Citation Nr: 1301235 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 07-22 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a rating in excess of 20 percent for residuals of a fractured right femur. REPRESENTATION Appellant represented by: David F. Bander, Esq. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from November 1969 to June 1971. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2010, the Board remanded the matter for additional evidentiary development. A review of the record shows that the RO has substantially complied with all remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). Neither the appellant nor his attorney has argued otherwise. The appellant was previously represented in this appeal by the Disabled American Veterans. In September 2012, however, David F. Bander, Esq., submitted a VA Form 21-22a, Appointment of Individual as Claimant's Representative, to the Board indicating that the appellant had appointed him as his representative in February 2012. Mr. Bander also requested a copy of the appellant's claims folder. On November 19, 2012, the Board provided Mr. Bander with a copy of the appellant's claims file as well as his Virtual VA file. The Board then deferred consideration of this matter for over 30 days. Having received no response from the appellant or his attorney since that time, including a motion for an extension of time to submit additional argument or evidence, the Board will proceed with consideration of the appeal based on the evidence of record. See e.g., 38 C.F.R. § 20.1304 (2012). In connection with his appeal, the appellant requested and was scheduled for a Board hearing before a Veterans Law Judge at the RO, to be held in September 2009. Although the appellant was duly notified of the time and date of the hearing by mail, he failed to appear and neither furnished an explanation for his failure to appear nor requested a postponement or another hearing. Pursuant to 38 C.F.R. § 20.702(d), when an appellant fails to appear for a scheduled hearing and has not requested a postponement, the case will then be processed as though the request for a hearing had been withdrawn. Thus, the Board will proceed with consideration of the appeal based on the evidence of record. In a January 2012 memorandum, the Appeals Management Center noted that the appellant had again requested reopening of his previously denied claims of entitlement to service connection for recurrent postphlebitic syndrome/deep vein thrombosis. In September 2012 written arguments, the appellant's attorney also referred to this claim. The record currently available to the Board contains no indication that the RO has had the opportunity to address this matter. Therefore, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action. FINDING OF FACT The appellant's service-connected residuals of a fractured right femur are manifested by chronic left hip and knee pain, analogous to a moderate right hip or knee disability. At no time has his residuals of a fractured right femur been manifested by symptomatology more nearly approximating a marked right hip or knee disability. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for residuals of a fractured right femur have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5255 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties under the VCAA. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In a May 2006 letter issued prior to the initial decision on the claim, VA notified the appellant of the information and evidence needed to substantiate and complete his claim, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1). The letter included the additional notification requirements imposed by the U.S. Court of Appeals for Veterans Claims (Court) in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In November 2008, the RO sent the appellant a letter for the express purpose of complying with the Court's decision in Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Since the issuance of these letters, the RO has reconsidered the appellant's claim, most recently in the January 2012 Supplemental Statement of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. Neither the appellant nor his attorney has argued otherwise. The appellant's service treatment records are on file, as are records from the Social Security Administration (SSA). The RO has also obtained all relevant post-service clinical records which the appellant has specifically identified and authorized VA to obtain. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2), (3). In November 2010, the RO requested that the appellant identify any additional VA and private clinical records relevant to his claim but he did not respond. The appellant has also been afforded VA medical examinations in connection with his claim, most recently in November 2010. 38 C.F.R. § 3.159(c)(4). The Board finds that the examinations are adequate and contain sufficient reference to the pertinent schedular criteria. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Massey v. Brown, 7 Vet. App. 204 (1994) (holding that VA medical examination reports must provide sufficient reference to the pertinent schedular criteria). The appellant has not argued otherwise. Sickels v. Shinseki, 643 F3d 1362 (Fed. Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). The Board also notes that the record does not show, nor has the appellant contended, that his service-connected residuals of a fractured right femur has increased in severity since the most recent examination was conducted. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary. Background The appellant's service treatment records show that in May 1970, he sustained a closed fracture of the midshaft of the right femur after he fell asleep while driving and hit a telephone pole. He underwent an open reduction and internal fixation of the femoral shaft fracture using an intramedullary nail. In September 1970, he was discharged from the hospital to six months of limited duty. At that time, X-ray studies showed good bony union of the fracture. In February 1971, the appellant was reevaluated by a Medical Board. At that time, X-ray studies showed that the femoral shaft fracture had solidly united. There was no leg length discrepancy. He was determined to be fit for return to full duty. The final diagnosis was closed fracture of the midshaft, right femur, with intramedullary nail, no artery or nerve involvement, healed. In August 1975, following his separation from active service, the appellant submitted an original application for VA compensation benefits, seeking service connection for a broken right femur. In connection with his claim, the appellant underwent VA medical examination in April 1976 at which he complained that his right hip and thigh had been hurting. Examination showed full range of motion of all extremities with no muscle atrophy. X-ray studies showed an old healed fracture of the right femur junction of the middle with upper thirds in good alignment. The right lower extremity was 1.5 centimeters shorter than the left. In a June 1976 rating decision, the RO granted service connection for residuals of a fracture of the right femur and assigned an initial zero percent disability rating, effective August 26, 1975, pursuant to Diagnostic Code 5275. In June 1986, the appellant submitted a claim for an increased rating for his service-connected residuals of a fracture of the right femur, claiming that he was experiencing problems with his right hip, leg, and knee. He also indicated that he had developed problems with blood clots in his legs which he believed was causally related to his service-connected femur fracture. In connection with his claim, the appellant underwent VA medical examination in August 1986 at which he complained of shortening of the right leg with resulting pain in the right knee and hip with standing and walking. Examination showed that the appellant's right knee lacked 10 degrees of full extension. The diagnosis was residuals of fracture, right femur. The RO also obtained private clinical records showing treatment for phlebitis, deep vein thrombosis, and recurrent postphlebitic syndrome due to venous insufficiency. In November 1986 and September 1987 rating decisions, the RO increased the rating for the appellant's service-connected residuals of a fracture of the right femur to 10 percent, effective June 19, 1986, pursuant to Diagnostic Code 5255. The RO denied service connection for recurrent postphlebitic syndrome, finding that such disability had not been incurred in service nor was it related to his service-connected residuals of a femur fracture. In a November 1988 decision, the Board denied service connection for recurrent postphlebitic syndrome. In March 2006, the appellant submitted his most recent claim for an increased rating for his service-connected residuals of a right femur fracture. In connection with his claim, the appellant underwent VA medical examination in May 2006 at which he reported right leg pain three times weekly. The appellant claimed that his disability resulted in functional impairment due to pain with ambulation and standing. Examination showed a level scar on the lateral thigh measuring 20.5 centimeters by 1 centimeter. The examiner indicated that the scar displayed no tenderness, adherence, instability, inflammation, hypopigmentation, hyperpigmentation, keloid formation, inflammation, or tissue loss. The appellant's leg length was 94 centimeters on the right and 95 centimeters on the left. Posture and gait were normal. The examiner indicated that the appellant did not require an assistive device for ambulation. X-ray studies showed a healed fracture involving the proximal shaft of the right femur in near-anatomic alignment. The right hip showed no signs of edema, weakness, tenderness, redness, heat, abnormal movement, or guarding. Range of motion testing of the right hip showed flexion to 80 degrees with pain at 80 degrees, extension to 30 degrees, adduction to 25 degrees with pain at 25 degrees, abduction to 45 degrees with pain at 45 degrees, external rotation to 60 degrees with pain at 40 degrees, and internal rotation to 40 degrees with pain at 40 degrees. Joint function was additionally limited by pain following repetitive use but there was no limitation due to fatigue, weakness, lack of endurance or incoordination. Examination of the right knee showed flexion from zero to 140 degrees. The examiner indicated that the joint was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination. The ligaments were stable and the meniscus was normal. The diagnosis was residuals of a fractured right femur with scar and associated limited painful range of motion of the right hip. The examiner indicated that the appellant's disability had a considerable affect on his daily activity due to pain with walking and standing. In an August 2006 rating decision, the RO increased the rating for the appellant's service-connected residuals of a fractured right femur to 20 percent, effective March 31, 2006, pursuant to Diagnostic Code 5255. The appellant appealed the RO's determination. He argued that his condition was worse than the current rating reflected as he had developed deep vein thrombosis as a result of his femur fracture. The appellant also indicated that he had right knee symptoms secondary to his femur fracture. In connection with the appellant's appeal, the RO obtained VA and private clinical records showing treatment for right leg pain and swelling. Diagnoses included right leg deep vein thrombosis and Coumadin therapy was initiated in November 2006. In March 2007, the appellant was scheduled for a VA medical examination in connection with his complaints of right knee pain. The appellant, however, refused to participate, stating that he did not need to be evaluated for right knee pain, only for blood clots in his right leg. Records received from the Social Security Administration show that in May 2007, the appellant was determined to be disabled as of May 2006 due to phlebitis and thrombophlebitis. The appellant again underwent VA medical examination in November 2010. The examiner reviewed the record and noted the appellant's history of an in-service femur fracture treated surgically. The appellant reported that in the 1980's, after his separation from active service, he had had the pin removed and had been able to perform physical work and parachute recreationally. He indicated that he had worked as a machine operator and custodian but had retired in 2008 after a heart attack. The appellant indicated that his current symptoms now included pain in his right knee and hip. The appellant claimed that he used a cane intermittently if his hip or knee became particularly painful. On objective examination, the appellant's gait was normal and there was no evidence of abnormal weight bearing. Examination of the right knee showed tenderness but no instability. Range of motion of the right knee was normal from zero to 145 degrees with pain. There was no ankylosis. There was evidence of pain following repetitive motion but no additional limitations. Examination of the right hip showed flexion from zero to 130 degrees, extension from zero to -30 degrees, and abduction from zero to 30 degrees. The appellant was able to cross his right leg over his left and turn his toes out greater than 15 degrees. There was pain on motion and following repetitive motion, but no other limitations. X-ray studies showed an old right proximal femur shaft fracture but no new fracture or dislocation. There were mild degenerative changes in both hip and sacroiliac joints. X-ray studies of the knees showed some mild osteopenia but no other significant joint findings, including arthritis. The diagnoses included femur fracture 1970, stable. The examiner indicated that the appellant's service-connected right femur fracture had no significant effect on his usual occupation or daily activities. Also diagnosed was degenerative arthritis of the right hip secondary to right femur fracture and shortening thereof. The examiner indicated that the appellant's hip disability had a significant effect on his usual occupation in that it caused decreased mobility and strength and increased pain but it had no effect on his daily activities such as travelling, chores, grooming, and driving. It had a mild to moderate effects on his ability to exercise and play sports. Applicable Law Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. When evaluating disabilities of the joints, VA's Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). The appellant's service-connected right femur fracture disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5255, pertaining to impairment of the femur. Under that provision, a 10 percent rating is assigned where there is malunion of the femur with a slight knee or hip disability. A 20 percent rating is assigned for malunion of the femur with a moderate knee or hip disability. A 30 percent rating is assigned for malunion of the femur with marked knee or hip disability. A 60 percent rating is assigned for fracture of the surgical neck of the femur with false joint. A 60 percent rating is also assigned for fracture of the shaft or anatomical neck of the femur with nonunion but without loose motion, weightbearing preserved with aid of brace. An 80 percent rating is assigned for fracture of the shaft or anatomical neck of the femur with nonunion and loose motion (spiral or oblique fracture). The terms "moderate" and "marked" are not defined in VA's Rating Schedule. Rather than applying a mechanical formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. Terminology such as "moderate" and "marked" used by VA examiners and others, although an element of evidence to be considered by the Board, are not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under VA's Rating Schedule, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For the purpose of rating disability from arthritis, the knee and hip are considered major joints. 38 C.F.R. § 4.45(f). Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of knee extension are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Evaluations for limitation of flexion of the thigh are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; flexion limited to 20 degrees is 30 percent rating; and flexion is limited to 10 degrees is 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, where there is limitation of rotation of the thigh to the point that the claimant cannot toe-out more than 15 degrees, a 10 percent evaluation is assigned. A 10 percent rating is also assigned where there is limitation of abduction to the point at which the claimant cannot cross his legs. A 20 percent rating is assigned where there is limitation of abduction of the thigh, motion lost beyond 10 degrees. Normal hip motion is defined as flexion from zero to 125 degrees and abduction from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5275 pertains to shortening of the bones of the lower extremity. Under that provision, when the shortening is from 11/4 to 2 inches (3.2 centimeters to 5.1 centimeters), a 10 percent rating is assigned. When the shortening is from 2 to 21/2 inches (5.1 centimeters to 6.4 centimeters), a 20 percent rating is assigned. When the shortening is from 21/2 to 3 inches (6.4 centimeters to 7.6 centimeters), a 30 percent rating is assigned. When the shortening is from 3 to 31/2 inches (7.6 centimeters to 8.9 centimeters), a 40 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5275. A Note following Diagnostic Code 5275 provides that ratings based on shortening of the leg may not be combined with other ratings for fracture or faulty union in the same extremity. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for residuals of a fractured right femur. As noted, the appellant's disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5255, pertaining to impairment of the femur. In order to warrant a rating in excess of 20 percent under that code, the evidence must show that his disability is manifested by malunion of the femur with marked knee or hip disability. As set forth above, although the appellant reports right knee and hip pain, the medical evidence does not establish that his disability picture more closely approximates malunion of the femur with marked knee or hip disability. As set forth above, repeated X-ray studies show that the appellant's femur fracture has healed in near-anatomic alignment. Additionally, although he reports knee and hip pain, the appellant has not been shown to have marked disability of either joint. For example, at VA medical examinations in May 2006 and November 2010, the appellant's posture and gait were normal with no evidence of abnormal weight bearing. At the May 2006 VA examination, the examiner noted that the appellant's right hip showed no signs of edema, weakness, tenderness, redness, heat, abnormal movement, or guarding. Range of motion testing of the appellant's right hip showed flexion to 80 degrees and abduction to 45 degrees. Joint function was additionally limited by pain following repetitive use but there was no limitation due to fatigue, weakness, lack of endurance or incoordination. The examiner indicated that the appellant's right hip pain with walking and standing had a considerable affect of his daily activity. More recently, at the November 2010 VA medical examination, the right hip showed flexion to 130 degrees and abduction to 30 degrees. Normal hip joint motion is from 0 degrees to 125 degrees of flexion and from 0 degrees to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. There was pain on motion and following repetitive motion, but no other limitations. The examiner concluded that the appellant's right hip disability had a significant effect on his usual occupation in that it caused decreased mobility and strength and increased pain but indicated that it had no effect on his daily activities such as travelling, chores, grooming, and driving, and a mild to moderate effect on his ability to exercise and play sports. Overall, the Board concludes that these findings do not more nearly approximate marked hip disability. It is noted that some limitation of motion due to pain is contemplated in the finding of moderate hip impairment. With respect to the right knee, range of motion testing at the May 2006 VA medical examination showed flexion from zero to 140 degrees. At the November 2010 VA medical examination, range of right knee motion was from zero to 145 degrees. Normal knee joint motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The examiners noted pain but indicated that the knee joint was not additionally limited by fatigue, weakness, lack of endurance or incoordination. Overall, the Board concludes that these findings do not more nearly approximate a marked knee disability. There is, in fact no significant knee impairment shown by the objective findings. In summary, after considering the appellant's subjective reports and the objective evidence, the Board concludes that the record does not reflect the functional equivalent of symptoms, supported by adequate pathology, indicative of marked hip or knee disability. Moreover, repeated X-ray studies have shown that the appellant's disability is not manifested by fracture of the surgical neck of the femur with false joint or nonunion. Under these circumstances, a rating in excess of 20 percent is not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5255. The Board has also considered the possibility of rating the manifestations of the appellant's disability under an alternative diagnostic code or codes, but concludes that this would not avail the appellant of a rating in excess of 20 percent, regardless of whether the manifestations of his disability are rated separately or combined. For example, as delineated in detail above, the appellant does not exhibit the degree of limitation of motion necessary to assign a compensable rating for either the right hip or knee under 38 C.F.R. § 4.71a, Diagnostic Code 5252, 5253, 5260, and 5261. Moreover, for the reasons described above, the Board has concluded that the record does not establish additional functional loss factors which would restrict right knee or hip motion to such an extent that the criteria for a rating in excess of 20 percent would be justified, either separately or combined. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. The appellant has not pointed to any such evidence. The Board has considered that the record contains X-ray evidence of right hip arthritis as well as painful right hip motion. Under these circumstances, a 10 percent rating may be assigned. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010. Absent compensable right knee pathology, however, rating the appellant's right knee and hip disabilities separately would not result in a rating in excess of that which is currently in effect. As noted, the appellant exhibits noncompensable range of right knee motion and examination has shown that there is no instability, meniscal abnormality or other pathology upon which to base a compensable rating. See e.g. 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5258 and 5259. The Board also finds that a separate 10 percent rating for right hip arthritis and painful motion under Diagnostic Code 5003 or 5010 may not be assigned in addition to the current 20 percent rating as this would compensate the appellant twice for his right hip symptoms, constituting impermissible pyramiding. See 38 C.F.R. § 4.14. The Board has also considered rating the appellant's disability under 38 C.F.R. § 4.71a, Code 5275, pertaining to shortening of the bones of the lower extremity. The evidence, however, reflects that the appellant's right lower extremity shortening does not rise to the level which would warrant a compensable rating. The appellant's right lower extremity has been shown to be 1 to 1.5 centimeters shorter than his left. To warrant a compensable rating, the disability must be manifested by shortening of the bones from 3.2 centimeters to 5.1 centimeters. The Board also notes that the record on appeal shows that the appellant's service-connected right femur fracture also includes scarring. The evidence, however, indicates that such scaring is asymptomatic and does not otherwise meet the criteria for a separate compensable rating. The appellant does not contend otherwise. 38 C.F.R. § 4.118, Diagnostic Codes 7800- 7805. Finally, the Board notes that record reflects that the appellant experiences significant right lower extremity pathology secondary to deep vein thrombosis. Service connection for that disability is not currently in effect and, therefore, manifestations of this disability may not be considered in rating the service-connected disability. 38 C.F.R. § 4.14; see also Mittleider v. West, 11 Vet. App. 181, 182 (1998). As set forth above, the Board has noted that the appellant has raised a claim of service connection for deep vein thrombosis and has referred that matter to the RO for initial consideration. In summary, the Board has considered the entire record, including the appellant's reported symptomatology and the objective clinical evidence. For the reasons set forth above, the Board concludes that the preponderance of the evidence is against the assignment of a schedular rating in excess of 20 percent for the appellant's service-connected residuals of a right femur fracture. Thus, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching its decision, the Board has also considered referral of the case for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Under 38 C.F.R. § 3.321, in exceptional cases where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalizations as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). After reviewing the record, however, the Board finds no basis for further action on this question as there is no indication of an exceptional or unusual disability picture such that the schedular criteria for the appellant's service-connected right femur fracture disability are inadequate. As discussed above, the symptoms associated with the appellant's service-connected disability, including pain and functional loss, are fully contemplated by the Rating Schedule. Moreover, the appellant's service-connected right femur fracture residuals have not necessitated frequent periods of hospitalization and he has not contended otherwise. Finally, the Board finds that the appellant's service-connected right femur fracture has not been shown to cause marked interference with employment beyond that contemplated by the schedular criteria. Although the appellant's service-connected right femur fracture residuals have been shown to have a significant impact on his usual occupation by causing decreased mobility, it has not been shown to result in marked interference with employment. In that regard, the record also shows that the appellant reports that he is medically retired and is in receipt of disability benefits from SSA. Records from SSA, however, show that the cause of his disability retirement was a nonservice-connected condition. In any event, in recognition of the industrial impairment caused by his service-connected right femur fracture residuals, the appellant has been awarded a 20 percent rating for his service-connected residuals of a right femur fracture. Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The record otherwise contains no indication that there are factors causing marked interference with employment beyond that contemplated by the schedular criteria. Under these circumstances, the Board finds no evidence to indicate referral for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board has also considered the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, however, the record on appeal contains no indication that the appellant is unemployable as a result of his service-connected right femur fracture and the appellant has not contended otherwise. Absent probative evidence of unemployability, consideration of a total rating based on individual unemployability due to service-connected disability is not warranted. ORDER Entitlement to a rating in excess of 20 percent for residuals of a right femur fracture is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs