Citation Nr: 21025554 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-26 973 DATE: April 28, 2021 ORDER A total disability rating due to individual unemployability is granted from May 18, 2005. An initial rating higher than 10 percent for limitation of extension of the right thigh associated with myositis, or a rating higher than 10 percent for impairment of the right thigh, or a compensable rating for limitation of flexion of the right thigh is denied. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran’s favor, the evidence establishes that the Veteran was not able to secure or maintain substantially gainful employment due to his service-connected disabilities from May 18, 2005. 2. The evidence fails to establish that the Veteran’s myositis of the right thigh has manifested in limitation of abduction with motion lost beyond 10 degrees, or in flexion limited to 45 degrees. CONCLUSIONS OF LAW 1. The criteria for a total disability rating for individual unemployability due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.16(b). 2. The criteria for a rating higher than 10 percent for limitation of extension of the right thigh associated with myositis, for a rating higher than 10 percent for impairment of the right thigh, or for a compensable rating for limitation of flexion of the right thigh have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for myositis of the right thigh and assigning an initial rating of 10 percent from the effective date of May 18, 2005. In a June 2020 decision, the Board found a claim for a total disability rating due to individual unemployability (TDIU) raised by the record and granted a TDIU from October 7, 2015. Entitlement to an extraschedular TDIU before this date was remanded, as was the claim for an initial rating higher than 10 percent for right thigh myositis. The Board finds that all the directives of the June 2020 Board decision have been substantially complied with, and therefore the claims will now be adjudicated on the merits. Dyment v. West, 13 Vet. App. 141, 146–47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2021, the Board invited the Veteran’s representative to submit argument in support of the appeal. He did not respond. 1. TDIU Before October 7, 2015 A TDIU may be assigned if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To be considered for assignment of a schedular TDIU the Veteran’s service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more such 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. Id. The Veteran’s claim for service connection for myositis, of which the TDIU claim is part and parcel, was received May 18, 2005, and the Board’s prior decision granted a TDIU from October 7, 2015. Therefore, the Board will consider entitlement to a TDIU at any time during this period. The Veteran’s service-connected disabilities during the period include PTSD, rated at 50 percent from July 20, 2009; diabetes mellitus, rated at 20 percent from September 1, 2009; and, myositis of the right lower extremity, rated at 10 percent from May 18, 2005. As the Veteran’s combined disability rating for this period is not 70 percent or greater, a TDIU may not be granted by way of 38 C.F.R. § 4.16(a), and therefore the Board’s June 2020 decision referred the matter to the Director, Compensation Service under the terms of 38 C.F.R. § 4.16(b). As that process has been completed, the Board may consider whether the Veteran is unemployable due to service-connected disabilities and therefore may be entitled to an “extraschedular” TDIU. A Veteran is unemployable if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A substantially gainful occupation is one earning more than marginal income (outside of a protected environment), as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray v. Wilkie, 31 Vet. App. 58, 72–73 (2019). In evaluating a Veteran’s ability to secure and follow a substantially gainful occupation, consideration may be given to his level of education, skills and training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran has the physical and mental ability to perform the types of activities required by the occupation at issue, not whether the Veteran can find employment. Id.; 38 C.F.R. § 4.16(a). Turning to the evidence, the Veteran reported in March 2005 that he had worked in a factory for 25 years operating a tie-in machine, a “very physical” job that required “a lot of walking,” until no longer being able to work in February 2004. In his May 18, 2005 claim for service connection for right thigh myositis, the Veteran wrote that he never sought disability compensation for the disability until he was no longer able to work. In a May 2006 Social Security Disability decision, the Veteran’s severe impairments included his service-connected right thigh calcified hematoma among other disabilities such as degenerative disc disease of the neck with bulges. The decision found that his past relevant work “was low level, semi-skilled work that would not have provided him with transferrable skills” and that he is unable to perform any past relevant work. The decision thus concluded that since February 2004 no job existed that the Veteran was able to perform. The Veteran’s daughter submitted a letter in June 2007 in which she wrote that the Veteran’s injury had worsened over the years and caused him to retire early because he was unable to do the walking and lifting required by the job. At a July 28, 2012 VA examination for the right thigh, the Veteran stated he had been retired since 2005 from his career in heavy manual labor. The Veteran said his hip was painful to the touch and with walking, flaring up if he tried to walk further than two blocks or to walk too fast. The examiner opined that the Veteran would be limited from doing heavy labor and would be best suited for sedentary, desk-type work. At a December 13, 2013 VA examination for the right thigh, the examiner stated that the functional impact of the disability included an inability to stand for extended periods or to walk over one block. In a March 2014 statement, the Veteran wrote that he did not believe he was hirable because he “can barely walk” due to his thigh disability. Given this evidence, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that from May 18, 2005, the Veteran’s service-connected disabilities have rendered him unable to secure and maintain employment in the industry in which he has training, skills, and experience. The Veteran’s 25-year career was in a job that required heavy physical labor and lots of walking, and the medical and lay evidence reflects that the Veteran’s service-connected right-hip disability has prevented him from any extended walking, with the July 2012 VA examiner opining that due to the Veteran’s inability to walk further than two blocks, he would be limited from heavy labor. Though that examiner suggested that the Veteran would be suited for sedentary work, the May 2006 Social Security Disability decision, which was based on a study of the Veteran’s work history, found that the Veteran’s 25-year career as a machine operator would not have provided him any transferrable skills. Later in the appeal period, the Veteran’s PTSD was found to manifest in low motivation, and frequent depression, anger, and irritability. Thus, resolving any reasonable doubt in the Veteran’s favor, the Board finds that due to the symptoms of his service-connected disabilities, the Veteran was not able to secure and maintain employment in the job areas in which he had training, skills, and experience since May 18, 2005. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.15, 4.16(b). The Board notes the December 2020 opinion of the Director, Compensation Service that found the preponderance of the evidence against a finding the Veteran was unemployable due to his service-connected conditions. The opinion, however, was simply a bare conclusion without any reasoning, and therefore the Board does not find it compelling. Cf. Bloom v. West, 12 Vet. App. 185, 187 (1999) (holding that unsupported and unexplained opinions hold little probative value). Resolving any reasonable doubt in the Veteran’s favor, the Board finds that the evidence is sufficient to establish that the Veteran was unemployable due to his service-connected disabilities from May 18, 2005, the date of the underlying initial-rating claim of which the TDIU claim is part and parcel. Rice v. Shinseki, 22 Vet. App. 447, 448, 449 (2009). Accordingly, an extraschedular TDIU is granted from May 18, 2005. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.16(b). 2. Initial Rating for Myositis of the Right Thigh The Veteran is currently assigned a 10-percent rating for limitation of extension of the right thigh from the effective date of May 18, 2005, an additional 10-percent rating for impairment of the thigh from June 26, 2019, and a noncompensable rating for limitation of flexion from June 26, 2019. The Veteran seeks higher ratings across the appeal period. Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. Where a Veteran challenges the initial rating of a disability for which the Veteran has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s myositis is rated under Diagnostic Code (DC) 5021, which provides for a rating based upon limitation of motion of the affected part. 38 C.F.R. § 4.71a. In turn, limitation of extension of the thigh is rated under DC 5251, which provides a single, 10-percent rating where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Limitation of flexion of the thigh is rated under DC 5252. Under DC 5252, a 10-percent rating is warranted where flexion is limited to 45 degrees; a 20-percent rating is warranted where flexion is limited to 30 degrees; a 30-percent rating is warranted where flexion is limited to 20 degrees; and a 40-percent rating, which is the highest rating available under this schedule, is warranted where flexion is limited to 10 degrees. 38 C.F.R. § 4.71a. Impairment of the thigh is rated under DC 5253. Under DC 5253, a 10-percent rating is warranted where there is limitation of rotation with inability to toe-out more than 15 degrees in the affected leg; or, a 10-percent rating is warranted where there is limitation of adduction with inability to cross the legs. A 20-percent rating, which is the highest rating available under this schedule, is warranted where there is limitation of abduction with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a. Turning to the evidence, in his May 2005 claim the Veteran wrote that his right leg “gives out.” In a May 2006 Social Security Disability decision, the Veteran’s severe impairments included the right thigh calcified hematoma, and it was found that since February 2004 no job existed that the Veteran was able to perform. The Veteran’s daughter submitted a letter in June 2007 in which she wrote that the Veteran’s injury had worsened over the years and caused him to retire early because he was unable to do the walking and lifting required by the job. At an October 22, 2009 VA examination regarding service connection for the thigh disability, the Veteran reported that his thigh had worsened to the point that he was unable to walk even several blocks due to pain. The thigh was also tender to the touch. Another VA examination was provided on July 28, 2012. The Veteran reported continuing pain with walking and on touch, with flare-ups if he tried to walk further than two blocks or to walk too fast. Range of motion testing found pain at 85 degrees of flexion, pain at 5 degrees of extension, abduction beyond 10 degrees, toe-out to more than 15 degrees, and the ability to cross the legs. There was additional pain on repeated use, although the examiner opined that there was no resulting lost range of motion. There was no malunion or nonunion of the femur, flail joint, or leg length discrepancy. The examiner opined that the Veteran would be limited from doing heavy labor and would be best suited for sedentary, desk-type work. On his September 2012 notice of disagreement, the Veteran wrote that some days his leg started hurting before even getting out of bed, preventing him from being able to join family walks. A VA examination was provided on December 13, 2013. The Veteran reported that the pain in his thigh had worsened, requiring him to use a cane to walk. He reported flare-ups that rendered him unable to walk one block without severe pain, along with extreme tenderness. Range of motion testing found pain at 80 degrees of flexion, pain at 5 degrees of extension, abduction beyond 10 degrees, toe-out to more than 15 degrees, and the ability to cross the legs. On repetitive use, the Veteran had additional pain, less movement than normal, disturbance of locomotion, and interference with sitting, standing, and weightbearing. There was no malunion or nonunion of the femur, flail joint, or leg length discrepancy. The examiner stated that the functional impact included the inability to stand for extended periods or to walk over one block. Another VA examination was provided on June 26, 2019. The Veteran reported worsened symptoms including a constant dull pain that worsened with activity like walking, inability to stand for long periods, and inability to walk more than one block, all of which the examiner found supported by physical examination and by the record. Range of motion testing found pain at 90 degrees of flexion, pain at 15 degrees of extension, pain at 35 degrees of abduction, pain at 15 degrees of adduction, and 30 degrees external rotation and 20 degrees internal rotation. The Board’s prior June 2020 decision found that the June 2019 examination report did not sufficiently explain its finding that increases in pain, weakness, and fatigue during flare-ups or with repetitive use over time would not result in additional lost range of motion, so a new VA examination was provided on September 29, 2020. At the time of the new examination, the Veteran’s current symptoms were leg pain with long walking; “no hip R[ange] O[f] M[otion] changes[,] it is the knot in his thigh.” Objective range-of-motion testing found flexion, extension, abduction, adduction, and external and internal rotation all to their complete ranges of motion. The Veteran did not report flare-ups, and there was no pain, weakness, fatigability, or incoordination estimated to significantly limit functional ability with repeated use over time. The examiner noted muscular symptoms of weakness, lowered threshold of fatigue, and pain. As to the June 2020 Board decision’s specific question regarding additional lost range of motion during flare-ups or repeated use over time, the examiner stated that the Veteran’s symptoms were muscular rather than “changes of the hip or knee joint,” and therefore “no reduction in ROM is anticipated,” while the muscular symptoms would limit “extended walking, standing, and exertional activities.” Based on all the evidence of record, the Board finds that a higher rating is not warranted at any point during the appeal period. For the initial rating for limitation of extension of the thigh from May 18, 2005, a rating higher than 10 percent is not warranted, as the 10-percent rating is the highest rating available under DC 5251. 38 C.F.R. § 4.71a, DC 5251. For the 10-percent rating for impairment of the thigh from June 26, 2019, a higher rating is only available where the evidence shows limitation of abduction with motion lost beyond 10 degrees, and none of the evidence during the appeal period establishes this. 38 C.F.R. § 4.71a, DC 5253. For the noncompensable rating for limitation of flexion of the thigh, a compensable rating requires evidence of flexion limited to 45 degrees. Here, the evidence throughout the appeal period has shown flexion of the right thigh to more than 45 degrees, and therefore entitlement to a compensable rating is not established. 38 C.F.R. § 4.71a, DC 5252. To the extent the Veteran’s right thigh disability is manifesting in symptoms not fully captured by the rating criteria, such as limitations in extended walking, standing, and exertional activities, the Board notes that these limitations are a significant factor in the Board’s finding that the Veteran’s service-connected disabilities rendered him unemployable from May 18, 2005, warranting the award of a TDIU from that time (as well as the award of a TDIU from October 7, 2015, to present in the Board’s prior June 2020 decision). Therefore, the Board finds that the Veteran has been compensated for the functional impairment created by these symptoms of his service-connected right thigh myositis through the award of a TDIU across the appeal period. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019) (holding that an award of TDIU, as well as resolving reasonable doubt in favor of the claimant, are alternative “tools” for compensating the Veteran for a disability). Accordingly, a higher rating for myositis of the right thigh is denied. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DCs 5251, 5252, 5253. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.