Citation Nr: 1327974 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-05 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left hip disorder, to include as due to left femur fracture with three-quarter inch shortening, and/or patellofemoral syndrome of the right knee. 2. Entitlement to service connection for a left knee disorder, to include as due to left femur fracture with three-quarter inch shortening, and/or bilateral hip disorder, and/or patellofemoral syndrome of the right knee. 3. Entitlement to a rating higher than 20 percent for left femur fracture with three-quarter inch shortening. 4. Entitlement to service connection for a low back disorder, to include as due to femur fracture with three-quarter inch shortening, and/or patellofemoral syndrome of the right knee. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from November 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for entitlement to a total disability rating based on individual unemployability (TDIU) is part of an appeal for a higher rating claim when such claim is raised by the record. Here, the Board notes that in an April 2013 statement, the Veteran asserted he could not work even a part-time job due to the pain caused by his service-connected left leg. See April 2013 statement. As such, the Board finds that the record raises a claim for TDIU. The Board notes that the RO included the issue of entitlement to a right hip disorder in the April 2012 Supplemental Statement of the Case (SSOC) and did not include the issue of entitlement to a low back disorder. The Veteran did not complete an appeal for the issue of entitlement to service connection for a right hip disorder, and as such, this issue is not on appeal. See February 2010 VA Form 9. The Board is remanding the claim of entitlement to a low back disorder, and therefore, the Board finds the Veteran is not prejudiced by the RO's omission in the April 2012 SSOC. The issues of entitlement to service connection for a low back disorder and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A left hip disorder is not established by the evidence of record. 2. A left knee disorder is not established by the evidence of record. 3. The Veteran's left femur fracture with three-quarter inch shortening is not manifested by ankylosis, flail joint of the hip, malunion of the femur with marked knee or hip disability, a shortening of the lower extremity from 1 1/4 inch to 2 inches, or a showing of more than a noncompensable limitation of motion. CONCLUSIONS OF LAW 1. Service connection for a left hip disorder, to include as due to left femur fracture with three-quarter inch shortening, and/or patellofemoral syndrome of the right knee, is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 2. Service connection for a left knee disorder, to include as due to left femur fracture with three-quarter inch shortening, and/or bilateral hip disorder, and/or patellofemoral syndrome of the right knee, is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 3. The criteria for a rating higher than 20 percent for left femur fracture with three-quarter inch shortening are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5250 - 5255; 5275 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied through a June 2008 letter to the Veteran. In a claim for an increased evaluation, the VCAA requirement is generic notice, that is, namely, evidence demonstrating a worsening or increase in severity of the disability, the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2009 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran and VA's respective duties for obtaining evidence. In any event, in his statements and testimony, the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claim. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). The duty to assist has also been satisfied. The RO obtained service treatment records, VA outpatient medical records, private medical records, and the Veteran was afforded VA examinations. Virtual VA records have also been reviewed. Therefore, the available medical evidence and records have been obtained in order to make an adequate determination. Neither the Veteran nor his representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claims. The VA's duty to assist in the development of the claims is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection Claims The Veteran seeks entitlement to service connection for a left hip disorder and a left knee disorder. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). (CONTINUED ON NEXT PAGE) A. Entitlement to Service Connection for a Left Hip Disorder, to Include as Due to Left Femur Fracture with Three-Quarter Inch Shortening, and/or Patellofemoral Syndrome of the Right Knee The Veteran seeks entitlement to service connection for a left hip disorder. He asserts he experiences pain in his hip due to his service-connected fracture of the left femur. Service treatment records were reviewed and do not contain any symptoms, treatment or diagnosis of a left hip disorder, other than the left femur fracture that Veteran sustained during service. Post-service records were reviewed; however, there is no diagnosis of a left hip disorder. The Veteran's massage therapist submitted a statement in July 2008 describing the Veteran's hip problem. The therapist stated that the Veteran's fracture during service resulted in his left leg being 3/4 of an inch shorter than his right leg, which causes back, hip, shoulder and neck problems. However, no diagnosis was indicated. Private records indicate that the Veteran sought treatment for left hip pain in July 2008. Two x-rays demonstrated no evidence of a new fracture, no evidence of a bone infection, and no significant osteoarthritis of the left hip. The Veteran had a bone scan completed of the left hip in August 2008. It was noted that the Veteran had increased uptake in the region of the proximal femur. The physician stated that the radiologist believed there was additional bone in this region causing the increased uptake, but the physician stated he believed in might be chronic osteomyelitis. The Veteran was afforded a VA examination in November 2008. Examination revealed his left hip had a flexion of zero to 90 degrees, external rotation of zero to 30 degrees, and internal rotation of zero to 25 degrees. The Veteran complained of hip pain. An x-ray of the left hip was negative. The impression was left hip pain of unknown etiology, with no evidence of degenerative joint disease. A current diagnosis list from the Veteran' private physician in June 2011 did not indicate any left hip disorder. The Veteran was afforded an additional VA examination in February 2012. The Veteran complained of left hip pain, for approximately the past three years, which was dull and provoked by prolonged walking. Examination revealed no objective evidence of painful motion of the left hip, although there was less movement than normal for both hips. X-rays of the left hip revealed normal joint space and a normal left hip. The examiner noted that the Veteran's left hip was normal and the range of motion was identical in both hips, partially limited by body habitus. The Board notes that the Veteran has asserted he suffers from a left hip disorder. Complaints, however, are not enough to establish service connection. There must be competent medical evidence of a current disability resulting from that condition or injury. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."). The Board has considered the Veteran's arguments. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report a contemporaneous medical diagnosis and is competent in describing symptoms that support a later diagnosis by a medical professional, there is no competent evidence from any health-care provider that he had a diagnosis of a left hip disorder. The Board finds that the most probative evidence consists of the post-service treatment and examinations. The Board notes "Congress specifically limits entitlement to a service-connected disease or injury where such cases have resulted in a disability...in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225. Here, there is no evidence of any left hip disorder, other than pain. In sum, because post-service records do not indicate that the Veteran has a diagnosis of a left hip disorder, the Board finds that the evidence is against a grant of service connection for this disorder. B. Entitlement to Service Connection for a Left Knee Disorder, to Include as Due to Left Femur Fracture with Three-Quarter Inch Shortening, and/or Bilateral Hip Disorder, and/or Patellofemoral Syndrome of the Right Knee The Veteran seeks entitlement to service connection for a left knee disorder. He asserts he experiences pain in his left knee. Service treatment records were reviewed. It was noted that after the Veteran's injury in December 1967, the Veteran experienced left knee stiffness secondary to his fracture of the left femur. Records indicate it was treated and improved. See December 1967 note. The Veteran's separation examination from September 1968 did not indicate any left knee disorder. Post-service records were reviewed; however, there is no diagnosis of a left knee disorder. The Veteran was afforded a VA examination in November 2008. Physical examination revealed the left knee was tender to palpation. His flexion was zero to 106 degrees and he complained of pain at the end of flexion. He had an absent patellar reflex. He walked with an antalgic gait, favoring the left leg. X-rays of the left knee were negative. The examiner stated the Veteran had left knee pain of unknown etiology, with no evidence of degenerative joint disease of the left knee. A current diagnosis list from the Veteran's private physician in June 2011 did not indicate any left knee disorder. The Board notes that the Veteran has asserted he suffers from a left knee disorder. Complaints, however, are not enough to establish service connection. There must be competent medical evidence of a current disability resulting from that condition or injury. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."). The Board has considered the Veteran's arguments. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report a contemporaneous medical diagnosis and is competent in describing symptoms that support a later diagnosis by a medical professional, there is no competent evidence from any health-care provider that he had a diagnosis of a left knee disorder. The Board finds that the most probative evidence consists of the post-service treatment and examinations. The Board notes "Congress specifically limits entitlement to a service-connected disease or injury where such cases have resulted in a disability...in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225. Here, there is no evidence of any left knee disorder, other than pain. In sum, because post-service records do not indicate that the Veteran has a diagnosis of a left knee disorder, the Board finds that the evidence is against a grant of service connection for this disorder. III. Entitlement to a Rating Higher than 20 Percent for Left Femur Fracture with Three-Quarter Inch Shortening The Veteran seeks a rating higher than 20 percent for his left femur fracture residuals with three-quarter inch shortening. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Veteran was involved in an accident during service. As a result of his injuries, the Veteran was granted service connection for residuals of a fracture of the left femur in a February 1969 rating decision, at which time a 20 percent rating was assigned, effective September 1968. In June 2008, the Veteran submitted a claim for entitlement to a rating higher than 20 percent. The Veteran is currently rated as 20 percent disabled under 38 C.F.R. § 4.71a, Diagnostic Code 5255. A rating of 20 percent is warranted when there is malunion of the femur with moderate knee or hip disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5255. A rating of 30 percent is warranted when there is malunion of the femur with marked knee or hip disability. Id. A rating of 60 percent is warranted when there is fracture of the surgical neck of the femur with false joint, or when there is impairment of the femur with nonunion, without loose motion and weight bearing is preserved with aid of a brace. Id. A rating of 80 percent is warranted when there is fracture of the shaft or anatomical neck of the femur with nonunion and loose motion (spiral or oblique fracture). Id. The words "moderate" and "marked" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2012). Additional pertinent criteria are Diagnostic Code 5275, for shortening of the lower extremity. A rating of 10 percent is warranted for shortening of 11/4 to 2 inches. 38 C.F.R. § 4.71a, Diagnostic Code 5275. A rating of 20 percent is warranted for shortening of 2 to 21/2 inches; a rating of 30 percent for 21/2 to 3 inches; a rating of 40 percent for 3 to 31/2 inches; a rating of 50 percent for 31/2 to 4 inches; and a rating of 60 percent for over 4 inches. Id. Other potentially applicable Diagnostic Codes include 5251 and 5252, providing that where extension of the thigh is limited to 5 degrees, an evaluation of 10 percent is for assignment. See 38 C.F.R. § 4.71a, Diagnostic Code 5251. A 10 percent evaluation requires flexion of the thigh limited to 45 degrees. A 20 percent evaluation requires flexion limited to 30 degrees, while a 30 percent evaluation requires flexion limited to 20 degrees and a 40 percent evaluation requires flexion limited to 10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5252. Pursuant to Diagnostic Code 5253, impairment of the thigh manifested by limitation of adduction, with the inability to cross legs, or rotation and inability to toe-out more than 15 degrees on the affected leg, warrants a 10 percent evaluation. A 20 percent evaluation is warranted for limitation of abduction of the thigh if motion is lost beyond 10 degrees. The Veteran was afforded a VA examination in November 2008. The Veteran's left hip flexion was zero to 90 degrees on the left, external rotation zero to 30 degrees, and internal rotation zero to 25 degrees. The left knee was tender to palpation with flexion from zero to 106 degrees. The Veteran complained of hip and knee pain at the end of flexion. He had an absent patellar reflex on the left, but Achilles reflex was normal. He raised on his toes, rocked back on his heels, balanced on either leg but could only squat three-quarters of the way down due to knee and hip pain on the left. He walked with an antalgic gait, favoring the left leg. Leg measurements were 37 and a quarter inch on the left, 38 inches on the right. The impression was fracture of the left femur, healed, with residual three-quarter inch leg length shortening, and left knee and hip pain. The examiner stated it would be difficult to relate the Veteran's left hip or left knee pain to his residuals of left femur fracture. Private records indicate that the Veteran sought treatment for left hip pain in July 2008. Two x-rays demonstrated no evidence of new fracture, no evidence of a bone infection, and no significant osteoarthritis of the left hip. The Veteran had a bone scan completed of the left hip in August 2008. It was noted that the Veteran had increased uptake in the region of the proximal femur. The physician stated that the radiologist believed there was additional bone in this region causing the increased uptake, but the physician stated he believed in might be chronic osteomyelitis. The Veteran was afforded a VA examination in February 2012. He reported daily pain in the left thigh region as well as pain in the