Citation Nr: 1432997 Decision Date: 07/23/14 Archive Date: 07/29/14 DOCKET NO. 10-05 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for residuals of a left femur fracture with three-quarter inch shortening, currently evaluated as 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to September 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case was previously before the Board in September 2013, at which time the Board denied a rating in excess of 20 percent for the left femur fracture with three-quarters of an inch shortening. The Board also denied service connection for a left hip disability, to include as secondary to left femur fracture with three-quarters of an inch shortening and/or patellofemoral syndrome of the right knee. The Board also denied service connection for a left knee disability, to include as secondary to the left femur fracture with three-quarters of an inch shortening, bilateral hip disorder, and/or patellofemoral syndrome of the right knee. The Board also remanded the issues of entitlement to a low back disorder and entitlement to a TDIU. The appellant subsequently filed an appeal with the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the appellant's attorney filed a Joint Motion for Partial Remand in January 2014, requesting that the Court vacate the portion of the Board's September 2013 decision that denied a rating in excess of 20 percent for the residuals of the Veteran's left femur fracture. The Joint Motion also noted the denials of service connection for left hip and left knee disabilities, stating that the Veteran "has elected not to pursue an appeal of this portion of the BVA's decision, and, therefore, the parties respectfully request that these findings remain undisturbed." In a January 2014 Order, the Court granted the Joint Motion, vacating the Board's September 2013 decision as it pertained to the rating assigned for the Veteran's left femur fracture and remanding the claim to the Board for compliance with directives that were specified by the Joint Motion. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Separate ratings for left hip impairment and left knee impairment associated with the Veteran's left femur fracture with three-quarter inch shortening are not warranted. 2. 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. CONCLUSION OF LAW 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. 2013); 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Codes 5250 - 5255, 5256-5263, 5275 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2013)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes June 2008 and November 2013 evidentiary development letters in which the RO advised the appellant of the evidence needed to substantiate his claim of entitlement to an increased rating for a left femur disability. The appellant was advised in these letters of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. These letters also advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claim, pursuant to the Court's holding in Dingess, supra. The Board notes that the November 2013 letter was not issued prior to the initial adjudication of the Veteran's claim in December 2008. This claim, however, was subsequently readjudicated, most recently in an April 2014 supplemental statement of the case. Thus, any deficiencies in the timeliness of this notice letter would not be prejudicial. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issue on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's available VA and private medical records. The RO arranged for the Veteran to undergo VA examinations in November 2008 and February 2012. The Board finds that the resulting reports are adequate for the purpose of determining entitlement to an increased rating. The examiners reviewed the record and elicited from the Veteran his history of complaints and symptoms. The examination reports provide pertinent clinical findings detailing the results of the examinations to allow for effective evaluation of the Veteran's disability. For these reasons, the Board concludes that the reports in this case provide an adequate basis for a decision. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2013). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. In its September 2013 decision, the Board found that a rating in excess of 20 percent was not warranted for the Veteran's residuals of a left femur fracture with three-quarter inch shortening. This disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5255 (2013), which applies to impairment of the femur. The 20 percent rating was initially assigned in a February 1969 rating decision, effective September 27, 1968. Diagnostic Code 5255 grants a 20 percent rating for malunion of the femur with moderate knee or hip disability. In relevant part, a 10 percent rating is available for malunion of the femur with slight knee or hip disability, while a 30 percent rating is available for malunion of the femur with marked knee or hip disability. Words such as "marked," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2013). Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2013). The Court has held that 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 (2013) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45 (2013). Another intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability under 38 C.F.R. § 4.59. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The January 2014 Joint Motion for Partial Remand notes that "Diagnostic code 5255 provides for either a 10, 20, or 30-percent rating if there is slight, moderate, or marked, respectively, knee or hip disability." It cites pertinent caselaw to support the proposition that "the criteria for the 10, 20, and 30-percent ratings under diagnostic code 5255 operate in the disjunctive rather than the conjunctive, i.e., the use of the word 'or' provides for an independent basis rather than an additional requirement." The Joint Motion states that, "[i]n its analysis, the Board recognized that Appellant's complaints regarding his left femur fracture residuals in that both his left hip and left knee were affected." It then notes that "[t]he Board then considered Appellant's reports of his symptomatology, including pain, and concluded that the evidence did not support a rating in excess of 20 percent under diagnostic code 5255." It further notes the following: Despite evidence of impairment of Appellant's left knee and left hip as a result of the left femur fracture, and diagnostic code 5255 providing compensable ratings for knee or hip disability, the parties agree that the Board failed to provide an adequate statement of reasons or bases for its decision. Specifically, the Board erred when it failed to address whether Appellant is entitled to separate ratings-one for the left knee impairment and one for the left hip impairment-under diagnostic code 5255. Colayong v. West, 12 Vet. App. 524, 531 (1999) (citing Esteban v. Brown, 6 Vet. App. 259, 261 (1994)) ("All disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 [(2013)], except as otherwise provided in the rating schedule.") The parties therefore agree that remand is required for the Board to address this matter. The Joint Motion has asked the Board to consider whether the Veteran should have received separate ratings for left knee impairment and left hip impairment under Diagnostic Code 5255. The Board notes, however, that the pertinent rating criteria of Diagnostic Code 5255 do not provide ratings based on knee or hip impairment. Rather, they provide ratings based on knee or hip disability. The term "disability" means a disease, injury, or other physical or mental defect. 38 U.S.C.A. § 1701 (West 2002). The September 2013 Board decision specifically found that the Veteran does not have a left knee or left hip disability. The Veteran has not disputed that portion of the September 2013 Board decision. As noted in the Joint Motion, the Veteran "has elected not to pursue an appeal of this portion of the BVA's decision, and, therefore, the parties respectfully request that these findings remain undisturbed." The February 1969 rating decision's original assignment of a disability rating under Diagnostic Code 5255 is based on the type of femur fracture the Veteran originally suffered in service, which is described in his service treatment records as an open fracture of the left femur that occurred when the Veteran was hit by a jeep. It is also based on the overall level of impairment that was determined to have been caused by this disability, specifically referencing "nontender thigh scars that caused no functional impairment," "hyperextension of the left knee, and left knee squatting limited to 100 degrees of flexion," left knee and leg swelling, and a leg length discrepancy of three-quarters of an inch. While the evidence reflects that the Veteran does have left hip and left knee pain, those symptoms are contemplated by the 20 percent rating that was assigned under Diagnostic Code 5255. That is, the 20 percent rating that was awarded contemplates any functional impairment that was found to have resulted from the left femur disability, including any impairment that extended to the left knee and/or the left hip. Because no separate left knee or left hip disability was diagnosed, there was no need to even consider whether it would be appropriate to assign separate ratings for left knee and left hip disabilities under Diagnostic Code 5255. The Board notes that pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001). Because service connected cannot be granted for pain without an underlying disability, it cannot assign separate disability ratings for pain without an underlying disability in cases such as this when the rating criteria themselves require that the Veteran have "knee or hip disability." Even if the Court were to disagree with the Board's distinction between "knee or hip disability" and "knee or hip impairment," the Board finds that separate ratings would not be warranted under Diagnostic Code 5255, as the assignment of separate ratings would violate the prohibition against pyramiding. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2013). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The Board acknowledges the January 2014 Joint Motion's assertion that "Diagnostic code 5255 provides for either a 10, 20, or 30-percent rating if there is slight, moderate, or marked, respectively, knee or hip disability." The Board notes, however, that this characterization is incomplete. The Joint Motion has neglected to mention that Diagnostic Code 5255 compensates "Femur, impairment of." The current 20 percent rating is assigned for "Malunion of [the femur] ... With moderate knee or hip disability." [emphasis added] Just as the Joint Motion notes that the disjunctive nature of the word "or" in the phrase "With moderate knee or hip disability," the Board notes the conjunctive nature of the word "with," noting that this word links the phrase "Malunion of" (under the heading "Femur, impairment of") to the phrase "moderate knee or hip disability." The Board therefore concludes that Diagnostic Code 5255 requires malunion of the femur and either knee or hip disability. Malunion is defined as "union of the fragments of a fractured bone in a faulty position." See Dorland's Illustrated Medical Dictionary 152, 1115, 31st edition (2007). In the case at hand, the record does not reflect that there were multiple malunions of the Veteran's femur, each with its own distinct symptomatology. As noted above, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban, supra. In this case, the assignment of separate ratings under Diagnostic Code 5255 would violate this critical rule, as the Veteran would then be in receipt of two separate ratings for malunion of his left femur. To rate the femur twice in order to assign separate ratings for knee and hip disabilities would clearly violate the prohibition against pyramiding. In short, the Board finds that the assignment of separate ratings under Diagnostic Code 5255 for impairment of the left hip and the left knee associated with the Veteran's service-connected residuals of a femur fracture with leg length discrepancy is not warranted. The Board has also considered whether a separate rating would be warranted for either the left hip or left knee pain as a symptom of the service-connected residuals of a left femur fracture based on the assumption that the 20 percent rating under Diagnostic Code 5255 only covers left hip or left knee pain, but not both. The Board finds that no such rating is warranted, however, even setting aside the question of whether all of the left hip and knee symptomatology noted in the record is related to his service-connected left femur disability. Briefly, the below medical evidence demonstrates that the Veteran's left hip symptomatology does not satisfy any of the criteria for a compensable rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5254. He does not have ankylosis of the hip (Diagnostic Code 5250) or hip flail joint (Diagnostic Code 5254). Even considering functional impairment pursuant to DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59, the Veteran's thigh extension was not limited to 5 degrees to warrant a compensable rating under Diagnostic Code 5251 and his thigh flexion was not limited to 45 degrees to warrant a compensable rating under Diagnostic Code 5252. Nor would a compensable rating be warranted under Diagnostic Code 5253, as rotation was not limited such that he could not toe-out more than 15 degrees, adduction was not limited such that he could not cross his legs, or abduction was not limited such that motion was lost beyond 10 degrees. Furthermore, the below medical evidence demonstrates that the Veteran's left knee symptomatology does not satisfy any of the criteria for a compensable rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. The record does not demonstrate ankylosis of the knee (Diagnostic Code 5256), recurrent subluxation or lateral instability (Diagnostic Code 5257), dislocated semilunar cartilage (Diagnostic Code 5258), removal of semilunar cartilage (Diagnostic Code 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). Even considering functional impairment pursuant to DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59, the Veteran's knee flexion was not limited to 45 degrees to warrant a compensable rating under Diagnostic Code 5260, and his knee extension was not limited to 10 degrees to warrant a compensable rating under Diagnostic Code 5261. Having determined that separate ratings for impairment of the left hip and the left knee are not warranted under Diagnostic Code 5255 or any other diagnostic code, the Board will next turn to the issue of whether a rating in excess of 20 percent is warranted under Diagnostic Code 5255. As discussed above, Diagnostic Code 5255 provides a 10 percent rating for impairment of the femur consisting of malunion of the femur with slight knee or hip disability, a 20 percent rating for impairment of the femur consisting of malunion of the femur with moderate knee or hip disability, and a 30 percent rating for impairment of the femur consisting of malunion of the femur with marked knee or hip disability. Diagnostic Code 5255 also provides a 60 percent rating for fracture of the surgical neck of the femur with false joint, or for impairment of the femur with nonunion, without loose motion, and when weight bearing is preserved with aid of a brace. Id. Diagnostic Code 5255 also provides an 80 percent rating for fracture of the shaft or anatomical neck of the femur with nonunion and loose motion (spiral or oblique fracture). Id. Additionally, 38 C.F.R. § 4.71a, Diagnostic Code 5275, provides a 10 percent rating for shortening of the lower extremity between 1 1/4 and 2 inches. Turning to the relevant evidence of record, the November 2008 VA examination report notes left hip flexion to 90 degrees, external rotation zero to 30 degrees, and internal rotation to 25 degrees. The left knee was tender to palpation with flexion to 106 degrees. The Veteran complained of hip and knee pain at the end of flexion. Patellar reflex was absent on the left, but Achilles reflex was normal. He rose on his toes, rocked back on his heels, and balanced on either leg, but he could only squat three-quarters of the way down due to left knee and hip pain. He walked with an antalgic gait, favoring the left leg. Leg measurements were 37 1/4 inches on the left and 38 inches on the right. The impression was left femur fracture, 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. According to the physician, the radiologist believed there was additional bone in this region causing the increased uptake, but the physician believed it might be chronic osteomyelitis. The February 2012 VA examination report notes the Veteran's reports of daily pain in the left thigh region as well as pain in the left hip. Left hip flexion was to 90 degrees and extension was to 0 degrees, with no objective evidence of painful motion on flexion or extension. 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. 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 contends 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 Diagnostic Code 5255 or, as discussed above, on the basis of 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. Additionally, the Board finds that the Veteran's three-quarters of an inch left leg shortening does not satisfy the criteria for a compensable rating under Diagnostic Code 5275. 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 a preponderance of the evidence is against granting an evaluation in excess of 20 percent, to include through the assignment of separate compensable ratings under Diagnostic Code 5255 or under any other diagnostic code. In reaching this conclusion, the Board also has considered whether the Veteran is entitled to an increased level of compensation for the disability at issue on an extraschedular basis. Ordinarily, the VA Schedule 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) (2013); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 service-connected left femur disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Board finds that the rating criteria for the Veteran's service-connected residuals of a left femur fracture with three-quarters of an inch shortening adequately contemplate the level of impairment that is demonstrated in the evidence of record. As noted above, musculoskeletal disability ratings contemplate factors such as functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint, as well as actually painful, unstable, or malaligned joints due to healed injury. The left femur disability in the case at hand is not characterized by any additional complaints or symptoms that are not contemplated by these applicable rating criteria. The Veteran has not described any exceptional or unusual features associated with the service-connected disability being rated herein. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an increased evaluation for residuals of a left femur fracture with three-quarter inch shortening, currently evaluated as 20 percent disabling, is denied. REMAND The Veteran has also claimed entitlement to a TDIU. In April 2014, he submitted additional evidence with respect to this claim. On the accompanying form, the Veteran checked the box indicating that "I am submitting the enclosed argument and/or evidence. Please remand (send back) my case to the [Agency of Original Jurisdiction] for review of this newly submitted evidence." The newly-submitted evidence includes a written statement from the Veteran describing recent health problems, including a January 2014 heart surgery. He also included a signed VA Form 21-4142, "Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)," signed in April 2014, authorizing VA to obtain the Veteran's Medical records from The Ohio State University, Wexner Medical Center. On remand, VA should take appropriate steps to attempt to obtain these records. While this case is on remand, the Veteran should be given the opportunity to identify any relevant medical records, and all appropriate steps to obtain such records should be completed. In addition, VA should obtain any outstanding VA medical records and associate these records with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any outstanding VA medical records and associate these copies with the claims folder. 2. Take appropriate steps to obtain the records from Wexner Medical Center at The Ohio State University. 3. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of any additional health care providers (other than Wexner Medical Center at The Ohio State University) from whom he has received pertinent treatment. After securing any necessary releases, request any records identified which are not duplicates of those contained in the claims file. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. 4. After the development requested above has been completed, again review the record, to include any evidence that has been added to the record since the most recent supplemental statement of the case. If entitlement to TDIU remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity 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 appellant need take no action unless otherwise notified. 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs