Citation Nr: 1300426 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-46 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a left shoulder disability, to include on a secondary basis. 2. Entitlement to a compensable rating for headaches. 3. Entitlement to a rating in excess of 30 percent from May 31, 2006, through May 10, 2007, and a rating in excess of 40 from May 11, 2007, for residuals of right rotator cuff tear. 4. Entitlement to a rating in excess of 30 percent for hallux rigidus with severe osteoarthritis of the right first metatarsal phalangeal joint. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who served on active duty from May 1961 to May 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2007, September 2008 and February 2010 rating decisions by the Indianapolis, Indiana Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2011, the Veteran testified at a personal hearing before a decision review officer (DRO) at the RO. A copy of the transcript of that hearing is of record. In August 2011, the Veteran's private attorney revoked the power of attorney of record in this matter. The Veteran was notified of this by letter in August 2011 and was reminded of this again at his December 2011 DRO hearing. He has appointed no new representative, electing instead to continue with his appeal pro se before the Board. By rating decision in May 2012, the RO granted the Veteran's claim for a total rating based upon individual unemployability (TDIU), effective June 1, 2007. This grant of TDIU is effective for the entire appellate period and further consideration is therefore not required. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (The United States Court of Appeals for the Federal Circuit has held that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by a notice of disagreement on such issue.) In an August 2011 VA Form 9, the Veteran requested a travel Board hearing. In a statement received the same day as the VA Form 9, he requested a hearing before a hearing officer at the RO. In correspondence from the Board issued in September 2012, the Veteran was asked to clarify whether he wished to appear at a hearing before the Board. The Veteran was further informed that if he did not respond within 30 days from the date of the letter, the Board would assume that he no longer wished to attend a Board hearing. No response was received from or on behalf of the Veteran within the noted time limit. Based on the Veteran's failure to timely respond to the Board's September 2012 request for clarification as to whether he currently desires a personal hearing before the Board, the Board will adjudicate the issues on appeal based on the evidence of record. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of entitlement to service connection for a left shoulder disability and entitlement to a compensable rating for headaches 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. Throughout the period of the appeal, the Veteran's service-connected hallux rigidus with severe osteoarthritis of the right first metatarsal phalangeal joint has more nearly approximated a severe foot injury manifested by such symptoms as hallux rigidus, arthritis and pain; actual loss of use of the right foot has not been shown, and factors warranting referral for extra-schedular consideration have not been not shown. 2. For the period from May 31, 2006, through May 10, 2007 the Veteran's service-connected residuals of right rotator cuff tear have been manifested by no more than limitation of motion midway between side and shoulder level. Ankylosis, limitation of motion of the arm to 25 degrees from the side, nonunion, fibrous union, or dislocation are not shown. 3. For the period from May 11, 2007 the Veteran's service-connected residuals of right rotator cuff tear have been manifested by no more than limitation of motion of the arm to 25 degrees from the side. Ankylosis, nonunion, fibrous union, or dislocation are not shown. CONCLUSIONS OF LAW 1. A rating in excess of 30 percent for the Veteran's service-connected hallux rigidus with severe osteoarthritis of the right first metatarsal phalangeal joint is not warranted. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 4.1 , 4.7, 4.63, 4.71a, Diagnostic Code 5283 (2012) 2. The criteria for a rating in excess of 30 percent from May 31, 2006, through May 10, 2007, and a rating in excess of 40 from May 11, 2007, for residuals of right rotator cuff tear are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5200, 5201, 5202 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice by correspondence dated in June 2007, prior to the initial adjudication of the claims. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records, including service treatment records (STRs) and post-service treatment records, has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claims, including any records of post-service treatment. The Board is also unaware of any such records. Moreover, the Veteran has been afforded appropriate VA examinations and provided testimony at a 2011 hearing. Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claims. II. Legal Criteria - Increased Ratings 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. 38 U.S.C.A. § 1155. Separate codes contain the criteria for rating the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Right First Metatarsal Phalangeal Joint Loss of use of a foot (for the purpose of special monthly compensation) is shown when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee. 38 C.F.R. § 4.63. Arthritis due to trauma and substantiated by X-ray findings is rated as degenerative arthritis. 38 C.F.R. § 4.71a , Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, 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. Diagnostic Code 5276 provides ratings for pes planus (flatfoot). Mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensably (0 percent) disabling. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the foot, unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Diagnostic Code 5277 provides ratings for bilateral weak foot. For symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness, the underlying condition is to be rated, with a minimum rating of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5277. Under Diagnostic Code 5278, acquired claw foot (pes cavus) with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to a right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads warrants a 20 percent evaluation if unilateral. Claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity warrants a 30 percent evaluation if unilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5278. Diagnostic Code 5279 provides a 10 percent disability rating for anterior metatarsalgia (Morton's disease), whether unilateral or bilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5279. Diagnostic Code 5280 provides ratings for unilateral hallux valgus. Unilateral hallux valgus that is severe, if equivalent to amputation of great toe, is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is also rated 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5280. Diagnostic Code 5281 provides that unilateral severe hallux rigidus is to be rated as severe hallux valgus. A Note to Diagnostic Code 5281 provides that the rating for hallux rigidus is not to be combined with claw foot ratings. 38 C.F.R. § 4.71a, Diagnostic Code 5281. Diagnostic Code 5282 provides ratings based on hammer toes. Hammer toe of a single toe is rated noncompensably (0 percent) disabling. Unilateral hammer toe of all toes, without claw foot, is rated 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5282. Diagnostic Code 5283 provides ratings based on malunion or nonunion of tarsal or metatarsal bones. Moderate malunion or nonunion of tarsal or metatarsal bones is rated 10 percent disabling; moderately severe malunion or nonunion of tarsal or metatarsal bones is rated 20 percent disabling; and severe malunion or nonunion of tarsal or metatarsal bones is rated 30 percent disabling. A Note to Diagnostic Code 5283 provides that malunion or non-union of tarsal or metatarsal bones with actual loss of use of the foot is rated 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5283. Diagnostic Code 5284 provides ratings for residuals of other foot injuries. Moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling. A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Under the "amputation rule" the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.68. Amputation of the great toe is rated under the criteria of Diagnostic Code 5171, under which a rating of 10 percent is awarded for amputation without metatarsal removal. A rating of 30 percent is awarded for amputation with removal of the metatarsal head. Loss of use of a foot (for the purpose of special monthly compensation) is shown when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee. 38 C.F.R. § 4.63. Historically, a March 1972 rating decision awarded service connection for nonspecific minimal degenerative arthritis of the right first metatarsalphalangeal joint (later recharacterized as hallux rigidus with severe osteoarthritis of the right first metatarsal phalangeal joint). Private treatment records note that the Veteran underwent surgery on his right foot in January 2007. The Veteran underwent: tarsal tunnel release with neurolysis medial and lateral plantar nerves, all right lower extremity; gastrocnemius recession; revision arthrodesis first metatarsalphalangeal joint; and calcaneal bone graft harvest. By rating decision in May 2007 the Veteran was awarded a 100 percent rating from January 30, 2007 to May 31, 2007, under 38 C.F.R. § 4.30 for hallux rigidus with severe osteoarthritis of the right first metatarsal phalangeal joint. Thereafter, a 30 percent rating was assigned effective June 1, 2007; the rating assigned effective June 1, 2007, is the subject of the current appeal. A May 2007 VA examination report notes the Veteran's complaints of an inability to walk properly. He reported feeling numbness in the bottoms of the feet and losing his balance. He also reported having multiple falls because of these symptoms. The Veteran denied any swelling or redness. He complained of fatigability and lack of endurance. He reported only being able to walk one block before having to sit and rest. Pain and other symptoms worsened throughout the day. He denied using any brace or cane, but did have corrective shoes. On examination the Veteran walked with a limping gait. Standing on both feet, the great toe tip was about 0.5 centimeters above the ground. Pedal pulses were present though febrile. There was no flat foot noted. There was no hallux valgus. The Veteran was barely able to dorsiflexion the great toe. Dorsiflexion movement caused severe pain and spasm in your muscles. There was no movement of the metatarsalphalangeal joint as it is fused. Distal interphalangeal joint movement caused severe pain shooting down through the feet and up to the ankle. Residual surgical scars were found to be well-healed. A July 2008 VA examination report notes the Veteran's complaints of right toe pain. On examination, the right toe was slightly tender to palpation. There was no range of motion. There were no neurological deficits related to the right toe disability. The Veteran testified during the December 2011 hearing that his right foot was in constant pain. He reported having to use a walker or cane to ambulate. He also reported wearing special inserts in his shoes. A January 2012 VA examination report notes the Veteran's complaints of pain on palpation and weight bearing. The examiner observed that the Veteran's right toe does not touch the ground when he walks, causing an increased risk for falls. Gait was antalgic, with constant use of a cane and regular use of a walker. The examiner stated that the Veteran's hallux rigidus was severe, with symptoms equivalent to amputation of the right great toe. The examiner also stated, however, that the Veteran's right toe was not impaired such that no effective function remained other than that which would be equally well-served by an amputation with a prosthesis. As noted above, the Veteran's right toe disability has been manifested by hallux rigidus, arthritis, and complaints of pain; therefore, in evaluating which diagnostic criteria in the Rating Schedule contemplate the symptoms of the Veteran's service-connected foot disabilities, multiple diagnostic codes are for consideration. The Veteran is currently assigned a 30 percent rating for his right toe disability under Diagnostic Code 5283, malunion or nonunion of tarsal or metatarsal bones, for the period of the appeal. Under this diagnostic code, a maximum 30 percent rating is warranted for severe malunion or nonunion of tarsal or metatarsal bones with a note that a 40 percent rating should be awarded when there is actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5283. Here, a rating in excess of 30 percent are not warranted because there is no competent evidence of actual loss of use of the right foot. As described above, the Veteran is still able to use his right foot to walk, albeit with significant pain and with the aid of a cane and sometimes a walker. However, given that he retains function in his right foot and continues to ambulate, it cannot be said that he would be equally well-served by an amputation stump with a prosthetic foot. This was the opinion provided by the January 2012 VA examiner; there is no medical opinion to the contrary. Thus, a 40 percent disability rating is not warranted for loss of use of the right foot. None of the diagnostic codes applicable to the feet (Diagnostic Codes 5276 to 5284) provide a rating in excess of 30 percent for one foot absent evidence of loss of use of the foot. Moreover, amputation of the great toe does not provide a rating in excess of 30 percent. See Diagnostic Code 5171. The Board has also considered whether the record raises the matter of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology of his right toe disability. Specifically, the rating schedule contemplates a significantly painful disability. This is the main symptom of the Veteran's right toe disability. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability at issue, but the medical evidence reflects that those manifestations are not present in this case. The competent evidence does not show that the disability cause marked interference with employment, requires frequent hospitalizations, or otherwise produce impairment unrecognized by the schedule. (In this regard, the Board also notes that the Veteran is in receipt of a TDIU rating.) Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Residuals of Right Rotator Cuff Tear Under Diagnostic Code 5201, limitation of motion of the major arm at shoulder level warrants a 20 percent evaluation. Limitation of motion of the major arm midway between the side and shoulder level warrants a 30 percent evaluation. Limitation of motion of the major arm to 25 degrees from the side warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5201. (Other diagnostic codes for rating shoulder disability (5200, 5202, and 5203) are not for consideration because, as will be discussed below, the pathology required by such codes-ankylosis of the scapulohumeral articulation; flail shoulder; false flail joint; fibrous union of the humerus; recurrent dislocation of the humerus at the scapulohumeral joint; malunion of the humerus; or impairment of the clavicle or scapula ankylosis-is not shown.) Normal ranges of shoulder motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. 38 C.F.R. § 4.71, Plate I. Rating from May 31, 2006, through May 10, 2007 Historically, private treatment records dated in 2003 note that the Veteran slipped on some ice and fell; diagnoses included a torn right rotator cuff. His private physician opined that this disability was caused by a fall, which was caused by the Veteran's service-connected right toe disability. A September 2005 rating decision (in pertinent part) awarded service connection for residuals of right (major) rotator cuff tear. A May 31, 2006 treatment record from Circle City Evaluation Center notes the Veteran's diagnoses of right deltoid strain, right rotator cuff tear and right shoulder impingement syndrome. On examination, the Veteran had catching and severe pain with right shoulder motion. Range of motion was: flexion to 90 degrees; and abduction to 45 degrees. Both external and internal rotation were "severely limited." Grip strength was good and there were no neurological deficits. For the period from May 31, 2006, through May 10, 2007, the Board finds that the Veteran is not entitled to a disability rating in excess of 30 percent for his service-connected right shoulder disability. The Board finds that the objective medical evidence does not show that the Veteran's right shoulder disability was manifested by symptomatology that more nearly approximates the criteria for the higher ratings under Diagnostic Codes 5200, 5201, or 5202 at any point during the appeal period. As an initial matter, there is no evidence to show ankylosis (i.e., a complete lack of motion in the joint), flail shoulder, nonunion, or recurrent dislocation of the right shoulder. Furthermore, the evidence throughout this portion of the appeal period demonstrates that while the Veteran has limitation due to pain, it is not so limited as to rise to the level contemplated by the higher, 40 percent rating. That requires that motion be limited to 25 degrees from the side. However, the evidence for this period shows that the Veteran had flexion to 90 degrees and abduction to 45 degrees. These levels of limitation still far exceed that required for the higher rating. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 30 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms during this period of the appeal. Although it was noted in the record that the Veteran exhibited pain on motion and some limitation of motion due to pain, these findings have already been taken into consideration in the assignment of the current 30 percent rating for the right shoulder. The Board has considered the Veteran's contentions, but finds that the evidence does not support his claim for an increased rating for the period from May 31, 2006, through May 10, 2007. Without more significant limitation of motion, an increased rating is not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5201. See Hart, supra. Rating From May 10, 2007 The Veteran submitted a claim (in pertinent part for an increased rating his service-connected right shoulder disability that was received on May 11, 2007. A September 2007 VA examination report notes the Veteran's complaints of severe pain, impingement syndrome and limitation of motion about the right shoulder. He reported experiencing constant pain with sitting and resting that increased with physical activity. He indicated that he did not use his right arm except when his right elbow was close to your body. In other words, he made no reaching out motions and performed no movements requiring abduction. He was unable to raise his arm above his head and was unable to lift more than five pounds. He was unable to do any pushing or pulling movements. Examination found no erythema, increased temperature, swelling, or effusion. He had some tenderness to palpation over the top of the right shoulder which radiated to the right elbow. Forward flexion was measured to 80 degrees, abduction to 30 degrees, internal rotation to 5 degrees, and external rotation to 20 degrees. Pain was noted with all arm movements. The Veteran was unable to perform repetitive arm movements due to severe pain. A July 2008 VA examination report notes that the Veteran was unable to abduct his right arm significantly without significant pain. Examination revealed pain after 80 degrees of abduction, but otherwise no change in symptoms with repeated activity. Full range of motion existed with 180 degrees of flexion and abduction. There was a slight decrease in internal rotation to 70 degrees. Strength was 5/5. Sensation was intact. Reflexes were intact. During a December 2011 hearing the Veteran testified that he had severe pain when using his right shoulder. He was completely unable to reach over his head and could only lift a limited amount. He indicated that his pain was always present, but sometimes was worse than others. A January 2012 VA examination report notes that range of motion of the right shoulder was: flexion to 90 degrees with pain at 0 degrees; and abduction to 90 degrees with pain at 0 degrees. There was no change in range of motion with repetitive testing. The examiner stated that there was no ankylosis. The right shoulder was painful to palpation. Strength was 5/5. Based on the foregoing medical evidence, the Board finds that the Veteran is not entitled to a disability rating in excess of 40 percent for his service-connected right shoulder disability for the period beginning May 11, 2007. Initially, the Board notes that the 40 percent rating under Diagnostic Code 5201 is the maximum rating available under this code. Moreover, the objective medical evidence does not show that e the Veteran's right shoulder disability has been manifested by symptomatology that more nearly approximates the criteria for a higher rating under another diagnostic code (specifically, Diagnostic Codes 5200 or 5202) at any point during the appeal period. There is no evidence to show ankylosis (i.e., a complete lack of motion in the joint), flail shoulder, nonunion, or fibrous union of the right shoulder. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 40 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms. Although it was noted in the record that the Veteran exhibited pain on motion and some limitation of motion due to pain, these findings have already been taken into consideration in the assignment of the current 40 percent rating for the period at issue. The Board has considered the Veteran's contentions, but finds that criteria for a higher rating has not been demonstrated at any point during the appeal period; therefore, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. See Hart, supra; 38 U.S.C.A. § 5107(b). The Board has also considered whether the record raises the matter of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology of his right shoulder disability. Specifically, the rating schedule contemplates limited painful motion. This is the main symptom of the Veteran's right shoulder disability. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability at issue, but the medical evidence reflects that those manifestations are not present in this case. The competent evidence does not show that the disability cause marked interference with employment, requires frequent hospitalizations, or otherwise produce impairment unrecognized by the schedule. (In this regard, the Board also notes that the Veteran is in receipt of a TDIU rating.) Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER Entitlement to a rating in excess of 30 percent for hallux rigidus with severe osteoarthritis of the right first metatarsal phalangeal joint is denied. Entitlement to a rating in excess of 30 percent from May 31, 2006, through May 10, 2007, and a rating in excess of 40 from May 11, 2007, for residuals of right rotator cuff tear is denied. REMAND Additional development is required before the Veteran's remaining claims are decided. Service Connection for Left Shoulder Disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Furthermore, service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, the veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In the present case, the Veteran maintains that he fell and injured his left shoulder as a result of hallux rigidus with severe osteoarthritis of the right first metatarsal phalangeal joint. In this regard, a March 1972 rating decision awarded service connection for nonspecific minimal degenerative arthritis of the right first metatarsalphalangeal joint (later recharacterized as hallux rigidus with severe osteoarthritis of the right first metatarsal phalangeal joint). The record shows that the Veteran has been treated for left shoulder tendinitis and residuals of left rotator cuff tear. See, e.g., 2001 letter from Dr. M and 2009 treatment records from Howard Regional Health System, respectively. In a February 2001 letter, Dr. M stated that the Veteran fell on some ice in December 2000 and injured his left shoulder. In a July 2009 letter, Dr. L noted the Veteran's history of falls and indicated that his current left shoulder disability began in 2008. He opined that it is at least as likely as not that the Veteran's left shoulder problems are related to falls caused by the Veteran's right foot and ankle problems. There is no etiology opinion of record that is adequate for adjudication purposes. It is the judgment of the Board that a VA examination that takes into account the Veteran's entire history would facilitate its decision on this claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Therefore, the Veteran should be afforded a VA examination to determine the nature and etiology of any recent or current left shoulder disability, to include whether it was caused or aggravated by his service-connected right toe disability. Prior to the examination, all outstanding, pertinent medical records should be obtained. Increased Rating for Headaches The most recent VA examination to determine the degree of severity of the Veteran's service-connected headaches was in January 2012. Thereafter, in a May 2012 statement, the Veteran essentially stated that this disability had gotten worse. When a veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing him with a new examination. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Veteran should accordingly be scheduled for examinations to determine the current severity of his headaches. Prior to the examination, the RO or the AMC should obtain and associate with the claim files all outstanding treatment records pertinent to this issue. Accordingly, the case is REMANDED for the following action: 1. With the Veteran's assistance, obtain any outstanding pertinent VA or private treatment records. 2. Thereafter, arrange for the Veteran to be afforded a VA examination by a physician with the appropriate expertise to determine whether it is at least as likely as not that any left shoulder disability diagnosed during the appeal period was caused or aggravated by his service-connected hallux rigidus with severe osteoarthritis of the right first metatarsal phalangeal joint. The claims files must be made available to and reviewed by the examiner, and any indicated studies should be performed. A notation to the effect that this record review took place should be included in the examination report. Based on review of the pertinent medical history, examination of the Veteran, and with consideration of sound medical principles, the examiner should provide an opinion with respect to the Veteran's left shoulder disability present during the period of this claim as to whether there is a 50 percent or better probability that the disability was caused or permanently worsened by the Veteran's hallux rigidus with severe osteoarthritis of the right first metatarsal phalangeal joint. The examiner must explain the rationale for all opinions expressed. All findings and conclusions should be set forth in a legible report. If the examiner opines that the question cannot be resolved without resorting to speculation, then a detailed medical explanation as to why causation is unknowable must be provided. 3. Also, arrange for the Veteran to be scheduled for a VA examination by an examiner with the sufficient expertise to ascertain the current severity and manifestations of his service-connected headaches. The claims files and any pertinent evidence in Virtual VA that is not included in the claims files must be made available to and reviewed by the examiner, and any indicated studies should be performed. The report of the examination should include a history regarding the frequency and extent that the headaches result in prostrating attacks, and if so, their effect on the Veteran's economic adaptability. The supporting rationale for all opinions expressed must be provided. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims files if the Veteran fails to report for the examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claims. 5. Thereafter, review the claims files and ensure that the requested development has been conducted and completed in full and adequately. If any development is incomplete, appropriate corrective action is to be implemented. 6. Then, readjudicate the remaining issues based on a de novo review of the record. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. The appellant need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs