Citation Nr: 1318509 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 06-01 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an initial rating higher than 20 percent for status post left femoral shaft fracture - closed (exclusive of the period from May 1, 2006, until July 1, 2007, pursuant to 38 C.F.R. § 3.654(b), due to the Veteran's return to active duty status). 2. Entitlement to an initial rating higher than 10 percent for right hip sprain (exclusive of the period from May 1, 2006, until July 1, 2007, pursuant to 38 C.F.R. § 3.654(b), due to the Veteran's return to active duty status). 3. Entitlement to an initial compensable rating for limitation of extension of the right thigh. 4. Entitlement to an initial compensable rating for post right hamstring muscle tear. 5. Entitlement to an effective date earlier than December 8, 2008, for the assignment of a 100 percent schedular rating for adjustment disorder with depressed mood. REPRESENTATION Appellant represented by: Michael J. Brown, Attorney ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from July to September 1977, from June to July 1982, from December 2001 to December 2002, and from May 2006 to June 2007. He appealed to the Board of Veterans' Appeals (Board/BVA) from an April 2004 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for residuals of a left femur fracture, right hamstring tear, and right hip strain and assigned 0 percent initial ratings for each of these disabilities. The RO however granted a 10 percent rating based on multiple, noncompensable, service-connected disabilities. 38 C.F.R. § 3.324. He appealed for higher initial ratings for these disabilities, so for compensable ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there been occasions when the disability has been more severe than at others; this will compensate the Veteran for this variance). In October 2008 the Board remanded these increased-rating claims for further development and consideration. Also on appeal is a June 2009 RO decision increasing the rating for the Veteran's adjustment disorder with depressed mood from 70 to 100 percent retroactively effective from December 8, 2008. He wants an earlier effective date. The RO issued yet another rating decision in April 2010 granting a total disability rating based on individual unemployability (TDIU) effective from July 1, 2007. The Veteran did not in response separately appeal for an earlier effective date. See 38 C.F.R. §§ 20.200, 20.201, 20.302; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (explaining he must separately appeal this "downstream" issue). The RO even more recently issued a January 2012 decision that: (1) granted an earlier effective date of December 30, 2002, for the award of service connection for status-post left femoral shaft fracture-closed; (2) increased the rating for this disability from 0 to 20 percent as of that same date; (3) discontinued the 20 percent rating for this disability as of May 1, 2006, because of the Veteran's return to active duty, until July 1, 2007, the date following his separation from active duty; (4) granted an earlier effective date of December 30, 2002, for the award of service connection for right hip strain/sprain; (5) increased the rating for this disability from 0 to 10 percent as of that same date; (6) discontinued compensation for this disability as of May 1, 2006, because of the Veteran's return to active duty, until July 1, 2007, the date following his separation from active duty; (7) granted a separate, noncompensable (i.e., 0 percent) rating for limitation of extension of his right thigh effective January 12, 2009; and (8) granted service connection for his left leg length discrepancy with an initial 0 percent rating effective December 20, 2005. He did not in response separately appeal those ratings or effective dates. See 38 C.F.R. §§ 20.200, 20.201, 20.302; Grantham, 114 F.3d 1156. However, because ratings higher than 20 and 10 percent are available for his status-post left femoral shaft fracture-closed and hip strain/sprain, respectively, and because it is presumed he is seeking the maximum possible ratings for these service-connected disabilities, questions remain as to whether he is entitled to even higher ratings for these disabilities. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Likewise, the issue of his entitlement to an initial compensable rating for the limitation of extension of his right thigh is on appeal as a component of the inextricably intertwined issue of his entitlement to an initial rating higher than 10 percent for his right hip sprain. See 38 C.F.R. § 4.71a, including Diagnostic Codes 5250-5255. In May 2012 the Board remanded the claims for still further development. FINDINGS OF FACT 1. The Veteran's status post left femoral shaft fracture - closed is manifested by malunion of the femur with moderate left hip disability; marked left hip disability, left knee disability, left thigh flexion to 45 degrees or less, abduction with motion lost beyond 10 degrees, adduction to the point of inability to cross the legs, rotation to the point of inability to toe out the affected leg more than 15 degrees, flail joint of the left hip and ankylosis of the left hip are not shown. 2. His right hip strain is not shown to result in impairment of the femur, extension of the thigh limited to 5 degrees, right thigh flexion to 45 degrees or less, abduction with motion lost beyond 10 degrees, adduction to the point of inability to cross the legs, rotation to the point of inability to toe out the affected leg more than 15 degrees, flail joint of the hip or ankylosis of the hip. 3. His post right hamstring muscle tear does not result in more than slight overall muscle disability. 4. Prior to December 31, 2008, it was not factually ascertainable that his adjustment disorder with depressed mood resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria are not met for an initial rating higher than 20 percent for the status post left femoral shaft fracture - closed. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321. 4.3, 4.7, 4.71a, Diagnostic Codes 5250-5255 (2012). 2. The criteria are not met for an initial rating higher than 10 percent for the right hip strain. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321. 4.3, 4.7, 4.71a, Diagnostic Codes 5250-5255 (2012). 3. The criteria are not met for an initial compensable rating for the limitation of extension of the right thigh. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321. 4.3, 4.7, 4.71a, Diagnostic Codes 5250-5255 (2012). 4. The criteria are not met for an initial compensable rating for the post right hamstring muscle tear. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.73, Diagnostic Code 5313 (2012). 5. The criteria are not met for an effective date earlier than December 8, 2008, for the 100 percent rating for the adjustment disorder with depressed mood. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.115a, 4.115b. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). These claims for higher initial ratings and for an earlier effective date arose from the initial grants of service connection and an award of an increased rating, to 100 percent, for the adjustment disorder with depressed mood. Initial-rating claims as well as a claim for an earlier effective date are "downstream" issues. Where, as here, service connection has been granted and the initial rating and effective date assigned, the initial claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the initial intended purpose of the notice has been served. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008) and this line of precedent cases and General Counsel's Opinion, VA does not have to provide the Veteran additional VCAA notice concerning these "downstream" disability rating and effective date issues. Instead of issuing an additional VCAA notice letter in this situation concerning these downstream disability rating and effective date elements of the claims, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved, and this occurred in this particular instance. The Veteran also since has received supplemental SOCs (SSOCs). The SOC and SSOCs contained citations to the governing statutes and regulations and discussion of the reasons and bases for not assigning higher initial ratings or an earlier effective date. The Veteran therefore has received all required notice concerning his claims. VA also as mentioned has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting him in obtaining relevant records and providing medical examinations or obtaining medical opinions when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to the claimant). With regards to this additional duty, the claims file contains the Veteran's service treatment records (STRs), post-service VA and private treatment records, Social Security Administration (SSA) records, the reports of his VA compensation examinations, and his and his attorney's assertions regarding the merits of the claims. The most recent October 2011 VA examinations are sufficiently thorough and current for rating purposes, and there is no suggestion or allegation of a worsening of the bilateral hip or hamstring disabilities since those most recent examinations. The bases of the conclusions reached and diagnoses given were discussed in the examination reports. Additional examination therefore is not required or needed. 38 C.F.R. §§ 3.327, 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, even if not statutorily obligated to, it must ensure the examination or opinion is adequate, else, notify the Veteran why an adequate examination and opinion cannot be provided). Moreover, neither the Veteran nor his attorney has voiced any challenge to the adequacy of the VA examinations. Unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). But even when this is called into question, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). There is no obligation to have him reexamined, yet again, simply as a matter of course or merely because of the passage of time since an otherwise adequate examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995). As well, VA offered him an opportunity to present additional evidence and argument at a hearing, but he elected not to have one, including before the Board. 38 C.F.R. §§ 20.700, 20.702, 20.704. In sum, he has received all essential notice, has had a meaningful opportunity to participate effectively in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). He has not identified any other outstanding evidence that would tend to support his claims, and there is no suggestion of any VA error in notifying or assisting him in developing is claims that could result in undue prejudice to him in deciding these claims or that could otherwise affect the essential fairness of the adjudication of these claims. The Board also sees that, pursuant to the Board's most recent remand in May 2012, the RO as requested obtained copies of the Veteran's SSA records and provided him the required SOC concerning his earlier effective date claim and gave him opportunity, in response, to also submit the required VA Form 9 or equivalent statement concerning this claim to compete the steps necessary to perfect his appeal of this claim to the Board. The prior remand in October 2008, as requested, resulted in obtaining all previously outstanding VA and private treatment records and having him reexamined to reassess the severity of the disabilities for which he is requesting higher initial ratings. Hence, there was compliance with these remand directives, certainly substantial compliance. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") claims file. Although the Board has an obligation to review the entire record, the Board does not have to discuss each and every piece of evidence reviewed, certainly not in exhaustive detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). He therefore must not assume the Board has overlooked pieces of evidence that are not explicitly discussed. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, this doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists that does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012). II. Analysis A. Increased Ratings As already alluded to, in the April 2004 rating decision the RO, in pertinent part, granted service connection for status post left femoral shaft fracture - closed, also for post right hamstring muscle tear and right hip strain, and assigned initial noncompensable (0 percent) ratings for all three disabilities effective July 23, 2003. The Veteran appealed those initial ratings. In the January 2012 rating decision since issued during the pendency of this appeal, the RO granted an earlier effective date of December 30, 2002, for the awards of service connection for status post left formal shaft fracture - closed and right hip strain/sprain. A 20 percent rating was assigned (effective December 30, 2002) for the status post left femoral fracture and a 10 percent rating was assigned (also effective December 30, 2002) for the right hip strain/sprain. It was noted these ratings were discontinued effective May 1, 2006, because of the Veteran's return to active duty and were later resumed effective July 1, 2007, the day following his separation from active duty. A separate 0 percent rating for limitation of extension of his right thigh also was granted, but effective December 20, 2005. Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As these claims for increase are appeals of the initial ratings assigned, the possibility of "staged" ratings must be considered. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where there is a question as to which of two evaluations apply, 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A January 2003 private orthopedic examination report shows the Veteran was seen for right-sided iliac joint pain with radiation into the right buttock and a feeling of constriction in the right inner thigh. The pain in the right thigh and buttock was intermittent. He had had a long history of intermittent right hip and leg pain with sitting over the last several years. Examination of the hips showed full internal and external rotation with no pain produced. The diagnostic impression was chronic mechanical back pain secondary to degenerative disc disease of the lumbar spine. An August 2003 private orthopedic surgery evaluation note shows that the Veteran was seen with complaints of longstanding right sided buttock pain. Physical examination showed right hip flexion up to 120 to 130 degrees, full right hip extension, 30 to 40 degrees of abduction and 20 degrees adduction. When the Veteran was put in a flexed and adducted and internally rotated position, he had reproduction of his right buttock pain. He had tightening of the hamstrings when performing the straight leg raise maneuver. The diagnostic impression was probable right sided piriformis syndrome. At an October 2003 VA examination, the Veteran reported a right hip condition and a right and left leg condition. He indicated that on or about August 25, 2002, he was participating in a training exercise with the Reserves. He was performing a hike over irregular terrain, carrying heavy equipment, when he developed pain in the right hip. Subsequently, in August 2003, he was diagnosed with the probable right piriformis syndrome. He indicated that he currently experienced pain in the right buttock along the posterior and lateral aspects of the buttock as opposed to the lateral aspect of the hip. He indicated that he frequently required the use of a cane for ambulation. The Veteran reported two other injuries while in the military. In 1977, while in basic training with the Marines, he sustained a fracture to the left femoral shaft. He was treated with skeletal traction followed by a cast brace. He then underwent a course of physical therapy. Upon recovering from the femur fracture, he was released to the Marine Corps. He stated that he reenlisted in 1980 in the Reserves. There, during a training exercise in 1982, he sustained an injury to the right posterior thigh. He was advised that he had a hamstring muscle tear or pull. He described being treated with crutches for approximately four weeks. He then underwent a course of physical therapy. In regard to the left thigh, the Veteran reported pain, which would come and go. Symptoms increased with changes in the weather and with strenuous activities. In regard to the right hamstring, the Veteran noted occasional pain with strenuous activities. He was currently taking anti-inflammatory medication and Neurontin for his symptoms. The Veteran denied any other injuries to his right hip, right hamstring or left thigh. Examination of the right hip revealed no swelling or deformity. The Veteran exhibited unrestricted pain free range of motion from 0 to 135 degrees of flexion-extension, 45 degrees internal and external rotation and 45 degrees abduction and adduction. There was no tenderness on palpation of the greater trochanter or anteriorly over the femoral head. He did report tenderness on palpation of the buttock near the sciatic notch. Examination of the right posterior thigh revealed no tenderness over the hamstring muscles. He had full range of motion of the knee with flexion-extension from 0 to 135 degrees. Examination of the left hip, thigh and knee revealed no swelling or deformity. Range of motion of the hip was 0 to 135 degrees of flexion-extension, 45 degrees internal and external rotation in each direction, and 0 to 45 degrees of abduction and adduction in each direction. The Veteran had no tenderness on palpation of the thigh musculature or femur. The left leg was clinically one-quarter of an inch shorter than the right. The Veteran walked around the examination room with a normal gait and no limp. X-rays from September 2002 revealed no fractures or bony injuries of the hips or pelvis. Mild degenerative changes were noted near the superior lip of the right acetabulum. MRI films of the hips from October 2002 showed intact bony structures, unremarkable soft tissues and mild degenerative changes. The diagnoses were right hip strain, post right hamstring muscle tear and post left femoral shaft fracture. The examiner found that the Veteran had a mild to moderate level of impairment from the right hip sprain and had sustained a small degree of apparent physical impairment as a result of injury to the right hamstring. Regarding the hamstring, the examiner found that there were no findings on examination to correlate with the Veteran's great subjective complaints. In regard to the left femoral shaft fracture, there were no objective findings on examination or reportedly on X-ray study consistent with this diagnosis. The examiner found that the Veteran sustained a mild degree of physical impairment as a result of this injury. October 2003 X-rays of the hips showed that there were no fractures or dislocations identified; the femoral heads were well-reduced and the pubic symphysis and SI joints were normal. X-ray of the femurs showed that the right femur was unremarkable. The left femur demonstrated a deformity of the mid shaft consistent with a prior fracture. An X-ray of the pelvis showed this left femur deformity but was otherwise unremarkable. A February 2004 private operative report shows that the Veteran underwent a right hip piriformis tendon release with sciatic neurolysis. In a June 2004 letter, a private physician noted that the Veteran reported that due to the bilateral piriformis release surgery, he experienced a great amount of relief on the left side and partial relief on the right. Some of his pain had persisted, however. He described pain in his groin and in the right buttock area. His pain was constant, worse at the end of the day. He was still working as a police officer but had had to use much of his sick time to deal with the pain from his various disabilities, including of the low back and hips. Physical examination showed that hip rotation was full range but that right hip external rotation caused some pain in the groin around to the buttock. The diagnostic assessment was right hip pain since at least the end of August 2002. There was some relief with piriformis release but residual pain. The Veteran had a tight musculature in general. A March 2005 private pain management note indicates that the examining physician could not rule out reoccurrence of an overlying piriformis syndrome. A March 2005 private physical therapy evaluation showed that the Veteran reported constant symptoms in the back and thigh. The Veteran experienced right gluteal pain on flexion and extension of the low back. In a supine lying position, he experienced right lumbar spine pain and right medial thigh pain. In a hook lying position, the right thigh pain was abolished. Repeated extension while lying down produced right gluteal pain and anterior thigh pain, which remained worse as a result. A left side lying position produced the right gluteal pain and groin pain. Private physical medicine consultation reports from May 2005 to November 2007 show that the Veteran generally complained of right buttock, right hip, SI joint and low back pain. In May 2005, physical examination showed full range of motion in the joints of the lower extremities. Manual muscle testing in the hips was 5/5. In August 2005, it was noted that the Veteran received therapeutic nerve blocks that had relieved his pain significantly. However, the pain in his right buttocks had increased again. He also reported some tightness of the left iliotibial band, which he thought was related to his previous fracture of the left femur. In December 2005, it was noted that bilateral SI joint blocks had significantly resolved the Veteran's symptoms on the right side and to some extent on the left side as well. He had some residual symptoms in the right buttocks. Also, on the left side, he had some pain in the left groin but mainly in the anterior and lateral aspects of the left thigh as far down as the knee. Examination of the left hip showed painful range of motion in all directions, particularly on internal rotation and flexion. Pertinent diagnoses included rule out osteoarthritis of the left hip and old malunion of fracture of the shaft of the left femur. In January 2006, the Veteran reported pain in the right lower paramedian region and right buttocks along with pain in the lateral aspect of the left thigh. Examination of the left thigh showed focal tenderness at the mid level. The pertinent diagnosis was rule out recurrent stress fracture at the left femur malunion. In March 2006, it was noted that the Veteran had had X-rays of the left femur, which showed a malunited fracture of the shaft of the femur without any obvious recurrent acute fracture. The Veteran complained of pain primarily located in the right paramedian region and right buttocks with occasional pain in the same distribution on the left side. He also reported that his achiness to the left thigh had decreased since his last visit. Physical examination showed that the Veteran was able to ambulate with some antalgic gait. The pertinent diagnoses were malunited fracture of the shaft of the left femur with no recurrent acute fracture. In July 2007, the Veteran reported pain in the right SI joint and right buttocks. Physical examination showed that internal rotation and full flexion of the right hip did not recreate the Veteran's symptoms. It was noted that the Veteran had been given a diagnosis of leg length discrepancy secondary to his left femur fracture. An early September 2007 report shows that the Veteran was still experiencing pain around the SI joint and right buttocks, with radiation down the upper right thigh down the mid calf and occasionally down to the bottom of the foot. Internal rotation and full flexion of the hip did not recreate the Veteran's symptoms. In late September 2007, the Veteran reported the same distribution of pain. Once again internal rotation and full flexion of hip did not recreate the symptoms. In November 2007, similar findings were shown. Private pain management records from January 2008 to October 2008 relate primarily to sacroiliitis and chronic right sacroiliac pain. The Veteran was noted in October 2008 to have some pain in the right hip. In a December 2008 statement, the Veteran reported that his right hip condition was debilitating and painful. He indicated that routine daily activities were a challenge to him. He could not participate in the activities he used to perform. He reported that he was in constant pain despite taking numerous pain medications. He indicated that he spent 14 to 15 hours a day in bed yet he did not sleep. He asserted that his physical condition caused his forced retirement from the New Jersey State Police 10 years earlier than intended. VA medical records from January 2009 to September 2009 show ongoing orthopedic treatment, primarily for low back pathology. In January 2009, the Veteran was found to have an antalgic gait with good balance. In June 2009, the Veteran described pain located deep within the right buttock, radiating to the lateral hip into the anterior thigh and occasionally into the medial leg/foot. He also reported right thigh weakness, indicating that it felt as if his right leg was not connected to him at times. Examination showed that the Veteran's pelvis was slightly asymmetrical, left higher than right and his gait was antalgic. Right hip internal and external rotation was full and painless. Thomas testing revealed normal flexibility of the hip flexors. During a January 2009 VA examination, the Veteran indicated that his left femur fracture resulted in an altered gait. He also stated that he had right hamstring/buttock pain on and off, worse when sitting, standing or walking. He did experience the pain daily. Additionally, he reported right hip pain radiating to his groin. He indicated that he experienced the hip pain with standing, walking or sitting. Physical examination showed that palpation over the midshaft of the left femur revealed a deformity, which was painful. Range of motion of the right hip was flexion to 110 degrees, extension to 10 degrees, adduction to 20 degrees abduction to 35 degrees, internal rotation to 40 degrees and external rotation to 30 degrees. The Veteran complained of pain in all ranges of motion. Motor strength was 5/5 in all planes of motion. Examination of the hamstring showed that motor strength was 5/5 with knee flexion and hip extension. There was no pain with palpation of the right hamstring. After repetitive motion of the left femur and right hip, there was no additional loss of joint function due to pain, fatigue or lack of endurance. The examiner felt that the Veteran was unable to do any physical employment due to his numerous painful complaints and the large amount of pain medication he was taking. As far as sedentary work, the Veteran could do some light duty desk work with frequent breaks to stretch out his back and hip region. An April 2009 VA compensation and pension note indicates that no disability was found in relation to the Veteran's hamstring muscle tear, as far as the impact on employment. The examiner found that overall, the Veteran should not engage in heavy physical activity (i.e. no heavy lifting, bending, pushing or pulling). As far as sedentary work, the examiner found that the Veteran could perform desk work with frequent breaks to stand and stretch approximately 15 minutes every hour. A June 2009 private orthopedic rehabilitation consultation note shows that the Veteran was seen primarily for chronic back pain. Physical examination showed hip range of motion within normal limits with no pain associated into the groin. There was tightness in the hamstrings. The Veteran walked with a noticeable limp. At an August 2009 VA orthopedic examination, it was noted that the Veteran reported an altered gait from his initial left femur fracture in 1977. He had occasional pain in the midshaft with hot weather and changes in the weather. He stated that the fracture also caused a leg length discrepancy, which he felt caused other problems with his body due to this length difference. He wore a left shoe lift for an assistive device. He had not experienced any incapacitating episodes or flare-ups. There was no interference with job or daily activities in regard to the left femur. The Veteran also reported that he started developing right thigh/buttock pain back in 1979 while he was out running. He was diagnosed with a hamstring sprain/strain. He ended up having surgery for piriformis syndrome. He stated that he still experienced hamstring discomfort but that it was more in the buttock region near the origin of the hamstring. He indicated that this did interfere with his daily activities in that it limited walking and running. There had been no incapacitating episodes or flare-ups. He did not use any assistive device and did not report additional problems with repetitive use. The Veteran reported that his right hip started hurting in 2002 after doing some mountain training. The pain radiated to his right groin and buttocks region. He noted that he had been diagnosed with SI joint dysfunction and piriformis syndrome. There were no incapacitating episodes or flare-ups. The Veteran reported pain daily. There was no problem with repetitive use and no assistive devices were being employed. Physical examination showed that the Veteran's gait was slow and antalgic and he was using a straight cane. There was a leg length discrepancy of 1/4 inch on the left compared to the right. There was no deformity noted in the left femur. There was some discomfort on palpation of the midshaft. There was a deformity with palpation. Right hip range of motion was 100 degrees flexion, 10 degrees extension, 20 degrees adduction and 30 degrees abduction. Internal rotation was to 35 degrees and external rotation was to 30 degrees. There were objective signs of pain with range of motion in all planes. Motor strength was 5-/5 in all planes of motion due to the Veteran's complaint of pain. Examination of the right hamstring showed no deformities. There was no pain to palpation and the Veteran was able to flex the knee and extend the knee without any pain to the hamstring. There were no deficits of the hamstring muscle. Motor strength was 5/5 with hamstring flexion and knee extension strength of 5/5. After repetitive motion of the left femur, left thigh, right hip and right hamstring, there was no additional limitation of joint motion due to pain, fatigue or lack of endurance. The diagnostic assessments were status post left femoral shaft fracture, left leg length discrepancy of 1/4 inch, right hamstring strain/sprain and right hip sprain/strain. Regarding the left femoral shaft fracture, the examiner found that the previous malunion had healed, noting that a January 2009 X-ray specifically showed an old, healed fracture of the left femur. Also, January 2009 X-rays of the hips showed extensive posttraumatic deformity of the left mid femoral diophysis. Regarding the right hamstring tear, there was no disability. The examiner saw no deficit of the right hamstring muscle and no deformity or weakness. There was no separate disability of the right hamstring or right hip. Regarding his other conditions, including the left hip, back and leg length discrepancy, the Veteran was unable to do physical employment due to his numerous painful complaints and conditions. He was also taking large amounts of pain medications so even sedentary work was not recommended for him. A July 2010 private orthopedic progress note shows that the Veteran reported that some of his overall pain may have returned secondary to some of the lifting he was doing at the gym. The treating physician indicated that he discussed with the Veteran modifying his overall exercise regimen. At an October 2011 VA examination, the Veteran reported that because of shortening of his left leg, he had walked with a considerable limp for many years and that this had lead to worsening of his right hip condition. He indicated that he was experiencing continued pain in the right hip since that time, which he described as a burning pain in the gluteal area and sacroiliac area. He noted radiation of the burning mainly in the gluteal area and sacroiliac area. He also noted burning radiation in the anteromedial right thigh but did not report actual paresthesias. He reported that he had developed decreased active range of motion of the right hip and that his flare-ups had worsened in degree. Regarding the left leg, he reported continued occasional deep pain at the fracture site. His main concern was that he had a continual limp, which had worsened the right hip condition and also resulted in severe back problems. He continued to use a lift in his left shoe. The Veteran reported several weekly right hip flare-ups resulting in increased pain in the buttock and gluteal area. The Veteran stated that the pain felt like "bone on bone." He felt that there was a loss of control of his right leg and decreased range of motion during a flare-up. He also felt that his limp became more pronounced and his leg would fatigue more easily. He did not describe any actual flare-ups involving the left leg/hip. Physical examination showed that right hip flexion was 95 degrees with pain beginning at 10 degrees, right hip extension was greater than 5 degrees with pain beginning at 0 degrees, adduction was not lost beyond 10 degrees and adduction was not limited such that the Veteran could not cross his legs. Also rotation was not limited such that the Veteran could not toe out more than 15 degrees. There was no additional loss of motion on repetitive use. Left hip range of motion was similar except that flexion was to 110 degrees. There was also no additional loss of motion on repetitive use. The Veteran was noted to have functional impairment of the hips in that he exhibited less movement than normal, excess fatigability, pain on movement and interference with sitting, standing and weight-bearing. The Veteran had localized tenderness to the joints/soft tissues of the right hip. Muscle strength of the hips on flexion, abduction and extension was 5/5. There was no ankylosis of either hip. Regarding the left femur, the Veteran was found to have malunion with moderate hip disability. He was also noted to have a .5 cm leg length discrepancy. The examiner found that the right hip condition did impact the Veteran's ability to work in that he had reported that he had had to leave his job as a State Police Officer in 2004 because of chronic pain with inability to walk or stand as required. He had not sought further employment since that time. He claimed that he was always in pain from the right hip and his non-service connected spinal pain. The Veteran also reported that his right hip condition had affected his daily life in that he could not engage in exercise or sports and had difficulty with chores and shopping. An October 2011VA muscles examination report shows that the Veteran reported that he did not actually attribute any of his current symptoms to his hamstring injury in service. He was more focused on his back, SI joint and right hip pain, which he believed was related to the left femur fracture. Physical examination showed 5/5 strength on knee flexion bilaterally. The examiner found that the Veteran's past hamstring muscle injury did not affect his ability to work. There was no current disability that was clearly associated with the post right hamstring tear. Social Security Administration (SSA) records show that the Veteran was awarded disability payments for discogenic and degenerative disorders of the back as well as arthopathies. Initial Rating higher than 20 percent for Status Post Left Femoral Shaft Fracture This disability is rated under Diagnostic Code 5255 for impairment of the femur. Diagnostic Code 5255 provides a 20 percent rating for malunion of the femur with moderate knee or hip disability; a 30 percent rating malunion of the femur with marked knee or hip disability; a 60 percent rating for fracture of surgical neck of femur with false joint; or fracture of shaft or anatomical neck of femur with nonunion, without loose motion, weight bearing preserved with aid of brace; and a 80 percent rating for fracture of shaft or anatomical neck of femur, with nonunion, with loose motion (spiral or oblique fracture). Normal range of motion of the hips is from 0 to 125 degrees of flexion and from 0 to 45 degrees of abduction. 38 C.F.R. § 4.71a, Plate II. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. The Rating Schedule provides a maximum rating of 10 percent for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. The Rating Schedule provides ratings of 10, 20, 30, and 40 percent for flexion of the thigh limited to 45, 30, 20, and 10 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Impairment of the thigh is evaluated pursuant to Diagnostic Code 5253, which provides that a 10 percent rating is warranted for limitation of rotation, with an inability to toe out the affected leg more than 15 degrees, and for limitation of adduction, with an inability to cross legs. A 20 percent rating is warranted for limitation of abduction, with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5254, an 80 percent disability rating applies where the Veteran has a flail joint of the hip. Diagnostic Code 5250 requires ankylosis of the hip. Ankylosis is "mobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999). Considering Diagnostic Code 5255, the evidence does not show that the Veteran's post fracture of the femur with malunion has resulted in more than moderate knee or hip disability. To the contrary, the October 2011 VA examiner specifically found that the Veteran's left hip impairment from this disability was moderate in degree rather than marked. Also, the August 2009 VA examiner simply found that there was some discomfort on palpation of the midshaft along with a deformity with this palpation, and a leg length discrepancy, findings that are not indicative of more than a moderate level of left hip disability. Additionally, the October 2003 VA examiner found that the Veteran had only sustained a mild degree of left hip physical impairment due to the malunion. Further, there is no other medical evidence of record tending to indicate that the Veteran's left hip impairment from the femoral malunion is more than moderate in degree. Moreover, there is no indication from the medical evidence or specific allegation from the Veteran or his representative that the malunion has resulted in any left knee disability. Accordingly, a rating in excess of 20 percent for moderate impairment of the left hip due to the femoral malunion is not warranted at any time during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Considering Diagnostic Code 5251, the evidence does not show that the Veteran has limitation of extension of the left thigh to 5 degrees. Notably, although the October 2011 VA examiner checked the box on the examination report indicating that left hip extension was 5 degrees or greater, he also affirmatively found that the Veteran was able to extend the knee and flex the knee without any pain in the hamstrings, while not noting any limitation when performing these maneuvers. This finding suggests the ability to fully extend the thigh. Also, during the October 2003 VA examination, the Veteran was specifically found to have full flexion-extension of the knee (as noted full extension is to 0 degrees) and there are no other findings of record tending to indicate extension of thigh limited to 5 degrees. Nor has the Veteran alleged that his thigh extension is so limited. Further, even if the October 2011 VA examiner's extension finding is indicative of limitation of extension to 5 degrees, this limitation is already accounted for in the examiner's finding of moderate overall left hip disability due to the femur malunion, and thus accounted for by the existing 10 percent rating. Accordingly, assigning a separate compensable rating for such limitation would amount to impermissible pyramiding. 38 C.F.R. § 4.14. Considering Diagnostic Code 5252, flexion of the left hip/thigh has not been shown to be limited even to 45 degrees. To the contrary, during the October 2011 VA examination, left hip flexion was to 110 degrees. Nor are there any other findings of record during the appeal period of flexion limited to 45 degrees or less. Accordingly, there is no basis for an assignment of a rating under Diagnostic Code 5252. Similarly, considering Diagnostic Codes 5253, left hip/thigh abduction has not been shown to be 10 degrees or less, left hip/thigh adduction has not been shown to prevent the Veteran from crossing his legs and limitation of rotation has not been shown to a level where the Veteran cannot toe-out more than 15 degrees with the affected leg. Notably, the October 2011 VA examiner specifically found that none of these limitations were present and there is no medical evidence of record to the contrary. Moreover, the Veteran has not specifically alleged that any of these limitations are present. Considering Diagnostic Codes 5250 and 5254 neither a left hip flail joint nor ankylosis has been shown nor alleged. Consequently, ratings under these codes are also not warranted. Accordingly, considering all the potentially codes applicable to the left femur disability, there is no basis for assigning a rating in excess of 20 percent for any time frame within the appeal period. 38 C.F.R. § 4.71a. Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the veteran has functional loss beyond that currently compensated. 38 C.F.R. §§4.40, 4.45, Deluca v. Brown 8 Vet. App. 202 (1995). In this regard, during the October 2011 VA examination's left hip range of motion testing, there was no additional loss of motion of the hip after repetitive use. Although the Veteran has generally reported significantly more functional loss, these reports have tended to include loss of function associated with his non-service connected lumbar spine disability, along with his other service-connected musculoskeletal disabilities. Accordingly, given the examiner's specific repetitive use finding and the overall objective findings indicative of an overall moderate impairment of the femur, the Veteran is adequately compensated for his functional loss by assignment of the existing 20 percent rating. The Board notes that the Veteran has been found to have consistent pain in the sacroiliac joints and the buttocks, areas relatively close in location to the left femur/hip. The medical evidence does not show that these problems are manifestations of his service-connected hip disability, however. Rather, they appear to be related to his non-service connected lumbar degenerative disc disease. Accordingly, they may not be considered when assigning a rating for the service-connected femur fracture. Additionally, even if they could be considered, they are not shown to result in any limitation of function of the left femur, which would warrant assignment of a rating in excess of 20 percent for the left hip disability. Initial Rating higher than 10 percent for the Right Hip Sprain The Veteran's right hip strain is rated as 10-percent disabling based on functional loss due to pain under 38 C.F.R. § 4.59. When evaluating musculoskeletal disabilities that are based on limitation of motion, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Indeed, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The rule against pyramiding (see 38 C.F.R. § 4.14) does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). And although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body such as excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Accordingly, the Board must determine whether a rating in excess of 10 percent is warranted under any applicable rating code. Considering Diagnostic Code 5251, the evidence does not show that the right hip disability is manifested by limitation of extension of the hip/thigh to 5 degrees. The October 2011 VA examiner did check the box on the examination report indicating that right hip extension was 5 degrees or greater, which would appear to indicate that the extension was limited to 5 degrees or more. See e.g. 38 C.F.R. § 4.71a, Plate II, indicating that normal knee extension is beyond 5 degrees to 0 degrees. However, the examiner also affirmatively found that the Veteran was able to extend the right knee and flex the right knee without any pain in the hamstrings while not noting any limitation when performing these maneuvers. This finding suggests the ability to fully extend the right thigh. Similarly, while the January 2009 VA examiner found right thigh extension to 10 degrees, he also did not appear to find that the extension was actually limited. Additionally, during the October 2003 VA examination, the Veteran was specifically found to have full flexion-extension of the right knee (as noted, full extension of the knee is to 0 degrees). Nor has the Veteran alleged that his right thigh extension is actually limited to 5 degrees. Further, even if the January 2009 and October 2011 VA examiners' findings are indicative of extension of the thigh limited to 5 degrees, such limitation still only warrants the assignment of a 10 percent rating. Notably, the Veteran is already receiving a 10 percent rating for his right hip disability on the basis of painful, but noncompensable motion, essentially analogous to assignment of such a rating based on painful but non-compensable limitation of motion of a single joint with arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. This is because, read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Here, though, if the Veteran's limitation of motion (i.e. extension) is actually compensable, the compensable rating under Diagnostic Code 5251 takes the place of the rating analogous to Diagnostic Code 5003 (i.e. assigning separate 10 percent ratings under Diagnostic Code 5251 and as analogous to Diagnostic Code 5003 amounts to impermissible pyramiding rating under 38 C.F.R. § 4.14). Thus, even if a 10 percent rating for right thigh extension is warranted, it cannot be assigned as a separate 10 percent rating but may only take the place of the existing 10 percent rating based on painful motion. Considering Diagnostic Code 5252, flexion of the right hip/thigh has not been shown to be limited even to 45 degrees. To the contrary, during the October 2011 VA examination, right hip flexion was to 95 degrees. Nor are there any other findings of record during the appeal period of flexion limited to 45 degrees or less. Accordingly, there is no basis for assignment of a rating under Diagnostic Code 5252. Similarly, considering Diagnostic Code 5253, right hip/thigh abduction has not been shown to be 10 degrees or less, right hip/thigh adduction has not been shown to prevent the Veteran from crossing his legs and limitation of right hip rotation has not been shown to a level where the Veteran cannot toe-out more than 15 degrees with the affected leg. Notably, the October 2011 VA examiner specifically found that none of these limitations were present and there is no medical evidence of record to the contrary. Moreover, the Veteran has not specifically alleged that any of these limitations are present. Accordingly, a rating under Diagnostic Code 5252 is not warranted. Considering Diagnostic Codes 5250 and 5254 neither a left hip flail joint nor ankylosis has been shown nor alleged. Consequently, ratings under these codes are also not warranted. Also, as malunion or other impairment of the right femur is not shown, Diagnostic Code 5255 is not applicable. Accordingly, considering all the potential codes applicable to the right hip disability, there is no basis for assigning a rating in excess of 10 percent for the right hip strain during any time frame within the appeal period. 38 C.F.R. § 4.71a. Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the Veteran has functional loss beyond that currently compensated. 38 C.F.R. §§4.40, 4.45, Deluca v. Brown 8 Vet. App. 202 (1995). In this regard, during the October 2011 VA examination range of motion testing, there was no additional loss of motion of the right hip after repetitive use. This was also the case during the August 2009 VA examination. Additionally, the October 2003 VA examiner characterized the overall level of impairment of the right hip as mild to moderate. Although, this finding, if considered in a vacuum, could arguably support assignment of a higher, 20 percent rating for functional loss, given the specific findings of the later VA examiners concerning repetitive use; and given that the October 2003 VA examiner found that the Veteran had essentially normal right hip range of motion, the Board finds that this finding is supportive of assignment of no more than the existing 10 percent rating based on functional loss. Although the Veteran has generally reported significantly more functional loss resulting from the right hip, these reports tend to include loss of function associated with his non-service connected lumbar spine disability. Accordingly, given the examiners' specific repetitive use findings and the overall objective findings indicative of an overall moderate impairment of the femur, the Veteran is adequately compensated for his functional loss by assignment of the existing 10 percent rating. Once again, the Board notes that the Veteran has been found to have consistent pain in the sacroiliac joints and the buttocks, areas relatively close in location to the right hip. The medical evidence does not show that these problems are manifestations of his right hip disability; rather, the evidence tends to indicate that they result from his non-service connected lumbar degenerative disc disease. Accordingly, they may not be considered when assigning a rating for the service-connected right hip disability. Additionally, even if they could be considered, they are not shown to result in any limitation of function of the right hip, which would warrant assignment of a rating in excess of 10 percent. Initial Compensable Rating for the Post Right Hamstring Muscle Tear The Veteran's post right hamstring muscle tear has been rated as noncompensable under Diagnostic Code 5313. This Code provides ratings for injury involving Muscle Group 13. Muscle Group 13 involves the posterior thigh (i.e. hamstring) group, including (1) biceps femoris; (2) semimembranosus; and (3) semitendinosus, which functions in extension of the hip and flexion of the knee, outward and inward rotation of the flexed knee, acting with Muscle Group 14 to synchronize simultaneous flexion of the hip and knee and extension of the hip and knee by belt-over-pulley action at the knee joint. Slight, moderate, moderately severe and severe disability of Muscle Group 13 warrants a 0, 10, 30 and 40 percent disability evaluation, respectively. 38 C.F.R. § 4.73, Diagnostic Code 5313 (2012). In the instant case, the Veteran's post hamstring tear has not been shown to be more than slightly disabling during any point during the rating period. Notably, during the October 2003 VA examination, the examiner found that there were no findings on examination to correlate the Veteran's subjective complaints. Similarly, the April 2009 VA examiner found no disability in relation to the Veteran's muscle tear, the August 2009 VA examiner found that there were no deficits of the hamstring muscle with 5/5 motor strength and the October 2011 VA examiner found that there was no current disability clearly associated with the prior right hamstring tear, noting that the Veteran himself did not actually attribute any of his current symptoms to the hamstring injury in service. The Veteran has generally been found to have tight hamstrings but without any significant loss of function associated with such tightness, his overall level of muscle disability cannot be considered more than slight. Nor are there any other medical findings of record showing any significant functional impairment of the hamstring. Further, although the Veteran has previously contended that he does experience significant functional limitations as result of the hamstring tear, given the consistent medical findings of no significant impairment throughout the rating period and given the Veteran's specific October 2011 acknowledgement of a lack of observed impairment, the weight of the evidence is against the presence of any such significant impairment during the rating period. Accordingly, as more than slight impairment of the hamstring is not shown, a compensable rating for the hamstring disability is not warranted. 38 C.F.R. § 4.73, Diagnostic Code 5313. Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the Veteran has functional loss beyond that currently compensated. 38 C.F.R. §§4.40, 4.45, Deluca v. Brown 8 Vet. App. 202 (1995). Once again, the evidence simply does not show that the Veteran has any significant loss of function due to the right hamstring disability. The October 2003 VA examiner did refer to a "small degree of apparent physical impairment as a result of injury to the right thigh." However, this finding refers to the Veteran's self-report, which was not correlated by the examiner's objective findings. Also, such a small degree of impairment is compatible with the existing noncompensable rating assigned for slight hamstring disability. Moreover, as mentioned above, the Veteran affirmatively reported during the October 2011 VA examination that he did not actually attribute any of his current symptoms to his hamstring injury in service. Given this combination of objective findings and updated reporting, the weight of the evidence is against assigning a compensable rating for the right hamstring disability based on functional loss. Once again, the Board notes that the Veteran has been found to have consistent pain in the sacroiliac joints and the buttocks, areas relative close in location to the right hamstring. The Board notes, however, that the medical evidence does not show that these problems are manifestations of his service-connected hamstring disability. Rather, the evidence tends to indicate that they result from his non-service connected lumbar degenerative disc disease. Accordingly, they may not be considered when assigning a rating for the service-connected right hamstring disability. Extra-schedular Consideration In evaluating these claims for higher initial ratings for these disabilities, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). To this end, the Board has considered whether any of the Veteran's claims for increase should be referred for consideration of an extra-schedular evaluation and has concluded that no such referral is warranted at any time during the rating period. As explained above, his symptomatology resulting from these three separate service-connected disabilities, including pain in both hips, malunion of the left femur and tightness of the hamstrings, is fully contemplated by the pertinent diagnostic criteria. There is nothing in the record suggesting his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards to any of these disabilities. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). B. Earlier Effective Date for the 100 Percent Rating for the Adjustment Disorder with Depressed Mood Generally, the effective date of an award based on an original claim or a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a) (West 2002). In the case of a claim for increase, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). The U. S. Court of Appeals for Veteran's Claims (Court) and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)(2). See also Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998). The Federal Circuit Court reaffirmed that "the plain language of [section] 5110(b)(2) ... only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). A claim for an earlier effective date must generally come before the Board as a result of a timely appeal from a decision granting service connection or an increased rating, because a Veteran cannot make a freestanding claim for an earlier effective date absent a claim of clear and unmistakable error (CUE) in a prior rating decision. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). This earlier effective date claim being decided in this decision arises from the Veteran's timely appeal of the June 2009 rating decision granting a 100 percent rating for his adjustment disorder with depressed mood. In a prior April 2006 rating decision, the RO had granted service connection for adjustment disorder with depressed mood and had assigned an initial 70 percent evaluation effective March 28, 2005. The Veteran did not appeal that prior decision and it became final and binding on him based on the evidence then of record. 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. See also 38 C.F.R. § 3.156(b) and (c) discussing situations when prior decisions instead have remained pending, including as a result of obtaining official service department records not previously considered, which in turn vitiates the need to submit new and material evidence under § 3.156(a) to reopen the claim). In a subsequent June 2009 rating decision, the RO granted an increased 100 percent rating effective December 8, 2008, the date the Veteran's claim for entitlement to a TDIU was received. Essentially, in assigning that effective date, the RO appears to have considered his claim for a TDIU also to encompass a claim for increase for his adjustment disorder with depressed mood. The 100 percent rating was assigned based on a finding from December 31, 2008 and January 2009 VA examinations indicating he had total occupational and social impairment because of his service-connected psychiatric disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court (CAVC) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. Thus, under Rice, VA adjudicators have authority to assume jurisdiction over a derivative TDIU claim if predicated on the service-connected disability for which the Veteran is requesting a higher rating. A TDIU claim is not a claim separate or distinct from the underlying increased-rating claim. See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased-compensation claims apply to a TDIU claim); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a TDIU claim is informally raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest possible rating for that disability; and (3) submits evidence of unemployability)); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased-rating claim only when the Roberson requirements are met). Similarly, in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court held it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his underlying disability, which in that case was posttraumatic stress disorder (PTSD). Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability or disabilities. Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim. But there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Here, during an April 2010 informal conference, the Veteran asserted that the 100 percent rating for his adjustment disorder with depressed mood should date back to 2007 when he was discharged from service. But as the April 2006 rating decision granting the earlier 70 percent rating for this psychiatric disability became final and as VA did not receive a claim for increase for the disability prior to December 8, 2008, the earliest possible effective date for the increased, 100 percent, rating is December 8, 2007, i.e., one year immediately preceding the receipt of this increased-rating claim. Gaston, 605 F.3d 979, 983 (Fed. Cir. 2010). However, as it was not factually ascertainable that the psychiatric disability had increased in severity to the 100 percent level until the findings of the December 31, 2008 and January 2009 VA examinations, there is no basis for assigning a rating higher than 70 percent prior to December 8, 2008. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). Although the Veteran has argued that the effective date should go back to June 2007, when he separated from service, there no evidence of record to indicating he had total occupational and social impairment due to his service-connected psychiatric disability at that time or any subsequent time prior to the December 31, 2008 and January 12, 2009 VA examinations. Accordingly, there is no basis for assigning an effective date for the 100 percent rating for his adjustment disorder with depressed mood prior to December 8, 2008, the date his claim for increase was received. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). ORDER The claim for an initial rating higher than 20 percent for the status post left femoral shaft fracture - closed (exclusive of the period from May 1, 2006, until July 1, 2007, pursuant to 38 C.F.R. § 3.654(b), due to the Veteran's return to active duty status) is denied. The claim for an initial rating higher than 10 percent for the right hip sprain (exclusive of the period from May 1, 2006, until July 1, 2007, pursuant to 38 C.F.R. § 3.654(b), due to the Veteran's return to active duty status) is denied. The claim for an initial compensable rating for the limitation of extension of the right thigh is denied. The claim for an initial compensable rating for the post right hamstring muscle tear is denied. The claim for an effective date earlier than December 8, 2008, for the assignment of the 100 percent schedular rating for the adjustment disorder with depressed mood is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs