Case A26040378

T. MAINELLI · 2026 · Case ID: A26040378

MIXED

Summary

The veteran, who served from November 1976 to January 1998, appeals the denial of service connection and increased ratings for bilateral hip conditions, specifically limitation of extension, flexion, and other impairments under Diagnostic Codes 5251, 5252, and 5253. The veteran also appeals the denial of an earlier effective date for these grants and the denial of Total Disability based on Individual Unemployability (TDIU). The Board reviewed multiple VA examinations from December 2019, January 2021, and November 2024, which documented degenerative arthritis in both hips and various range-of-motion limitations and pain. The Board found that while some limitations met criteria for a 10% rating for left thigh extension and right and left thigh impairments since January 27, 2021, and a 20% rating for left thigh flexion since January 27, 2021, the evidence did not support earlier effective dates or higher ratings for other claimed impairments. The Board granted entitlement to TDIU effective April 11, 2019, based on prior Board findings and the Veteran's reported inability to maintain substantially gainful employment due to his service-connected disabilities, citing medical evidence of functional limitations and pain.

Rationale

No evidence of right hip flexion limited to 45 degrees or less.; December 2019 VA DBQ showed flexion limited to 100 degrees.; November 2024 VA DBQ showed flexion limited to 45 degrees.

Special Benefit

TDIU

Docket No.

260127-628780

Full Decision Text

Citation Nr: A26040378
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 260127-628780
DATE: April 29, 2026

ORDER

Entitlement to an effective date earlier than April 11, 2019, for a grant of entailment to service connection for limitation of extension of the bilateral thighs under Diagnostic Code (DC) 5251, limitation of flexion of the bilateral thighs under DC 5252, and for additional impairments of the bilateral thighs under DC 5253 is denied.

Entitlement to an initial compensable disability rating for limitation of right thigh extension under diagnostic code (DC) 5251 is denied.

Prior to January 27, 2021, entitlement to an initial compensable disability rating for limitation of left thigh extension under DC 5251 is denied.

Since January 27, 2021, an initial rating of 10 percent disabled for limitation of left thigh extension under DC 5251 is granted.

Entitlement to an initial compensable disability rating for limitation of right thigh flexion under DC 5252 is denied.

Prior to January 27, 2021, entitlement to an initial compensable disability rating for limitation of left thigh flexion under DC 5252 is denied.

Since January 27, 2021, an initial rating of 20 percent disabled, but no higher, for limitation of left thigh flexion under DC 5252 is granted.

Prior to January 27, 2021, entitlement to an initial compensable disability rating for a right thigh impairment under DC 5253 is denied.

Since January 27, 2021, an initial rating of 10 percent disabled, but no higher, for a right thigh impairment under DC 5253 is granted.

Prior to January 27, 2021, entitlement to an initial compensable disability rating for a left thigh impairment under DC 5253 is denied.

Since January 27, 2021, an initial rating of 10 percent disabled, but no higher, for a left thigh impairment under DC 5253 is granted.

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) effective April 11, 2019, is granted.

FINDINGS OF FACT

1. VA received an intent to file a claim on April 11, 2019, and subsequently received the original claim for entitlement to service connection for a bilateral hip disability on November 25, 2019; the current effective date for the grant of service connection for right and left hip disorders is April 11, 2019, the date VA received the Veteran's intent to file a claim.

2. During the course of the appeal, right thigh extension was limited to, at worst, 10 degrees.

3. Prior to January 27, 2021, left thigh extension was limited to, at worst, 20 degrees.

4. Since January 27, 2021, left thigh extension was limited to, at worst, zero degrees.

5. During the course of the appeal, right thigh flexion was limited to, at worst, 60 degrees.

6. Prior to January 27, 2021, left thigh flexion was limited to, at worst, 80 degrees.

7. Since January 27, 2021, left thigh flexion was limited to, at worst, 30 degrees.

8. Prior to January 27, 2021, right thigh abduction was limited to, at worst, 25 degrees and right thigh external rotation was limited to, at worst, 25 degrees.

9. Prior to January 27, 2021, left thigh abduction was limited to, at worst, 20 degrees and left thigh external rotation was limited to, at worst, 25 degrees.

10. Since January 27, 2021, bilateral limitation in abduction prevented the Veteran from crossing his legs.

11. There is some persuasive evidence that the Veteran's service-connected disabilities have prevented substantially gainful employment since April 11, 2019.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date earlier than April 11, 2019, for a grant of entailment to service connection for limitation of extension of the bilateral thighs under DC 5251, limitation of flexion of the bilateral thighs under DC 5252, and for additional impairments of the bilateral thighs under DC 5253 have not been met. 38 U.S.C. §§ 5107, 5110, 7.104(b); 38 C.F.R. §§ 3.102, 3.156(b), 3.400, 20.1103.

2. The criteria for entitlement to an initial compensable disability rating for limitation of right thigh extension
IONS OF LAW

2. The criteria for entitlement to an initial compensable disability rating for limitation of right thigh extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5251.

3. The criteria for entitlement to an initial compensable disability rating for limitation of left thigh extension prior to January 27, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5251.

4. The criteria for entitlement to an initial rating of 10 percent disabled for limitation of left thigh extension since January 27, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5251.

5. The criteria for entitlement to an initial compensable disability rating for limitation of right thigh flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5252.

6. The criteria for entitlement to an initial compensable disability rating for limitation of left thigh flexion prior to January 27, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5252.

7. The criteria for entitlement to an initial rating of 20 percent disabled, but no higher, for limitation of left thigh flexion since January 27, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5252.

8. The criteria for entitlement to an initial compensable disability rating for a right thigh impairment prior to January 27, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5253.

9. The criteria for entitlement to an initial rating of 10 percent disabled, but no higher, for a right thigh impairment since January 27, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5253.

10. The criteria for entitlement to an initial compensable disability rating for a left thigh impairment prior to January 27, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102,
higher, for a right thigh impairment since January 27, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5253.

11. The criteria for entitlement to an initial rating of 10 percent disabled, but no higher, for a left thigh impairment since January 27, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5253.

12. The criteria for entitlement to a TDIU rating, effective April 11, 2019, has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1976 to January 1998.

The rating decision on appeal was issued in January 2025; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the January 2026 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal as well as evidence received with the submission of his January 2026 10182 and within 90 days of the 10182. 38?C.F.R. § 20.302. Additionally, the Veteran waived any additional time to change his AMA docket lane.

In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Here, the issue of entitlement to a TDIU is before the Board as part of the Veteran's disagreement with the initial rating for his service-connected hip disorders. See also AB v. Brown, 6 Vet. App. 35, 38-39 (1993).

1. Entitlement to an effective date earlier than April 11, 2019, for a grant of entailment to service connection for limitation of extension of the bilateral thighs under DC 5251, limitation of flexion of the bilateral thighs under DC 5252, and for additional impairments of the bilateral thighs under DC 5253 hips

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1).

The AMA applies to all claims originally decided after February 19, 2019. See Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017).

Under the AMA, a claimant has three administrative review options for an adverse decision which must be filed within one year from notice of a decision - 1) a request for Higher Level Review (HLR), 2) an appeal to the Board, or 3) the filing of a supplemental claim.
the application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1).

The AMA applies to all claims originally decided after February 19, 2019. See Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017).

Under the AMA, a claimant has three administrative review options for an adverse decision which must be filed within one year from notice of a decision - 1) a request for Higher Level Review (HLR), 2) an appeal to the Board, or 3) the filing of a supplemental claim. 38 C.F.R. § 3.2500. Timely filing an appropriate administrative review option under 38 C.F.R. § 3.2500 may preserve an effective date from a claim which is continuously pursued. 38 C.F.R. § 3.2500(h)(1).

VA intended the AMA to broadly recognize three types of claims: a supplemental claim, an initial claim, and a claim for increase. 84 Fed. Reg. 138, 139 (Jan 18, 2019). However, the Court of Appeals for Veterans Claims (Court) has held that VA regulations governing administrative review options are claims processing rules, see Hall v. McDonough, 34 Vet. App. 329, 333 (2021), and has also held that a supplemental claim need not be filed on a specific VA form. See Chisholm v. Collins, 38 Vet. App. 140 (2025).

An earlier effective date may be warranted if there is continuous pursuit of a previously denied decision. 38 C.F.R. § 3.2500(h). There is continuous pursuit, for example, when a supplemental claim is received within one year from notice of a decision. 38 C.F.R. § 3.2500(a). There is no continuous pursuit when a supplemental claim is received more than one year after notice of a decision. 38 C.F.R. § 3.2500(h)

In this case, VA received an intent to file a claim on April 11, 2019, and subsequently received the original claim for entitlement to service connection for a bilateral hip disability on November 25, 2019. The January 2025 rating decision on appeal granted service connection for limitation of extension of the bilateral thighs under DC 5251, limitation of flexion of the bilateral thighs under DC 5252, and for additional impairments of the bilateral thighs under DC 5253, effective April 11, 2019. Therefore, a date earlier than April 11, 2019, for these grants of service connection is not warranted. See 38 U.S.C. § 5110(a).

2. Entitlement to an initial compensable disability rating for limitation of right thigh extension under DC 5251 is denied.

3. Prior to January 27, 2021, entitlement to an initial compensable disability rating for limitation of left thigh extension under DC 5251 is denied.

4. Since January 27, 2021, an initial rating of 10 percent disabled for limitation of left thigh extension under DC 5251 is denied.

5. Entitlement to an initial compensable disability rating for limitation of right thigh flexion under DC 5252 is denied.

6. Prior to January 27, 2021, entitlement to an initial compensable disability rating for limitation of left thigh flexion under DC 5252 is denied.

7. Since January 27, 2021, an initial rating of 20 percent disabled, but no higher, for limitation of left thigh flexion under DC 5252 is granted.

8. Prior to January 27, 2021, entitlement to an initial compensable disability rating for a right thigh impairment under DC 5253 is denied.

9. Since January 27, 2021, an initial rating of 10 percent disabled, but no higher, for a right thigh impairment under DC 5253 is granted.

10. Prior to January 27, 2021, entitlement to an initial compensable disability rating for a left thigh impairment under DC 5253 is denied.

11. Since January 27, 2021, an initial rating of 10 percent disabled, but no higher, for a left thigh impairment under DC 5253 is granted.

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment
10 percent disabled, but no higher, for a right thigh impairment under DC 5253 is granted.

10. Prior to January 27, 2021, entitlement to an initial compensable disability rating for a left thigh impairment under DC 5253 is denied.

11. Since January 27, 2021, an initial rating of 10 percent disabled, but no higher, for a left thigh impairment under DC 5253 is granted.

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran's claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings).

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 determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does
, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. 29 Vet. App. 26 (2017). The Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.

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. 38 C.F.R. § 4.59.

Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected hip disorders. Under DC 5251, a 10 percent rating is assigned when extension of the thigh is limited to 5 degrees.

Under DC 5252, a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; a 30 percent rating is assigned when flexion is limited to 20 degrees; and a 40 percent rating is assigned when flexion is limited to 10 degrees.

Under DC 5253, a 10 percent rating is assigned for limitation of the rotation of the hip, where the veteran cannot toe-out more than 15 degrees on the affected side; a 10 percent rating is assigned for limitation of adduction of the hip, preventing the veteran from crossing legs; and a 20 percent rating is assigned for limitation of abduction of the hip, with motion lost beyond 10 degrees.

The Veteran is currently service connected for limitation of extension of the bilateral thighs under DC 5251, limitation of flexion of the bilateral thighs under DC 5252, and for additional impairments of the bilateral thighs under DC 5253, effective April 11, 2019. Left hip limitation of flexion is rated as noncompensable to November 20, 2024, and 10 percent disabling thereafter. All of the additional service-connected hip disorders on appeal are rated as noncompensable.

During a December 2019 VA disability benefits questionnaire (DBQ), the examiner diagnosed the Veteran with degenerative arthritis of both the right and left hips. The Veteran reported symptoms including shooting pain and stiffness in the left hip and occasional pain in the right hip. He reported severe flare-ups at least three or four times per week, and he reported difficulty walking and sitting for long periods of time. Initial and repetitive use range of motion testing reflected right hip flexion to 100 degrees; extension to 30 degrees; abduction to 35 degrees; adduction to 25 degrees; external rotation to 35 degrees; and internal rotation to 40 degrees. Initial and repetitive use range of motion testing reflected left hip flexion to 90 degrees; extension to 30 degrees; abduction to 30 degrees; adduction to 20 degrees; external rotation to 35 degrees; and internal rotation to 30 degrees.

For repeated use over time, the examiner estimated right hip flexion limited to 95 degrees; extension to 25 degrees; abduction to 30 degrees; adduction to 20 degrees; external rotation to 30 degrees; and internal rotation to 35 degrees. For flare-ups, the examiner estimated right hip flexion limited to 90 degrees; extension to 20 degrees; abduction to 25 degrees; adduction to 15 degrees; external rotation to 25 degrees; and internal rotation to 30 degrees. For repeated use over time, the examiner estimated left hip flexion limited to 85 degrees; extension to 25 degrees; abduction to 25 degrees; adduction to 15 degrees; external rotation to 30 degrees; and internal rotation to 25 degrees. For flare-ups, the examiner estimated left hip flexion limited to 80 degrees; extension to 20 degrees; abduction to 20 degrees; adduction to 15 degrees; external rotation to 25 degrees; and internal rotation to 20 degrees. Notably, the examiner determined that bilateral limitation in abduction did not prevent the Veteran from crossing his legs, including when considering repeated use over time and flare-ups. The examiner noted no muscle atrophy, ankylosis, or femur or flail joint impairment in either hip. The Veteran has not undergone surgery for either hip, and the examiner indicated that the Veteran does not use any assistive devices for his hips.

During a January 2021 VA DBQ examination, the examiner diagnosed the Veteran with degenerative arthritis of both the right and left hips. The Veteran reported symptoms including increasing throbbing pains, grinding, and sharp pains in both hips, with weakness in the left hip and thigh. He also reported that he relies on a cane at all times. He reported that he did not experience flare-ups, but he did report difficulty with numerous uses of the hips. Initial and repetitive use range of motion testing reflected right hip flexion to 70 degrees; extension to 10 degrees; abduction to 20 degrees; adduction to 15 degrees; external rotation to 10 degrees; and internal rotation to 15 degrees. Initial and repetitive use range of motion testing reflected left hip flexion to 40 degrees; extension to 5 degrees; abduction to 20 degrees; adduction to 10 degrees; external rotation to 15 degrees; and internal rotation to 15 degrees. Notably, the examiner determined that bilateral limitation in abduction prevented the Veteran from crossing his legs.

The examiner indicated no additional right hip limitation of functional ability due to pain, weakness, fatigability, or incoordination with repeated use over time. For left hip repeated use over time, the examiner estimated left hip flexion limited to 30 degrees; extension to zero degrees; abduction to 15 degrees; adduction to 5 degrees; external rotation to 10 degrees; and internal rotation to 10 degrees. The examiner noted no muscle atrophy, ankylosis, or femur or flail joint impairment in either hip. The Veteran has not undergone surgery for either hip, and the examiner indicated that the Veteran constantly uses a cane.

Finally, during a November 2024 VA DBQ examination, the examiner again diagnosed the Veteran with degenerative arthritis of both the right and left hips. The Veteran reported pain in both hips that prevented him from running, walking more than a few feet, standing for more than 5 minutes, climbing, or driving long distances. He reported that he did not experience flare-ups. Initial and repetitive use range of motion testing reflected right hip flexion to 60 degrees; extension to 15 degrees; abduction to 30 degrees; adduction to 20 degrees; external rotation to 50 degrees; and internal rotation to 20 degrees. Initial and repetitive use range of motion testing reflected left hip flexion to 45 degrees; extension to 10 degrees; abduction to 30 degrees; adduction to 20 degrees; external rotation to 40 degrees; and internal rotation to 15 degrees. Notably, the examiner determined that bilateral limitation in abduction did not prevent the Veteran from crossing his legs. The examiner indicated no additional right or left hip limitation of functional ability due to pain, weakness, fatigability, or incoordination with repeated use over time. The examiner noted additional factors contributing to the Veteran's bilateral hip disabilities included interference with standing
; adduction to 20 degrees; external rotation to 50 degrees; and internal rotation to 20 degrees. Initial and repetitive use range of motion testing reflected left hip flexion to 45 degrees; extension to 10 degrees; abduction to 30 degrees; adduction to 20 degrees; external rotation to 40 degrees; and internal rotation to 15 degrees. Notably, the examiner determined that bilateral limitation in abduction did not prevent the Veteran from crossing his legs. The examiner indicated no additional right or left hip limitation of functional ability due to pain, weakness, fatigability, or incoordination with repeated use over time. The examiner noted additional factors contributing to the Veteran's bilateral hip disabilities included interference with standing, disturbance of locomotion, and less movement than normal. The examiner noted no muscle atrophy, ankylosis, or femur or flail joint impairment in either hip. The Veteran has not undergone surgery for either hip, and the examiner indicated that the Veteran regularly uses a cane.

During the course of the appeal, right hip extension was limited to, at worst, 10 degrees. In the absence of evidence of right hip extension limited to 5 degrees or less, an initial compensable rating under DC 5251 for limitation of right hip extension is not warranted.

Prior to the January 27, 2021, VA DBQ examination, left hip extension was limited to, at worst, 20 degrees. See December 19, 2019, VA DBQ Examination. The January 27, 2021, VA DBQ examiner estimated left hip extension limited to zero degrees with repeated use over time. On this record, the Board cannot factually ascertain any reasonably specific time period between the December 19, 2019, VA DBQ examination and the January 27, 2021, VA DBQ examination, where an increase of limitation of left hip extension occurred. See generally 38 C.F.R. 3.31 (commencement of pay periods is the first day of the calendar month in which the award became effective). Therefore, entitlement to an initial compensable rating prior to January 27, 2021, is not warranted. Since January 27, 2021, a rating of 10 percent disabled for limitation of left hip extension is warranted. This rating is the maximum schedular rating for limitation of hip flexion allowable.

Additionally, right hip flexion was limited to, at worst, 60 degrees. In the absence of evidence of flexion of the right hip limited to 45 degrees or less, an initial compensable rating under DC 5252 for limitation of right hip flexion is not warranted.

Prior to the January 27, 2021, VA DBQ examination, left hip flexion was limited to, at worst, 80 degrees. See December 19, 2019, VA DBQ Examination. The January 27, 2021, VA DBQ examiner estimated left hip flexion limited to 30 degrees with repeated use over time. On this record, the Board cannot factually ascertain any reasonably specific time period between the December 19, 2019, VA DBQ examination and the January 27, 2021, VA DBQ examination, where an increase of limitation of left hip flexion occurred. See generally 38 C.F.R. 3.31 (commencement of pay periods is the first day of the calendar month in which the award became effective). Therefore, entitlement to an initial compensable rating prior to January 27, 2021, is not warranted. Since January 27, 2021, a rating of 20 percent disabled for limitation of left hip extension is warranted. In the absence of evidence of left hip flexion limited to 20 degrees or less, a rating in excess of 20 percent is not warranted.

Further, prior to the January 27, 2021, VA DBQ examination, the Veteran's right and left hip external rotation was limited to, at worst, 25 degrees. Right hip abduction was limited to, at worst, 25 degrees, and left hip abduction was limited to, at worst, 20 degrees. The December 19, 2019, VA examiner determined that bilateral limitation in abduction did not prevent the Veteran from crossing his legs. In the absence of evidence of external rotation limited to 15 degrees, an inability to cross his legs, or abduction limited to 10 degrees, an initial compensable rating under DC 5253 prior to January 27, 2021, is not warranted for either hip.

Since January 27, 2021, the Veteran's right and left hip external rotation was limited to, at worst, 10 degrees. Right hip abduction was limited to, at
abduction was limited to, at worst, 25 degrees, and left hip abduction was limited to, at worst, 20 degrees. The December 19, 2019, VA examiner determined that bilateral limitation in abduction did not prevent the Veteran from crossing his legs. In the absence of evidence of external rotation limited to 15 degrees, an inability to cross his legs, or abduction limited to 10 degrees, an initial compensable rating under DC 5253 prior to January 27, 2021, is not warranted for either hip.

Since January 27, 2021, the Veteran's right and left hip external rotation was limited to, at worst, 10 degrees. Right hip abduction was limited to, at worst, 20 degrees, and left hip abduction was limited to, at worst, 15 degrees. The January 27, 2021, VA examiner determined that bilateral limitation in abduction did prevent the Veteran from crossing his legs. As noted above, the Board cannot factually ascertain any reasonably specific time period between the December 19, 2019, VA DBQ examination and the January 27, 2021, VA DBQ examination, where an increase in functional limitation of both hips occurred. Therefore, since January 27, 2021, an initial rating of 10 percent disabled for the right and left hips is warranted under DC 5253. In the absence of evidence of either right or left hip abduction limited to 10 degrees, a rating in excess of 10 percent disabled is not warranted.

Finally, there is no evidence of ankylosis, flail joint, or femur impairment of either hip, separate compensable ratings under DCs 5250, 5254, and 5255 are not warranted. Even considering the Veteran's use of the cane, the August 2024 VA DBQ still reflects range of motion and an absence of ankylosis, including during flare-ups. The functional limitations that cause the occasional use of a cane are reflected in the Veteran's separate 10 percent disability ratings for each hip under DC 5253.

12. Entitlement to a TDIU rating effective April 11, 2019, is granted.

Total disability ratings for compensation may be assigned where 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 because of service-connected disabilities. If there is only one such disability, this disability shall be ratable as 60 percent or more, and that, 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. §§ 3.340, 3.341, 4.16. For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a).

Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001).

Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Id.

For TDIU purposes, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.1. Factors to be considered, however, will include the veteran's employment history, educational attainment, and vocational experience. 38 C.F.R. § 4.16. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist
ant is unemployed or has difficulty obtaining employment is not enough. A disability rating itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Id.

For TDIU purposes, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.1. Factors to be considered, however, will include the veteran's employment history, educational attainment, and vocational experience. 38 C.F.R. § 4.16. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a).

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.

However, to receive TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

Being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of 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 and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity).

In a July 2024 decision, the Board granted entitlement to a TDIU rating. In a July 2024 rating decision, the AOJ assigned an effective date of March 16, 2021, for entitlement to a TDIU rating. As noted in the introduction, entitlement to a TDIU rating arises as part of the Veteran's continuous pursuit of ratings for his bilateral hip disorders, which originate from an April 11, 2019, filing of an intent to file a claim. The Veteran seeks entitlement to a TDIU rating since April 11, 2019.

In the July 2024 decision granting entitlement to a TDIU rating, the Board provided the following reasons and bases:

The Board in its October 2023 decision found the Veteran to meet the schedular criteria for TDIU.

The Veteran reported working as a jailer with the Bell County Sheriff's Office for 2 years before he claims he had to retire as the result of his service-connected disabilities. The Veteran further stated that he attempted to
arises as part of the Veteran's continuous pursuit of ratings for his bilateral hip disorders, which originate from an April 11, 2019, filing of an intent to file a claim. The Veteran seeks entitlement to a TDIU rating since April 11, 2019.

In the July 2024 decision granting entitlement to a TDIU rating, the Board provided the following reasons and bases:

The Board in its October 2023 decision found the Veteran to meet the schedular criteria for TDIU.

The Veteran reported working as a jailer with the Bell County Sheriff's Office for 2 years before he claims he had to retire as the result of his service-connected disabilities. The Veteran further stated that he attempted to work at a funeral home part time but was unable to work beyond one year due to his inability to complete basic tasks due to his service-connected disabilities.

The Veteran has undergone several VA examinations regarding his service-connected disabilities. One examination in March 2020 noted the Veteran to have functional loss of the knees that limit the Veteran to only be able to walk a few feet and limit standing to no more than a few moments. These findings were echoed in separate March 2020 VA foot and back examinations that also independently stated the Veteran was unable to work or stand longer than a few moments.

Further, a February 2021 VA hip examination found the Veteran to experience difficulty stooping, pushing, pulling, carrying, standing, sitting, walking, climbing stairs, running, squatting, and standing/walking/driving long periods of time.

The Veteran underwent another VA examination in April 2021 regarding the Veteran's back disability. This examination found that Veteran would have difficulty with prolonged sitting of greater than 60 minutes and standing more than 30 minutes without periodic stretching. Additionally, the examiner stated that the Veteran should avoid repetitive bending at the waist and lifting more than 20 to 25 pounds.

Lastly, the Board, in the previous October 2023 decision conceded that the chronic pain experienced by the Veteran would reasonably cause difficulty with maintaining focus on tasks for a prolonged period of time.

Based on the foregoing, the Board finds that entitlement to a TDIU is warranted, as the Veteran's service-connected disabilities likely preclude him from maintaining substantially gainful employment consistent with his education and experience.

Subsequent to that July 2024 Board decision, a January 2025 rating decision granted service connection for the bilateral hip disorders discussed above, effective April 11, 2019. Since April 11, 2019, the Veteran has a combined rating of 90 percent disabled for his service-connected disabilities.

Notably, the Board's July 2024 decision discussed VA examinations as early as March 2020 in determining a TDIU rating is warranted. Additionally, the December 2019 VA examination discussed in the section above indicates that the Veteran reported difficulty walking and difficulty sitting for long periods of time, and the examiner determined the following:

All diagnosed hip conditions result in difficulty with standing, walking and standing for long periods as well as squatting, kneeling, running, jumping, climbing/descending stairs due to pain, weakness and decreased range of motion in the hips all of which decrease productivity and efficiency (sic).

As entitlement to a TDIU rating arose with the Veteran's April 11, 2019, intent to file a claim, entitlement to a TDIU rating is warranted since April 11, 2019. The lay statements allege unemployability occurring more than one year prior to the April 11, 2019, date of claim. The Board finds it is not factually ascertainable that unemployability due to service-connected disability occurred within one year of the April 2019 application. As such, April 11, 2019, is the earliest date for the award of TDIU. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997).

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Howell, Chad

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.

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