left hip. Left hip flexion was 90 degrees with no objective evidence of painful motion. Left hip extension was zero degrees, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions. It was noted that the Veteran had less movement than normal, but no localized tenderness or pain to palpation for joints/soft tissue of the hip. Muscle strength was 5/5 for hip flexion, abduction, and extension. The Veteran did not have ankylosis of either hip joint. The examiner noted that the Veteran had leg length discrepancy of 3/4 inch, but did not have malunion or nonunion of the femur, flail hip joint or a total hip joint replacement. The Veteran had a scar, but it was not painful, unstable, or greater than 6 square inches. The examiner noted that the Veteran had mild tenderness of the lateral left thigh with palpation. The Veteran was noted to use a cane occasionally around the house, but not elsewhere. There was no traumatic arthritis demonstrated. After consideration of all the evidence of record, there is no evidence that the Veteran's fracture of the left femur warrants a disability rating higher than 20 percent. Ankylosis is not demonstrated, nor is there any indication of limitation of extension, flexion, abduction or rotation, or flail joints as would warrant a higher compensable evaluation under Diagnostic Codes 5250 - 5254. Furthermore, to warrant a separate rating for shortening of the lower extremity, the Veteran' must have a shortening of 1 1/4 to 2 inches. The Veteran does not meet this criterion as he was measured to have a shortening of three-quarters inch. See February 2012 VA examination. The evidence also does not indicate that the Veteran suffers from marked knee or hip disability due to malunion of the femur. Evidence indicates the Veteran suffers from hip and knee pain and that his range of motion is less than normal; however, the February 2012 VA examiner noted that the Veteran's hip or thigh condition would not affect the Veteran's ability to work and his hip was normal. The Veteran also did not require an assistance device as a normal mode of locomotion. The Veteran avers that pain and reduced motion involving both his hip and knee is disabling and warrants more than a 20 percent rating. The Veteran is competent to state what he experiences through his senses, to include the occurrence and frequency of pain. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). While his complaints of pain are credible and otherwise substantiated by the record, his contention that an increased rating is warranted is not corroborated by the evidence on file. Rather, a preponderance of the evidence is against the assignment of a schedular evaluation in excess of 20 percent under DC 5255 or any analogous Diagnostic Code, or on the basis of pain and functional loss. The Board has considered whether a higher disability evaluation is warranted under Diagnostic Code 5255 on the basis of functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 205-07. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. In evaluating the Veteran's claim under DeLuca, the Board notes that the Veteran's limits in range of motion are contemplated by the 20 percent rating assigned currently assigned. Furthermore, during the February 2012 VA examination, there was no objective evidence of painful motion and the Veteran's range of motion was not reduced due to weakness or fatigability after repetitive testing. As such, the preponderance of the evidence does not support the grant of a disability rating higher than 20 percent based upon functional loss due to pain, weakness, and fatigue. Other medical evidence of record includes complaints and treatment of left leg pain. This evidence supports current diagnosis of left femur fracture with three-quarter inch shortening, but does not provide a basis to warrant a rating higher than 20 percent under any diagnostic criteria. The Board has also considered whether any additional Diagnostic Codes are applicable; however, the Board finds that the ratings described herein are most appropriate. In summary, the Board finds that the currently assigned 20 percent rating is appropriate and the preponderance of the evidence is against a finding that an evaluation in excess of 20 percent is warranted. (CONTINUED ON NEXT PAGE) Extraschedular Evaluation The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular 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). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's left leg disability is inadequate. A comparison of the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule shows that the rating criterion reasonably describes the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluations for the disabilities are inadequate (which they manifestly are not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disability. Additionally, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the disabilities on appeal cause impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to service connection for a left hip disorder, to include as due to left femur fracture with three-quarter inch shortening, and/or patellofemoral syndrome of the right knee, is denied. Entitlement to service connection for a left knee disorder, to include as due to left femur fracture with three-quarter inch shortening, and/or bilateral hip disorder, and/or patellofemoral syndrome of the right knee, is denied. Entitlement to a rating higher than 20 percent for left femur fracture with three-quarter inch shortening is denied. (CONTINUED ON NEXT PAGE) REMAND The Veteran seeks entitlement to service connection for a low back disorder. The Board notes that during a VA examination in November 2008, the Veteran was diagnosed with a bone spur from T2. The examiner stated that it would be difficult to relate his complaints of low back pain to his service-connected left femur fracture. Importantly, the Veteran has been granted service connection for right knee. See December 2009 rating decision. When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Therefore, an addendum opinion should be obtained regarding whether the Veteran's right knee caused or aggravates his low back disorder. Pertinent to a potential TDIU claim, as noted in the Introduction, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice, 22 Vet. App. at 453-54. While the Board has jurisdiction over this issue as part and parcel of the Veteran's increased rating claims, further development is necessary for a fair adjudication of the TDIU aspect of such claim. Evidence on file indicates that the Veteran has difficulty maintaining employment due to his service-connected disabilities, residuals of a left femur fracture. See April 2012 statement. Upon remand, the AOJ is requested to afford the Veteran proper notice under the VCAA as related to a TDIU claim and should clarify whether he wishes to pursue this claim. In addition, the AOJ may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or medical opinion, as is deemed necessary to develop the TDIU claim. After all appropriate development has been completed, the Veteran's TDIU claim should be adjudicated based on all evidence of record to include consideration of the provisions of 38 C.F.R. § 4.16(a) and (b), as applicable. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with notice in compliance with the VCAA that informs him of what evidence he must show to support a claim for TDIU. The RO should also ascertain whether the Veteran wishes to pursue a TDIU claim. In the event that he does, further action as described herein should be taken. In the event that he does not, this fact should be annotated for the file and no further action is required. 2. Obtain and associate with the claims file all updated treatment records. 3. Obtain an addendum opinion to the November 2008 VA examination. If deemed necessary by the examiner, afford the Veteran a VA examination for his low back. The examiner should specifically offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent): a) that the Veteran's low back disorder is causally or etiologically related to service; and, b) that the Veteran's low back disorder is proximately due to or aggravated (an increase in severity beyond natural progression) by his fracture of the left femur with three-quarter inch shortening; and, c) that the Veteran's low back disorder is proximately due to or aggravated (an increase in severity beyond natural progression) by his patellofemoral syndrome of the right knee. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. In particular, review the lay statements as they relate to the development of his low back disorder and provide information as to how the statements comport with generally accepted medical norms. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 4. If the Veteran has indicated that he wishes to pursue a claim for TDIU, schedule him for a VA examination to evaluate the impact his service-connected disabilities have on his employability. The examiner must review the claims file and should note that review in the report. The examiner must take a history of the Veteran's educational and employment background. The examiner should opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability), less likely as not (i.e. less than 50 percent), or more likely than not (i.e. greater than 50 percent) that the Veteran's service-connected disabilities (coronary artery disease, residuals of left femur fracture with three-quarter inch shortening, diabetes mellitus, type 2, bilateral hearing loss, bilateral tinnitus, patellofemoral syndrome of the right knee, posttraumatic stress disorder, scar of the right thigh and erectile dysfunction), either singularly or jointly and without consideration of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. The examiner should consider such factors as the Veteran's education level, special training, and work experience. In offering any opinion, the examiner should consider all the evidence of record, to include the lay statements submitted by or behalf of the Veteran. The rationale for any opinion offered should be provided. 5. The Veteran is hereby notified that it is his responsibility to report for the examinations scheduled in connection with this REMAND and to cooperate in the development of his case. 6. After all of the above actions have been completed, readjudicate the claims. If the claims remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs