Citation Nr: 1418021 Decision Date: 04/22/14 Archive Date: 05/02/14 DOCKET NO. 10-02 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to increased disability ratings for the service-connected left hip disabilities (degenerative joint disease (DJD) of the left hip, residuals of stress fracture rated 10 percent and impairment of the thigh, rated 20 percent, effective September 20, 2012). 2. Entitlement to increased disability ratings for the service-connected right hip disabilities (degenerative joint disease (DJD) of the right hip, residuals of stress fracture rated 10 percent and impairment of the thigh, rated 20 percent, effective September 20, 2012). 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from October 1961 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which continued 10 percent ratings for DJD of the hips, bilaterally. The Board remanded the claims on appeal in August 2012 and June 2013 for further evidentiary development. In January 2013, the RO assigned separate 20 percent ratings for impairment of the right and left hip under Diagnostic Code 5253, effective, September 209, 2012. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1) submits evidence of medical disability, (2) makes a claim for the highest possible rating for the disability, and (3) submits evidence of unemployability due to the disability, an informal claim is raised under 38 C.F.R. § 3.155(a) for a TDIU. And as the U. S. Court of Appeals for Veterans Claims (Court/CAVC) more recently explained in Rice v. Shinseki, 22 Vet. App. 447 (2009), if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. In the present case, the Veteran himself has not alleged unemployability due to his service-connected disabilities of the lower extremities. Nonetheless, evidence of record (September 2012 VA examination report) does suggest that these disabilities are of such severity as to prohibit all physical employment. As there is evidence of possible unemployability, the Board finds that a claim for TDIU benefits has been raised. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Veteran's case shall take into consideration the existence of the electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to TDIU benefits is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's left hip disability has been manifested by painful motion due to arthritis. 2. The Veteran's left hip disability has not been manifested by flexion of the hip to 45 degrees or less. 3. The Veteran's left hip disability has maintained full extension to 0 degrees. 4. Prior to September 20, 2012, there is no evidence of limitation of abduction of the left thigh beyond 10 degrees. 5. The Veteran's right hip disability has been manifested by painful motion due to arthritis. 6. The Veteran's right hip disability has not been manifested by flexion of the hip to 45 degrees or less. 7. The Veteran's right hip disability has maintained full extension to 0 degrees. 8. Prior to September 20, 2012, there is no evidence of limitation of abduction of the right thigh beyond 10 degrees. CONCLUSIONS OF LAW 1. The criteria for higher ratings for the service-connected left hip disabilities (degenerative joint disease (DJD) of the left hip, residuals of stress fracture rated 10 percent and impairment of the thigh, rated 20 percent, effective September 20, 2012) have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5251-53 (2013). 2. The criteria for higher ratings for the service-connected right hip disabilities (degenerative joint disease (DJD) of the right hip, residuals of stress fracture rated 10 percent and impairment of the thigh, rated 20 percent, effective September 20, 2012) have not been met.38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5251-53 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In the present case, letters provided to the Veteran in April 2007 and April 2009 informed the Veteran of the type of evidence needed to substantiate his claim, including a need to demonstrate that his disability had worsened and a need to show the effect on his employment. He was also notified as to how VA determines the appropriate disability rating and effective date. While the Veteran was not informed of a need to show an effect on his employment until after the initial adjudication of his claims, the claims were subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received a VA medical examination in March 2008 and September 2012, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records have also been associated with the record. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Additionally, the Board finds there has been substantial compliance with its prior remands. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). Following the August 2012 VA examination, the Veteran was scheduled for a VA examination that was performed in September 2012. While private treatment records were not obtained following the August 2012 remand, the record indicates that the AMC contacted the Veteran and asked him to complete authorization forms for his identified private treatment provider following the June 2013 Board remand. As of the date of this decision, VA has received no further response or evidence from the Veteran. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence - the duty to assist is not a one way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2013). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Relevant Facts The Veteran was originally granted service connection for a bilateral hip disability in a July 2005 rating decision, effective as of October 12, 2004. A 10 percent evaluation was assigned for the right hip under Diagnostic Code 5252, while a 10 percent evaluation was assigned for the left hip under Diagnostic Code 5010-5252. In June 2007, VA received a claim from the Veteran seeking a higher evaluation. This claim was denied in a May 2008 rating decision, and the Veteran appealed the 10 percent evaluations in a May 2008 notice of disagreement. The 10 percent evaluations were continued in a January 2010 statement of the case. The Veteran appealed the assigned evaluations to the Board in January 2010. A January 2007 VA treatment note indicates that the Veteran had a history of trauma to the hips while in service. The Veteran reported occasional localized pain in the hips that was burning like, worsened by weather and activity. An April 2007 record reflects right hip pain for the past 2 years that had increased in intensity over the previous 2 weeks. According to a May 2007 treatment note from a private physician with the initials T.S., the Veteran was experiencing joint pain in the pelvic region and thigh. A May 2007 private evaluation note from the Brookville Hospital reflects that imaging of the hips revealed mild superior joint space narrowing and mild subchondral sclerosis. There was no fracture or plain film evidence of osteonecrosis. A diagnosis of mild bilateral hip osteoarthritis was assigned. A 2 week follow-up note signed by T.S. indicates that the Veteran was unable to walk without pain and that it was affecting his sleep. The Veteran was diagnosed with sciatica and idiopathic peripheral neuropathy. A May 2007 neurological note reflects a number of symptoms associated with the lower extremities. However, these symptoms were associated with peripheral polyneuropathy and questionable radiculopathy, and not to the disabilities currently on appeal. The Veteran was afforded a VA examination of the hips in March 2008. It was noted that the Veteran had developed bilateral hip stress fractures while in the military. The Veteran reported that he had been using a cane for the past 8 months to prevent falls. He endorsed pain, weakness and stiffness, with symptomatology on the right worse than the left. He reported some instability and giving way sensation, but he denied locking, heat or redness. He also reported fatigability and lack of endurance. The Veteran endorsed flare-ups associated with the weather, and described right leg pain as a 5 out of 10 (reaching a 20 at times) and left leg pain as a 4 to a 9 out of 10. This resulted in impairment with walking and standing, and the Veteran reported he could only walk one block at a time and stand for "a little bit at a time." Physical examination revealed an intact gait with a limp favoring the right lower extremity. According to a physical therapy consultation, right lower extremity flexion was to 90 degrees, extension was to 0 degrees, adduction was to 0 degrees, abduction was to 15 degrees, internal rotation was to 20 degrees and external rotation was to 25 degrees. Left hip flexion was to 90 degrees, extension was to 0 degrees, adduction was to 0 degrees, abduction was to 25 degrees, internal rotation was to 25 degrees and external rotation was to 35 degrees. The Veteran reported increased pain with active motion and he was unable to perform repetitive motion secondary to pain symptoms. X-rays revealed no evidence of fracture, dislocation or any other bone or joint abnormality in either lower extremity. The examiner diagnosed the Veteran with degenerative joint disease, by complaints. The examiner noted that he agreed with the radiologist that the studies were normal and that the findings were what one would expect in a 69 year old male. Digital radiographic images appeared to reflect mild sclerosis of the acetabulum with some joint space narrowing, right worse than left. This was felt to correlate to the Veteran's symptomatology. The record also contains a private treatment note dated August 2012. The Veteran reported worsening pain. Imaging revealed mild bilateral hip osteoarthritis and worsening lower lumbar spine degenerative disc disease. The Veteran was most recently afforded a VA examination of the hips in September 2012. The examiner noted that the Veteran suffered from bilateral degenerative joint disease of the hips with bilateral femoral neck stress fractures having been diagnosed in 1962. The Veteran reported a worsening in his hip pain since his previous examination. X-rays from the previous month were reviewed, revealing mild bilateral hip osteoarthritis. The Veteran reported flare-ups of his hip pain. He described his pain daily as an 8 or a 9, but reported that some days it would feel like a 20 and wake him up at night. The Veteran was seen for a physical therapy consultation in association with this examination. This revealed extension negative 14 degrees beyond neutral after three repetitions. The examiner summarized the range of motion findings in the examination report. The physical therapy consultation revealed right hip flexion limited to 55 degrees (with pain beginning at 55 degrees), extension limited to 0 degrees (with pain at 0 degrees), abduction lost beyond 10 degrees, adduction limited such that the Veteran could not cross the legs. Rotation was not limited such that the Veteran could not toe-out more than 15 degrees, however. As for the left hip, flexion was limited to 80 degrees (with pain at 80 degrees), extension was to 0 degrees (with pain at 0 degrees), abduction was lost beyond 10 degrees and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. Adduction, however, was limited such that the Veteran could not cross his legs. After three repetitions of motion, right hip flexion was to 75 degrees and extension remained to 0 degrees. Left him flexion was reduced to 75 degrees and extension remained at 0 degrees. There was functional loss associated with the hips due to less movement than normal for the left, more movement than normal for the right, and weakened movement, excess fatigability and pain on movement, bilaterally. There was no ankylosis associated with either hip, and the Veteran did not have malunion or nonunion of the femur, flail hip joint or leg length discrepancy in either lower extremity. There was no history of surgery. The examiner concluded that this disability impacted the Veteran's ability to work in that ambulatory difficulty and pain prohibited any physical employment. Analysis The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability evaluation in excess of 10 percent for his service-connected DJD of the left hip, residuals of stress fracture, or his DJD of the right hip, residuals of stress fracture, at any time during the pendency of this claim. The Veteran's left hip disability is rated under Diagnostic Code 5010-5252, while the Veteran's right hip disability is rated juts under Diagnostic Code 5252. Diagnostic Code 5252 is used to rate limitation of flexion of the thigh. 38 C.F.R. § 4.71a. Under this code, a 10 percent evaluation is warranted for flexion limited to 45 degrees; a 20 percent evaluation is warranted for flexion limited to 30 degrees; a 30 percent evaluation is warranted for flexion limited to 20 degrees; and a 40 percent evaluation is warranted for flexion limited to 10 degrees. Id. According to the March 2008 VA examination report, the Veteran was capable of bilateral hip flexion to 90 degrees. Upon examination in September 2012, the Veteran was capable of left hip flexion to 80 degrees with objective evidence of pain at 80 degrees and right hip flexion with objective evidence of pain at 55 degrees. The record contains no other evidence of range of motion testing. As such, the Veteran did not have sufficient limitation of flexion at any time during the pendency of this claim to warrant a compensable evaluation under Diagnostic Code 5252. However, Diagnostic Code 5010 is still applicable to traumatic arthritis. This code instructs the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. §4.71a. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The record demonstrates objective evidence of painful motion, bilaterally, supporting the currently assigned 10 percent evaluations. A higher evaluation cannot be provided unless the Veteran meets the higher criteria for one of the diagnostic codes pertaining to limitation of motion of the hip or thigh. As already discussed, the Veteran does not have a compensable degree of limitation of flexion. A 10 percent rating can be established for extension limited to 5 degrees, but a review of the record reflects that the Veteran has maintained full extension of both hips to 0 degrees throughout the pendency of this claim. In fact, the Veteran's right hip extended past 0 degrees in September 2012. As such, there is no basis for a higher or separate evaluation based on limitation of extension. See 38 C.F.R. § 4.71a, Diagnostic Code 5251. The rating criteria also allow for a disability evaluation of 20 percent when there is evidence of abduction of the thigh with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. A separate 20 percent evaluation has already been assigned for both hips as of September 20, 2012, under Diagnostic Code 5253. This is the highest evaluation available under this code. Nonetheless, the Board must determine whether a separate evaluation is warranted at any time prior to September 20, 2012. However, a review of the record reflects that the Veteran was capable of left hip abduction to 25 degrees upon examination in March 2008, with right hip abduction to 15 degrees. As such, there is no evidence of abduction limited beyond 10 degrees at any time during the pendency of this claim. As such, a separate evaluation under Diagnostic Code 5253, prior to September 20, 2012, is not warranted. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of their normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. According to the March 2008 VA examination report, the Veteran reported increased pain with active motion and he was unable to perform repetitive motion secondary to this pain. The Veteran reported that the weather caused flare-ups and that he would be limited in his ability to stand and walk. In September 2012 a VA examiner measured the Veteran's range of motion after repetition, and found that he was capable of flexion to 75 degrees and extension to 0 degrees. A review of the record fails to show that the Veteran's service-connected hip disabilities have resulted in a degree of functional loss so severe as to warrant a higher schedular rating. There is no evidence that due to pain, weakness, fatigue, etc., that hip flexion is limited to 30 degrees, that limitation is to 5 degrees; or that he has limitation of abduction, adduction or rotation which would warrant compensable ratings. Finally, the Board has considered whether there are any other applicable diagnostic codes that may permit a higher or separate evaluation in this case. However, the Veteran does not suffer from ankylosis, as he has maintained some degree of motion in both hips. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 31st ed., 2007). As such, a higher evaluation is not warranted based on Diagnostic Code 5250. Also, according to the September 2012 VA examiner, the Veteran did not suffer from flail joint of the hip or fracture or malunion of the femur. As such, Diagnostic Codes 5254 and 5255 are not applicable. There are no other relevant diagnostic codes that would permit a higher or separate evaluation in this case. See 38 C.F.R. § 4.71a. The Board recognizes that the Veteran believes he is entitled to a higher evaluation for his bilateral hip disabilities. However, he has not provided VA with any evidence to suggest that he has met the diagnostic criteria for a higher evaluation at any time during the pendency of his claim. While he has described pain and functional impairment, the assigned ratings are intended to compensate for these symptoms. Since the preponderance of the evidence is against the claims, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claims of entitlement to an increased disability rating for the service-connected left hip disabilities (degenerative joint disease (DJD) of the left hip, residuals of stress fracture rated 10 percent and impairment of the thigh, rated 20 percent, effective September 20, 2012) must be denied. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is aware of the Veteran's complaints as to the effects of his service-connected bilateral hip disabilities on his activities of daily living. Such impairments, however, are adequately encompassed in the assigned schedular ratings. In this respect, the Veteran complains of pain, limited motion, fatigability and impaired mobility. His assigned ratings contemplate this impairment of function. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. In short, the Board finds that the assigned schedular evaluation is adequate. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). ORDER The claims for higher ratings for the service-connected left hip disabilities (degenerative joint disease (DJD) of the left hip, residuals of stress fracture rated 10 percent and impairment of the thigh, rated 20 percent, effective September 20, 2012) are denied. The claims for higher ratings for the service-connected right hip disabilities (degenerative joint disease (DJD) of the right hip, residuals of stress fracture rated 10 percent and impairment of the thigh, rated 20 percent, effective September 20, 2012) are denied. REMAND Pertinent to the Veteran's 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. According to the September 2012 VA examiner, due to ambulatory difficulty and pain, the Veteran's hip condition would prohibit physical employment. Accordingly, the Board finds that the issue of entitlement to a TDIU has been raised by the evidence of record in this case. While the Board has jurisdiction over this issue as part and parcel of the Veteran's increased rating claim for bilateral hip disabilities, further development is necessary for a fair adjudication of the TDIU aspect of this claim. Upon remand, the AOJ is requested to afford the Veteran proper notice under the VCAA as related to his 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 appellant's TDIU claim should be adjudicated based on all of the evidence of record, to include consideration of the provisions of both 38 C.F.R. §§ 4.16(a) and (b), as applicable. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 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. 2. The AOJ shall provide the Veteran with the opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to the TDIU claim, that have not yet been associated with the claims file. Appropriate steps should be taken to obtain any such identified records. If any identified records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, and include a copy of such in the claims file. The Veteran must be notified of the attempts made to obtain outstanding records, informed as to why further attempts would be futile, and allowed the opportunity to obtain or provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The RO should ascertain whether the Veteran is in receipt of disability benefits from the Social Security Administration (SSA), and in the event that he is, the SSA decision and records upon which it was based should be obtained. 4. The AOJ shall consider the issue of whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. §§ 4.16(a) and 4.16(b) on the basis of the Veteran's service-connected disabilities of the lower extremities. In so doing, 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. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration. The appellant 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. 2013). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs