 5 degrees. Abduction was not lost beyond 10 degrees and rotation was not limited such that the Veteran could not toe-out more than 15 degrees; however, adduction was limited such that the Veteran could not cross legs. The Veteran was able to perform repetitive-use testing, and post-test flexion ended at 65 degrees. Functional loss was described as less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, disturbance of locomotion and interference with sitting, standing, and/or weight bearing. There was localized tenderness or pain to palpation of the joints/soft tissue of the right hip. Muscle strength was reduced to 3/5, active movement against gravity, for hip flexion, hip abduction, and hip extension. There was no ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. It was noted that he regularly used a cane to get in and out of the car and on days when he has a lot of pain from the right hip degenerative joint disease. The examiner listed additional hip range of motion measurements as: abduction to 30 degrees, and after three attempts, 35 degrees; adduction to 20 degrees, and after three attempts, 15 degrees; internal rotation to 35 degrees, and after three attempts, 30 degrees; and external rotation to 55 degrees, and after three attempts, 50 degrees. The examiner explained the Veteran could only ride a stationary bike for 10 minutes or drive a few miles before he starts noticing hip pain; he utilizes cruise control whenever he can. Going up stairs increased right hip pain and going downstairs he can only perform maneuver by leading down with the left leg to support most of his weight and then brings the right leg down. Sitting in class for 55 minutes is all he can tolerate so he tried to sign up for college classes that are about that time frame; if the class is longer, he must stand up and walk around. In addition, he has had to drop down to part time to limit the amount of time he has to sit. He indicated one of the most difficult tasks is leaning over to tie his right shoe because the flexion movement increases his right hip pain significantly. He cannot sit for more than about 30 to 50 minutes to perform keyboarding, phone, or other office type work. The Board finds that the preponderance of the evidence is against a rating more than 10 percent. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in symptoms more nearly approximating limitation of abduction, motion lost beyond 10 degrees. For example, in February 2014, abduction was to 20 degrees; in March 2014, abduction was to 30 degrees and after three repetitions, it was to 35 degrees. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). As noted, the medical evidence does not indicate ankylosis, flail joint, or femur impairment. As such, separate or higher ratings under Diagnostic Codes 5250 (for ankylosis), 5251 (for flail joint) or Diagnostic Code 5255 (for femur impairment) are not applicable. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating more than 10 percent for status post-surgical repair of fractured right hip, prior to January 13, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From January 13, 2020 From January 13, 2020, the Veteran is in receipt of a 20 percent rating for status post-surgical repair of fractured right hip under Diagnostic Code 5253. This is the maximum rating available under Diagnostic Code 5253. As the Veteran is in receipt of the highest schedular rating allowable based on limitation of rotation, adduction, and abduction for this period on appeal, there is no basis to award a higher rating for this period on appeal. 2. Entitlement to an initial rating higher than 10 percent for limitation of extension of the right thigh. Service connection for limitation of extension of the right thigh was granted in a February 2013 rating decision, at which time a 10 percent rating was assigned under Diagnostic Code 5251, effective April 27, 2012, the date of the Veteran’s claim. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. On a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). If a Veteran is at the maximum evaluation and no other criteria are applicable, there is no case in controversy. In order for a claim to proceed, there must be a benefit. The Board notes that the Veteran is currently rated separately for limitation of flexion as well as limitation of abduction/adduction. These ratings are discussed subsequently. The medical evidence does not indicate ankylosis, flail joint, or femur impairment. As such, separate or higher ratings under Diagnostic Codes 5250 (for ankylosis), 5251 (for flail joint) or Diagnostic Code 5255 (for femur impairment) are not applicable. As the Veteran is in receipt of the highest schedular rating for limitation of extension of the thigh for the entire period on appeal, there is no basis to award a higher rating; this appeal is denied. 3. Entitlement to an initial compensable rating for limitation of flexion of the right thigh, prior to January 13, 2020, and to a rating higher than 10 percent, thereafter. Service connection for limitation of flexion of the right thigh was granted in a June 2020 rating decision, at which time a noncompensable rating was assigned under Diagnostic Code 5252, effective January 13, 2020. In a February 2021 rating decision, the Veteran’s rating was increased to 10 percent, effective January 13, 2020. The Veteran’s disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252, for limitation of flexion of the thigh. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Prior to January 13, 2020 The Board finds that the preponderance of the evidence is against a compensable rating prior to January 13, 2020. To warrant a compensable rating of 10 percent, flexion must be actually or functionally limited to 45 degrees. As previously noted, during the February 2013 VA examination, flexion was to 80 degrees, with pain beginning at 70 degrees. A February 2014 VA treatment note reported a flexion to 80 degrees. During the March 2014 VA examination, flexion was to 75 degrees, with pain beginning at 65 degrees. Therefore, there is no evidence that the Veteran’s flexion was limited to 45 degrees, prior to January 13, 2020, even considering pain. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating flexion limited to 45 degrees. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for entitlement to a compensable rating, prior to January 13, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From January 13, 2020 The Board finds that the preponderance of the evidence is against a rating higher than 10 percent, from January 13, 2020. To warrant a rating higher than 10 percent, flexion must be actually or functionally limited to 30 degrees. The Veteran was afforded a VA examination in January 2020. He reported experiencing more episodes of right hip discomfort since the prior VA examination. He noted that there were more times of achiness and soreness, that the discomfort affected his gait, and he especially noted the pain when walking his dog. Aggravating factors were noted to be tying his shoes, getting dressed, prolonged sitting or standing. The Veteran reported flare-ups, with pain occurring daily. Flexion was to 80 degrees. Pain was noted on examination that caused functional loss. There was evidence of pain on weight bearing, but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissues. The Veteran was able to perform repetitive-use testing with no additional loss of range of motion. The examiner stated that because the severity of the flare-ups was unpredictable, it cannot be measured in a distinct, quantifiable range of motion that is universally applicable to all situations; however, it was the examiner’s medical opinion that pain would have a moderate (30-70 percent below baseline function), impact on all right hip ranges of motion during flare-ups. Muscle strength was reduced to 4/5, active movement against some resistance, for flexion, normal for extension, and 4/5 for abduction. There was no atrophy, malunion or nonunion of the femur, flail hip joint or leg length discrepancy. It was noted the Veteran occasionally used a cane. The examiner noted the Veteran does not run or jump any distance. He used to play basketball and can no longer participate. He does not walk more than a mile without stopping to rest. He has difficulty going up and down stairs and tries to avoid them. He cannot sit for long period of time performing sedentary activity. The examiner indicated there was evidence of pain on passive range of motion, and in non-weight bearing. An addendum opinion was obtained in April 2020, at which time the examiner clarified that after repetitive-use and during flare-ups, flexion would be to 60 degrees. In a September 2020 remand, the Board noted that the January 2020 VA examination did not note the degree at which pain occurred during range of motion testing. As directed in the September 2020 remand, the Veteran was afforded a VA examination in November 2020. The Veteran reported daily right hip pain that was worse in the morning and relieved with rest and occasionally methocarbamol. He reported that he is unable to run, exercise, stand, sit or walk for prolonged periods of time, due to pain. He also indicated that he has to change his position frequently, he is unable to use stairs, wakes frequently at night to change position, and has difficulty bending over to dress and put shoes and socks on, due to pain. He is unable to use stairs due to pain. He wakes frequently at night to change position due to pain. Flexion was to 80 degrees, with no objective evidence of pain. There was evidence of pain on weight bearing. The Veteran was able to perform repetitive-use testing with no additional loss of range of motion. With repeated use over time and during flare-ups, the examiner indicated that the Veteran’s flexion would be limited to 70 degrees. Muscle strength was reduced to 4/5, active movement against some resistance, for flexion, extension, and abduction. There was objective evidence of pain on passive range of motion testing and non-weight bearing. The Veteran was afforded a VA examination in February 2021. He reported his pain was worse and that morning are most difficult because when he sleeps, he rolls onto his right side and feels pressure, so he tries to sleep on his back; he is often very stiff in the morning. He reported flare-ups as occurring every morning. The Veteran noted it was hard to tie his shoes, put shoes on, and put on clothes. Stairs are “kryptonite” to him, and he is unable to run. If things are low, for instance if he drops something, it is very difficult to bend to retrieve it and he sometimes needs a grabber. He also reported trouble driving, preparing meals, bathing, and trouble toileting. Flexion was to 50 degrees with pain starting at 50 degrees. He was able to perform repetitive-use testing with flexion reported as 60 degrees after three repetitions. It was noted that pain, fatigue, and weakness contributed to functional loss. Regarding repetitive use over time, flexion was reported 50 degrees, and during flare-ups, to 45 degrees. The Veteran had swelling and disturbance of locomotion, with decreased stride length and guarded walking. Muscle strength was reduced to 4/5 in flexion, extension, and abduction. The examiner indicated the Veteran’s right hip caused limitations for standing, walking, stair climbing, lifting carrying, picking things up, and performing activities of daily living, such as dressing and toileting. There was evidence of pain on passive range of motion, but no pain on non-weight bearing. Therefore, there is no evidence that the Veteran’s flexion was actually or functionally limited to 30 degrees, from January 13, 2020. At most, even considering pain, fatigue, and weakness, the Veteran’s flexion was limited to 45 degrees during examinations conducted in this appeal period. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating flexion limited to 30 degrees. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for entitlement to a rating higher than 10 percent, from January 13, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Prior to January 8, 2020, entitlement to an initial rating higher than 70 percent for major depressive disorder. Service connection for depression, not otherwise specified (NOS), was established by a September 2012 rating decision, at which time a 30 percent rating was assigned, effective December 23, 2011. In a January 2020 rating decision, the Veteran’s diagnosis was changed to major depressive disorder and his disability rating was increased to 100 percent, effective January 8, 2020. In a September 2020 decision, the Board granted entitlement to an initial rating of 70 percent, but no higher, prior to January 8, 2020, and remanded for development pertaining to the Veteran’s occupational history. The current regulations establish a general formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “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 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 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of the Veteran’s occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (5th ed.) (DSM-V). As noted, the Veteran is rated as 70 percent disabled due to his major depressive disorder, previously rated as depression, NOS, effective December 23, 2011 to January 8, 2020, and is currently receiving a 100 percent rating, thereafter. A 70 percent evaluation is warranted where there is objective evidence demonstrating that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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 work-like setting; and the inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for 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. Having carefully considered the Veteran’s contentions in light of the evidence of record and the applicable law, the Board finds that the current 70 percent rating appropriately reflects the level of severity of the Veteran’s psychiatric disorder. A rating higher than 70 percent is not warranted. There is no evidence that the Veteran experiences symptoms of total social impairment. For example, in August 2012, the Veteran reported that although he lived alone, his primary support was his sister and niece and that he also had support from his fellow church members. In May 2013, he reported that he usually kept to himself, but recently moved to New York to be closer to his mother and sister. In October 2015, he reported living with a female roommate and his dogs. He reported having friends. The evidence indicates that despite the Veteran’s serious symptoms he was able to maintain some relationships throughout the course of this appeal. Therefore, it cannot be said that the Veteran’s symptoms approximated total social impairment to warrant a 100 percent rating. The Board notes the Veteran’s serious symptoms throughout the appeal period, as discussed in the September 2020 Board decision, particularly his homicidal thoughts, impaired impulse control, and irritability with periods of violence. The overall evidence indicates the Veteran clearly had significant, though not total, social and functional impairment. The Veteran reported on multiple occasions that he preferred to be isolated and was not comfortable around others. As reported by the Veteran himself, however, he was able to maintain some relationships with church members, a couple family members and friends. Regarding occupational impairment, the Board acknowledges that the Veteran has severe interference with his ability to work, which is discussed subsequently as it pertains to the issue of entitlement to a TDIU. Importantly, however, the Board specifically notes that the standards for the assignment of a TDIU are not the same as those for a 100 percent evaluation for a psychiatric disorder. While a TDIU may be warranted when a person is unable to follow a substantially gainful occupation, a 100 percent rating for a psychiatric disorder states that total occupational and social impairment is needed. 38 C.F.R. §§ 3.340, 4.130. In this case, the Veteran’s symptoms were not so severe that he had total social impairment and total occupational impairment. Throughout the course of the appeal, the Veteran reported being employed on multiple occasions. Although his employment was marginal, the Board notes that this evidence of marginal employment does not indicate total occupational impairment as necessary for a 100 percent rating under Diagnostic Code 9434. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that they have argued that a 100 percent evaluation is warranted, these assertions are outweighed by more probative evidence provided by the examinations of qualified medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). Furthermore, the symptoms described in the lay statements comport with the 70 percent rating that is currently assigned. As such, these lay statements do not provide any basis upon which to assign any higher rating. The Board has also considered the Veteran’s symptoms which are not included in the rating criteria listed under 38 C.F.R. § 4.130 and whether they constitute symptoms that would be comparable in type and degree (frequency, severity, and duration) to the criteria for a 100 percent rating. See Mauerhan, 16 Vet. App. at 443; Vazquez-Claudio v. Shinseki. Though the Veteran’s symptoms have been shown to be severe and manifest with frequency, the Board, in weighing all of the evidence, does not find that these symptoms are of a comparable severity to the symptomatology required for a rating of 100 percent. In sum, the Board finds that the Veteran’s impairment due to his psychiatric disorder was most consistent with a 70 percent disability rating, prior to January 2020. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of evidence is against assignment of any higher rating than the 70 percent assigned, that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107 (b). 5. Entitlement to a TDIU. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the Veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16 (a). “Substantially gainful employment” is employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In the present case, among other disabilities, he is currently in receipt of a 70 percent rating for major depressive disorder, effective December 23, 2011. The Veteran reported that his disabilities affected his full-time employment in 2012. See October 2020 VA Form 21-8940. The question that remains, then, is whether the Veteran’s service-connected disabilities precluded him from obtaining or engaging in substantially gainful employment. A Veteran need not show 100 percent unemployability in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). As an initial matter, the Board notes that while the Veteran meets the percentage requirements for a schedular award of TDIU based on a combined rating for his disabilities, during the appeal period the Veteran also became potentially eligible for entitlement to SMC benefits. As discussed in the Remand section, SMC benefits may be obtained on the basis of TDIU being awarded for a single disability. The Board is awarding a grant of TDIU for the Veteran’s psychiatric disability. The Veteran asserts that although he has been employed throughout the course of this appeal, his employment was marginal. A TDIU may be granted when the record shows that employment is marginal. Marginal employment is not considered substantially gainful employment and is deemed to exist when a Veteran’s annual income does not exceed the poverty threshold for one person, as established by the U.S. Department of Commerce, Bureau of the Census. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). Whether a Veteran is capable of more than marginal employment must be considered. Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). The amounts established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person, are: $11,484 (2011); $11,720 (2012); $11,888 (2013); $12,071 (2014); $12,082 (2015); $12,228 (2016); $12,488 (2017); $12, 784 (2018); $13,011 (2019); $13,172 (2020). See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. In a January 2021 statement, the Veteran asserted that he was unemployed in 2011 and began working in 2012. He stated that he considers all his employment as marginal, except for the System I position, and that all other employment was part-time. The Board reviewed his listed employment within the November 2020 VA Form 21-8940, which includes several positions. The Veteran indicated that he worked February 2012 to April 2012 as a dishwasher for 15 hours a week, earning $500 a month for the 3-month period. From August 2014 to January 2018, he worked 20 hours a week as a concierge, earning $880 a month. From March 2019 to April 2019, he worked full-time as a cleaner, earning $1,200 a month for two months. From August 2019 to September 2019, he worked 25 hours a week in customer service, earning $1,200 the month he was employed. The Board finds the Veteran is competent to report his employment history and earnings. Considering the economic evidence as a whole, the Board finds the Veteran’s earning capacity fell below the poverty threshold for one person, and therefore, he was marginally employed throughout the course of this appeal. Regarding the non-economic component, the evidence indicates the Veteran’s major depressive disorder prevented him from maintaining gainful employment, prior to January 2020. The record contains evidence that the Veteran has had difficulty maintaining employment throughout the course of the appeal. During the May 2013 VA examination, the Veteran endorsed symptoms such as depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. In March 2015, the Veteran was admitted to the hospital voluntarily for homicidal thoughts towards co-workers. He reported he worked at a car dealership and he had a verbal altercation with two co-workers. He indicated he left and went home, but he was very angry and the next day he was still very angry and agitated and had thoughts of hurting his co-workers. It was noted that the Veteran had also been admitted to a VA hospital in 2010 for three days on a “Baker Act.” A June 2015 VA treatment note indicates the Veteran was transferred to a new psychiatrist due to inappropriate behavior with the prior psychiatrist. The Veteran reported that he wanted to apologize to the previous psychiatrist for his behavior, noting that he was angry over a perceived insult by a co-worker, verbalized threat to harm him and was then put on a Baker Act. He was remorseful for his behavior with the psychiatrist but also with the conflict with the co-worker, noting that he needed to learn to cope with stress. During an October 2015 VA examination, the Veteran reported he was fired from a job in 2010 when he pushed a manager. The Veteran testified at a Board hearing in August 2017. He indicated he was currently working, although it was marginal employment. The Veteran reported symptoms of depression and anxiety, noting that he sometimes waits until midnight to go to the store to avoid traffic and crowds. Overall, the Veteran’s symptoms, particularly his homicidal thoughts, impaired impulse control, irritability with periods of violence, difficulty in adapting to stressful circumstances, and difficulty maintaining effective relationships prevented him from being able to maintain substantially gainful employment, throughout the period on appeal. Accordingly, entitlement to a TDIU, based solely on his service-connected major depressive disorder, is granted, prior to January 8, 2020, effective December 23, 2011. REASONS FOR REMAND 6. Entitlement to SMC under 38 U.S.C. § 1114 (s). The Board must consider entitlement to SMC if raised by the issues on appeal. Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC at the housebound(s) rate is payable if a Veteran has a single service-connected disability rated at 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). For the purpose of meeting the first criterion (a single service-connected disability rated at 100 percent), ratings of 100 percent may be based on any of the following grants of a total rating: on a schedular basis, an extraschedular basis, on the basis of TDIU if granted for a single disability, or on the basis of a temporary total rating. As discussed above, the Board has awarded entitlement to TDIU for his psychiatric disorder alone. As such, the first element of entitlement to SMC at the statutory housebound rate is shown. The Board notes that the Veteran has multiple additional service-connected disabilities potentially independently ratable at 60 percent; on remand, the RO should adjudicate whether the Veteran is entitled to SMC at any point during the appeal period, in light of the Board’s grant of TDIU based on his acquired psychiatric disability alone. The matters are REMANDED for the following action: In light of the Board’s grant of a TDIU based solely on the Veteran’s acquired psychiatric disability, prior to January 2020, the RO should determine whether the Veteran is entitled to SMC under 38 U.S.C. § 1114 (s) at any point during the appeal period. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.