Citation Nr: 1318717 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 07-15 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable disability rating for chronic right shoulder impingement. 2. Entitlement to an initial compensable disability rating for chronic left shoulder impingement. 3. Entitlement to an initial compensable disability rating for bilateral pes planus. 4. Entitlement to an initial compensable disability rating for a chronic strain of the right wrist. 5. Entitlement to an initial compensable disability rating for a chronic strain of the left wrist. 6. Entitlement to an initial compensable disability rating for hallux valgus with bunion of the right great toe. 7. Entitlement to an initial disability rating greater than 10 percent for hallux valgus with bunion of the left great toe. 8. Entitlement to an initial disability rating greater than 10 percent for residuals of a torn right Achilles tendon, status post repair. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1984 to March 2005. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, PA, which awarded the Veteran service connection for each of the above-listed disabilities. The Veteran disagreed with each assigned initial rating, and perfected an appeal as to all eight issues. Jurisdiction in the case currently rests with the RO in Waco, Texas. The Board notes that the RO originally rated the Veteran's left great toe hallux valgus disability noncompensably (zero percent) disabling, effective April 1, 2005. During the pendency of this appeal, the RO increased the rating from 0 to 10 percent, and made the increase effective the original date of service connection. The Veteran desires to continue his appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (noting that when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). The Veteran testified at a Travel Board hearing which was chaired by the undersigned at the Waco RO in March 2013. A transcript of the hearing has been associated with the Veteran's VA claims folder. At this hearing, the Veteran submitted additional medical evidence relevant to his shoulder and wrist claims directly to the Board, accompanied by a waiver of initial consideration of this evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2012). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Significantly, the record does not reflect that the Veteran's service-connected right and left shoulder disabilities, and/or his pes planus render him unable to secure or follow a substantially gainful occupation, and the Veteran has not alleged as much. Indeed, the Veteran specifically testified that he is currently employed. See the March 2013 Hearing Tr. at 22. Accordingly, the Board concludes that it does not currently have jurisdiction over the matter of total disability based on unemployability has not been raised by either the Veteran or the record. The Veteran's right and left wrist, right and left great toe hallux valgus, and right Achilles tendon claims are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the pendency of this appeal, the Veteran's service-connected right shoulder impingement disability most closely approximated a disability picture involving joint pain on use and limitation of motion of no less than 160 degrees in abduction. 2. Throughout the pendency of this appeal, the Veteran's service-connected left shoulder impingement disability most closely approximated a disability picture involving joint pain on use and limitation of motion of no less than 100 degrees in abduction. 3. Throughout the pendency of this appeal, the Veteran's service-connected pes planus manifested in symptoms of mild severity that were relieved by built-up shoe or arch supports. 4. The Veteran's right shoulder, left shoulder and pes planus disabilities have not presented an exceptional or unusual disability picture with such related factors as a marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. As of April 1, 2005, the criteria for the assignment of a 10 percent, but not more, initial rating for the Veteran's right shoulder impingement disability have been met, based upon painful motion of the affected joint. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2012). 2. As of April 1, 2005, the criteria for the assignment of a 10 percent, but not more, initial rating for the Veteran's left shoulder impingement disability have been met, based upon painful motion of the affected joint. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2012). 3. The criteria for the assignment of a compensable initial disability rating for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5276 and 5284 (2012). 4. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant matters. The VCAA provides 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. The VCAA also requires 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. 38 C.F.R. § 3.159(b). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). 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). With respect to the Veteran's initial rating claims for right shoulder, left shoulder and pes planus disabilities, the Board notes that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91; see also VAOPGCPREC 8-2003 (Dec. 22, 2003); 38 C.F.R. § 3.159(b)(3)(i). As such, because service connection for the above disabilities and his bilateral pes planus has already been granted, VA's VCAA notice obligations with respect to the issue of entitlement to a higher initial evaluations for these disabilities are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (noting that where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, post-service VA and private treatment records, and his own lay statements and testimony have been associated with the claims file. Neither the Veteran nor his representative has identified any outstanding evidence, to include any other medical records, that could be obtained to substantiate the Veteran's right and left shoulder or bilateral pes planus claims, and the Board is also unaware of any such outstanding evidence. Pertinently, the Veteran submitted private treatment records pertaining to physical therapy he received for his shoulder disabilities at the March 2013 hearing, accompanied by a waiver of initial consideration by the AOJ. With respect to the VA examinations conducted in conjunction with this appeal, the Board observes that the findings contained therein are adequate to adjudicate the Veteran's right and left shoulder and bilateral pes planus claims. The Veteran filed his original service-connection claim for these disabilities while still on active service in Korea in 2004. Original assessment reports pertaining to his claimed disabilities are of record, dated in January and August 2005. Although these reports do not indicate whether the respective examiners were able to review the Veteran's entire medical history, the reports are informative as to the Veteran's diagnoses and the severity of these disabilities at the time. The Veteran subsequently appeared for full VA joint and flatfoot examinations in December 2006 and July 2012, and the corresponding examination reports are also of record. Notably, the December 2006 VA examiner specifically indicated in his report that he reviewed the Veteran's claims folder in conjunction with the VA examination. Upon review of the July 2012 examination report, although not explicitly stated, it is clear that the examiner did review the record as well, as multiple references to prior medical diagnoses and findings are documented within the report. Indeed these reports reflect that each examiner was aware of the Veteran's pertinent medical history, recorded the Veteran's current complaints, conducted physical examinations, and rendered appropriate findings and diagnoses consistent with the other evidence of record. Neither the Veteran nor his representative has challenged the adequacy of any of these examinations. Although the Veteran's representative has recently suggested that each of the Veteran's disabilities at issue in this case have worsened in severity to warrant at least a compensable evaluation [see March 2013 Hearing Tr. at 2], with respect to the Veteran's right and left shoulder impingement disabilities and his pes planus, the Board does not believe that the medical evidence of record is too old to adequately evaluate the Veteran. See VAOPGCPREC 11-95 (a claim need not be remanded solely because of the passage of time when an otherwise adequate VA examination was conducted); see also Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007) (noting that another VA examination is not warranted based on the mere passage of time). There appears to be ample medical evidence already of record pertaining to the Veteran's shoulder and pes planus disabilities. Additionally, the Veteran's March 2013 hearing testimony regarding the severity of his current symptomatology appears consistent with what he reported to his VA and private treating physicians in prior years. Because the Veteran has submitted no medical evidence indicating a change in the severity of these disabilities during the time period since his last examinations in July 2012, nor any additional lay statements indicating that he has sought medical treatment for these claimed disabilities since July 2012, the Board finds that re-examinations are not required. 38 C.F.R. § 3.327 (2012). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VA employee who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. The undersigned set forth the issues to be discussed at the hearing and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims, to include evidence indicating that the Veteran's service-connected disabilities may have worsened in severity. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that the Board can adjudicate the claims based on the current record. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the issues on appeal has been consistent with said provisions. The Board is satisfied that any procedural errors in the AOJ's development and consideration of the issues on appeal were nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103. He has retained the services of a representative and presented testimony before the undersigned at a personal hearing. Accordingly, the Board will now address the issues on appeal below. Initial rating for right and left shoulder impingement Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992); see also Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (recognizing that a disability rated under an analogous rating code will not show all objective criteria of the analogous rating). The Veteran's service-connected right and left shoulder impingement disabilities have each been rated noncompensably disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5201 [limitation of motion of the arm] from the effective date of service connection, April 1, 2005 to the present day. As the lay and medical evidence of record demonstrates that the Veteran's shoulder disabilities do in fact manifest in pain and some limitation of motion, the Board will analyze whether a compensable disability rating may be awarded for either shoulder disability at any time from the effective date of service connection to the present day under Diagnostic Code 5201. See Fenderson v. West, 12 Vet. App. 119 (1999) (finding that, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period). Diagnostic Code 5201 provides that limitation of motion of the major and minor arm at shoulder level warrants a 20 percent disability rating. Limitation of motion of the major arm midway between the side and the shoulder level warrants a 30 percent rating, and limitation of motion of the minor arm to the same level warrants a 20 percent disability rating. Limitation of motion of the major arm to 25 degrees from the side warrants a maximum 40 percent rating, while limitation of motion of the minor arm to same degree warrants a maximum 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal ranges of upper extremity 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. See 38 C.F.R. §4.71, Plate I (2012). It is the intention of the rating schedule to recognize any painful, unstable or malaligned joint, due to healed injury, by assigning at least the minimum compensable rating for that joint. 38 C.F.R. § 4.59 (2012). The Court in Burton v. Shinseki expressly determined that 38 C.F.R. § 4.59 provides for a minimum 10 percent rating for painful, unstable, or malaligned joints, which involve residuals of injuries in non-arthritis contexts. 25 Vet. App. 1, 4-5 (2011). Moreover, with respect to all service-connected joint disorders, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45 (2012); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (holding that, to adequately portray the functional loss of musculoskeletal disabilities, a medical examination must "express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time"). However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2012); Johnson v. Brown, 9 Vet. App. 7 (1996). During the appeal period, the ranges of motion of the Veteran's right and left shoulders have been measured on five occasions. First, at a January 2005 VA examination, the Veteran had normal shoulder range of motion bilaterally, with forward flexion to 180 degrees, abduction to 180 degrees, and external and internal rotations to 90 degrees. The Veteran only complained of pain while doing pushups. See January 2005 VA examiner's report, printed on DA Form 4700. In December 2006, the Veteran appeared for another joints examination. At that time, he was able to forward flex both shoulders from 0 to 180 degrees, abduct from 0 to 170 degrees, and rotate from 0 to 90 degrees both internally and externally. Objective evidence of painful motion was noted at this examination at extremes of abduction for both shoulders. The Veteran's private physical therapy reports, dated February 23, 2010 and March 22, 2010 also include range of motion findings. In February 2010, the Veteran was able to forward flex his left arm to 160 degrees, abduct to 100 degrees, and rotate externally to 75 degrees. He could forward flex his right arm to 160 degrees, abduct to 160 degrees, and rotate externally to 80 degrees. Each of these movements were accompanied by pain. One month later, in March 2010, the Veteran was able to forward flex both arms to 160 degrees, abduct to 160 degrees and rotate externally to 80 degrees. The Veteran's treating physician did not indicate whether these movements were in fact accompanied by pain as well. Finally, at the Veteran's July 2012 VA examination, the Veteran was able to forward flex both arms to 180 degrees and abduct to 180 degrees without any evidence of painful motion. No rotation measurements were taken at this examination. It is clear from these range of motion findings that the Veteran's right and left shoulder disabilities have manifested in some degree of limitation of motion with pain throughout the appeal period. Crucially however, at no time during the period was the Veteran incapable of abducting either arm beyond 90 degrees, at shoulder level. Because Diagnostic Code 5201 requires, at the very least, limitation of abduction to shoulder level for the assignment of a compensable disability rating, an initial rating greater than zero percent is not warranted under this Code for each shoulder disability. See 38 C.F.R. § 4.31 (2012) (noting that in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met). Significantly however, as noted above, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least a 10 percent disability rating under 38 C.F.R. § 4.59; see also Burton, 25 Vet. App. at 5. Because the Veteran has competently and credibly noted the presence of pain on motion of each arm at the shoulder for all times during the period under review, the Board finds that he is indeed entitled to a minimum rating of 10 percent for each shoulder disability as of the effective date of service connection, April 1, 2005, under the provisions of 38 C.F.R. § 4.59. While concluding that 10 percent ratings are appropriate, the Board finds no basis upon which to grant higher evaluations for either shoulder at any time during the period under review. Indeed, the Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45 and the holding of DeLuca, and recognizes the Veteran's recent complaints of shoulder pain, popping and grinding on movement. See March 2013 Hearing Tr. at 10. The Board finds the Veteran's descriptions of his own shoulder symptomatology both competent and credible. Nevertheless, as shown above, each of the range of motion measurements of record demonstrate that the Veteran is able to regularly achieve at least 100 degrees of arm abduction bilaterally, with or without pain, which exceeds the maximum range of 90 degrees of abduction considered for a 20 percent rating under Diagnostic Code 5201 above. The Board points out that during the entire eight year period under review, the Veteran demonstrated limited abduction to 100 degrees for the left shoulder on only one occasion in February 2010. Indeed, within one month, he was able to abduct again to 160 degrees, and by 2012, he was able to abduct to 180 degrees without pain. The Board finds the objective medical evidence documenting the Veteran's range of motion outweighs his competent lay statements of shoulder problems. The Board places more weight on the medical reports because they were performed by a skilled medical professional with specialized knowledge the working movements of the body. 38 C.F.R. § 3.159(a)(2). The Board adds that the December 2006 VA examiner specified that "no additional limitations are noted with 3 repetitions of movement during the physical examination that is related to pain, fatigue, incoordination, weakness, or lack of endurance." See December 2006 VA examiner's report, at 6. Similarly, the July 2012 VA examiner also noted that the Veteran exhibited no additional limitation of range of motion following repetitive-use testing, and added that the Veteran demonstrated no functional loss in either extremity. Thus, while it is clear that the Veteran experiences some pain and limitation of motion due to his right and left shoulder disabilities (this is now compensated with the minimum compensable rating for each shoulder), such loss does not closely approximate the criteria contemplated by the assignment of a higher disability rating [20 percent or greater] under 38 C.F.R. §§ 4.40 and 4.45. The Board has considered whether diagnostic codes other than Diagnostic Code 5201 may be more appropriate or more advantageous to the Veteran in this case. Specifically, Diagnostic Code 5200 [ankylosis of the scapulohumeral articulation], which allows for a disability rating of up to 50 percent for a major arm, and 40 percent for a minor arm, is not for application in this case, as the medical evidence of record clearly shows that the Veteran's shoulders are not ankylosed at any level. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Although the Veteran's shoulder disabilities do manifest in some limitation of motion, neither shoulder is fixed without motion at any degree or angle, and the Veteran does contend as much. The evidence of record also includes no indication that the Veteran's shoulder disabilities manifest in impairment of the right or left humerus (to include loss of head, nonunion, fibrous union, malunion, or recurrent dislocation of the scapulohumeral joint), or clavicle or scapula impairment (to include dislocation, nonunion or malunion). Thus, Diagnostic Codes 5202 and 5203 are also not for application in this case. There is some evidence of record indicating that the Veteran has arthritis of the left acromioclavicular (AC) joint which may or may not be related to his service-connected left shoulder impingement disability. See, e.g., Veteran's December 31, 2009 private radiology report from Dr. J.A.K.; but see the July 2012 VA examiner's report for the shoulders (specifically indicating that the Veteran has no AC joint condition, and that no degenerative or traumatic arthritis is shown upon review of x-rays). Assuming for the sake of argument that the Veteran's arthritis is part of his service-connected disability picture, the Board has considered rating the Veteran's left shoulder disability under Diagnostic Code 5003 [arthritis], but has determined that doing so would not avail the Veteran of an increased rating. Indeed, Diagnostic Code 5003 specifies that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. As discussed above, because the Veteran is able to raise his left arm above his left shoulder [that is, higher than 90 degrees in abduction], a compensable rating is not warranted under Diagnostic Code 5201. The Board recognizes that under Diagnostic Code 5003, a rating of 10 percent is for application if the limitation of motion of the joint involved is in fact noncompensable under the appropriate diagnostic code. Notably however, the Board has already determined that a 10 percent rating is indeed warranted in this case for the Veteran's left shoulder disability due to painful motion on use under the provisions of 38 C.F.R. § 4.59, irrespective of the presence of arthritis. See Burton, 25 Vet. App. at 4-5 (clarifying that the scope of 38 C.F.R. § 4.59, which discusses painful motion, is not limited to arthritis claims). Thus, even if Diagnostic Code 5003 were applicable in this case, use of that code would not help the Veteran attain an initial rating greater than the 10 percent rating now assigned. Finally, the Board notes that the Veteran underwent a VA muscle examination in July 2012 in addition to a shoulder examination. The VA muscle examiner specified that the Veteran had not sustained an injury to the muscle group of the shoulder girdle or arm. Significantly, at the July 2012 shoulder examination, the Veteran exhibited normal muscle strength of both shoulders [5/5] on testing. While the Veteran's service-connected impingement disability may cause pain with activity, to include when doing push-ups, based on the objective findings above identifying the presence of normal muscle strength on testing, the Board finds that a rating greater than 10 percent would not be warranted under the schedule of ratings for muscle injuries under 38 C.F.R. § 4.73, in particular Diagnostic Codes 5301-5304, which require "moderately severe" injury of the muscles in Group I, II, III, or IV. In sum, for the reasons discussed above, two 10 percent ratings are warranted for the Veteran's right and left shoulder impingement disabilities respectively under the provision of 38 C.F.R. § 4.59, as of the effective date of service connection, April 1, 2005. The evidence of record does not demonstrate that the overall disability picture exhibited by the Veteran's service-connected shoulder disabilities warrant a disability rating higher than 10 percent at any time during the period under review. 38 C.F.R. §§ 4.3, 4.7. As such, the assignment of an initial rating greater than 10 percent for each shoulder disability is not warranted on a schedular basis, and staged ratings are not for application. For the sake of economy, the Board will address the matter of referral of the Veteran's service-connected disabilities for consideration of an extraschedular rating in a common discussion below. Initial rating for bilateral pes planus The Veteran is currently service-connected for bilateral pes planus. A noncompensable disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5276 [flatfoot, acquired] has been in effect since the effective date of service connection, April 1, 2005 (the day following separation from active service). The Veteran asserts that a higher initial rating is warranted for the entirety of the appeal period. Under Diagnostic Code 5276, a noncompensable rating is awarded for mild symptoms relieved by built-up shoe or arch support. A 10 percent rating contemplates moderate disability with weight-bearing over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet, bilateral or unilateral. A higher evaluation of 30 percent is assigned for severe bilateral acquired flatfoot, with objective evidence of marked deformity, pain on manipulation and use accentuated an indication of swelling on use, and characteristic callosities. A maximum 50 percent evaluation is assigned for pronounced bilateral acquired flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). In addition to Diagnostic Code 5276, the Board has considered whether other diagnostic codes are appropriate for application in this case. Notably however, the Veteran has not been assessed with weak foot, claw foot, hallux rigidus, or malunion of tarsal or metatarsal bones. Thus, Diagnostic Codes 5277, 5278, 5281, and 5283 are not for application. Although a July 2012 VA examiner noted in a report specific to the assessment of foot disabilities other than pes planus the presence of metatarsalgia and hammertoes on both feet, these foot disabilities have not been service-connected themselves, nor have they been medically attributed to the Veteran's pes planus disability. Indeed, the July 2012 VA flatfoot examiner specifically indicated that the Veteran had no pertinent physical findings, complications, conditions, signs and/or symptoms related to his service-connected pes planus disability other than those noted in the flatfoot examination, which essentially consist of foot pain alleviated by use of shoe inserts. See Veteran's July 2012 VA flatfoot examination report, at 5. As such, Diagnostic Codes 5279 and 5282 are also not for application. The Veteran is already service-connected for hallux valgus of the right and left great toe. His claims for higher initial ratings for these disabilities will be discussed in the Remand section of this decision below. Thus, for the purposes of rating the Veteran's service-connected pes planus, diagnostic Code 5280 also is not for application. Finally, Diagnostic Code 5284 [foot injuries, other] is, in essence, a "catch-all" provision which is intended to cover a variety of foot disabilities. See VAOPGCPREC 9-98 (Aug. 14, 1998). In this connection, in addition to Diagnostic Code 5276, the Board will also consider rating the Veteran's service-connected pes planus under Diagnostic Code 5284, which provides for a 30 percent rating for severe disability, a 20 percent rating for moderately severe disability, and a 10 percent rating for moderate disability. The Note following this criteria indicates that disability with actual loss of use of the foot should be rated 40 percent disabling. The words "moderate," "moderately severe" and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2012). As noted above, the Veteran has been diagnosed with multiple foot disabilities in addition to pes planus, to include service-connected hallux valgus of both great toes with bunions, metatarsalgia, and hammertoes. The Board is precluded from differentiating between symptomatology attributed to a service-connected disability and other disabilities in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Crucially however, in this case, the medical evidence of record does identify which symptoms are attributable to the Veteran's pes planus [namely, foot pain alleviated by shoe inserts], and which are not. Indeed, as noted above, the July 2012 VA examiner specifically determined that the Veteran had no other pertinent physical findings, complications, conditions, signs and/or symptoms related to his service-connected pes planus disability other than those noted in the examination report. See Veteran's July 2012 VA flatfoot examination report, at 5. In the same vein, as will be discussed in the remand section below, the Veteran did complain of ongoing and worsening pain symptomatology of the feet at the March 2013 hearing, but it appears that his complaints pertained largely to his service-connected hallux valgus disabilities with bunions, and not to his bilateral pes planus disability. Indeed, for his pes planus, the Veteran simply stated that for treatment, he buys inserts from a machine, puts them in his shoes, and "goes about [his] business." See March 2013 Hearing Tr. at 16. While the Veteran did note the presence of arch pain, he specifically indicated that he has to have the insert, which helps for support. See id. at 18. As noted above, a noncompensable disability rating is assigned under Diagnostic Code 5276 for mild pes planus, with symptoms relieved by built-up shoe or arch support. A compensable 10 percent disability rating is not warranted unless the service-connected pes planus manifests in moderate disability, with weight-bearing over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet, bilateral or unilateral. The Board notes that these criteria are conjunctive; all three elements must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (noting that the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). The medical evidence of record demonstrates that the Veteran has been using orthotics to help treat his flat feet for the entirety of the appeal period. Indeed, the January 2005 VA examiner specifically highlighted the Veteran's use of inserts and orthotics which "seem[ed] to help," and confirmed that the Veteran's disability was "mild" without tenderness on the soles, and with normal angulation. Subsequently, the Veteran also reported use of orthotics to a December 2006 VA examiner. Although this examiner noted that on weight-bearing, the Veteran's Achilles tendon was in two degrees of valgus, and off weight-bearing, zero degrees, he indicated that such was correctible by manipulation without pain. Further, the December 2006 VA examiner specifically indicated that he did not observe any callosities, breakdown, or unusual shoe wear pattern that would indicate abnormal weight-bearing. It does not appear that the Veteran sought treatment specifically for pes planus for years following this December 2006 VA examination. In early 2012, the Veteran did experience some foot swelling, but the swelling had subsided by the time he sought the treatment. See the Veteran's March 21, 2012 VA Nursing Evaluation note. Upon examination in July 2012, the Veteran reported pain associated with service-connected bunions of both feet, but not with his pes planus. The VA flatfoot examiner pertinently observed no pain on use or manipulation of the feet, no swelling on use, and no extreme tenderness of the plantar surfaces of either foot. The examiner also confirmed that the Veteran's symptoms were relieved by arch supports. With respect foot alignment and deformity, although the examiner noted the presence of characteristic calluses, the Veteran did not have objective evidence of marked deformity or marked pronation of either foot. In addition, his weight-bearing line did not fall over or medial to the great toe of either foot, and he did not exhibit inward bowing of the Achilles tendon for either foot. Further, the examiner observed no marked inward displacement and severe spasm of the Achilles tendon on manipulation. The Veteran required no assistive devices other than his orthotic inserts, and examiner identified no limitation of function. As the evidence of record fails to demonstrate that during the period under review the Veteran's bilateral pes planus manifested in abnormal weight-bearing such that the weight-bearing line is over or medial to the great toe, in bowing of the tendo achillis, and in pain on manipulation and use of the feet, a compensable 10 percent disability rating under Diagnostic Code 5276 is not warranted. It follows that higher ratings of 30 and 50 percent are also not warranted, as more severe symptoms such as marked deformities and accentuated pain on manipulation and use as well as swelling and callosities, and marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation are also not evident in the record. 38 C.F.R. § 4.7; cf. Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009) (finding that § 4.7 should not be applied to the successive rating criteria of DC 7913). Based on the lay and medical evidence noted above, the Board believes that the Veteran's pes planus symptomatology most nearly approximates the criteria required for the currently-assigned noncompensable rating under Diagnostic Code 5276, and no higher. 38 C.F.R. § 4.7 (2012). Indeed, the evidence strongly favors a finding that the Veteran's pes planus is "mild" in severity, with symptoms relieved by built-up shoe or arch support. Thus, when applying this code alone, a higher initial rating, or subsequently staged ratings are not warranted at any time during the period under review. See Fenderson v. West, 12 Vet. App. 119 (1999). As noted above, Diagnostic Code 5284 provides for a 30 percent rating for severe disability, a 20 percent rating for moderately severe disability, and a 10 percent rating for moderate disability. Crucially however, the Veteran's pes planus was specifically determined to be "mild" in severity in January 2005, with no indication that it worsened in severity in the years subsequent. Although the Veteran did report foot swelling to VA in early 2012, the swelling subsided quickly and was not evident upon examination in July 2012. The Veteran did not exhibit patterns of abnormal weight bearing during the period under review, and there did not appear to be a change in the character of pain the Veteran was experiencing. Pertinently, the July 2012 VA examiner indicated that the Veteran's pes planus caused no functional impact on his ability to work. The Board accordingly finds that a compensable initial rating under Diagnostic Code 5284 for either foot is also not for application, as a foot injury of a "moderate" degree of severity or higher is simply not demonstrated by the record. Because Diagnostic Code 5276 is not predicated on a limited range of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 [pertaining to functional loss due to pain, fatigability, etc.], are not for application when rating under that code. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In contrast, VA's General Counsel has specifically held that disabilities rated under Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under sections 4.40 and 4.45. See VAOPGCPREC 9-98 (Aug. 14, 1998). In this case however, as there is no indication that the Veteran's pes planus causes functional impairment due to pain, fatigability or weakness beyond what has already been identified by the Veteran and the medical professionals of record, discussed above, a higher disability rating under Diagnostic Code 5284 is also not warranted based on Deluca factors. In sum, the Board finds that the RO appropriately rated the Veteran's bilateral foot pes planus noncompensably disabling under Diagnostic Code 5276, effective April 1, 2005. Thus, an initial compensable rating for this disability is denied for the entire rating period on appeal. Extraschedular considerations Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96 (Aug. 16, 1996). However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. According to VA regulations, an extraschedular disability rating is warranted 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) (2012); 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 determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected right and left shoulder disabilities, and/or his bilateral pes planus. The evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the evidence demonstrates that the Veteran's shoulder disabilities are manifested by pain and limitation of motion to at the very least 100 degrees in abduction. The Veteran's reports of painful motion are considered competent, credible and probative and they support the currently assigned 10 percent evaluation which contemplates painful motion. The lay and medical evidence of record also demonstrates that Veteran's pes planus disability is of only mild severity, and that his symptoms are relieved by arch supports. Such mild symptomatology is contemplated in the assignment of a noncompensable schedular rating for pes planus. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluations adequately contemplate the Veteran's levels of disability and symptomatology, the second and third questions posed by Thun become moot. With respect to the Veteran's shoulder disabilities in particular, the Board wishes to make clear that it no way doubts that such disabilities at times cause significant pain and limitation of motion, requiring physical therapy, as demonstrated in the Veteran's recent private treatment records. Crucially however, there is nothing in the record to indicate that the Veteran's service-connected shoulder disabilities cause impairment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER An initial rating of 10 percent, but no higher, is granted for a right shoulder impingement disability, effective April 1, 2005, subject to the statutes and regulations governing the payment of monetary benefits. An initial rating of 10 percent, but no higher, is granted for a left shoulder impingement disability, effective April 1, 2005, subject to the statutes and regulations governing the payment of monetary benefits. An initial compensable rating for bilateral pes planus is denied. REMAND After reviewing the entire record, the Board finds that additional development is warranted to address the merits of the Veteran's remaining initial rating claims, and to ensure that he receives all consideration due to him under the law. See 38 C.F.R. § 19.9 (2012). In November 2005, the RO awarded the Veteran service connection for residuals of an right Achilles tendon tear, status post repair, for right and left great toe hallux valgus with bunions, and for right and left chronic wrist strains. All were initially rated noncompensably disabling, with the exception of hallux valgus of the left great toe, which was initially rated 10 percent disabling. During his current appeal for higher initial ratings, the Veteran appeared at a VA examination in July 2012 so that the severity each of these disabilities could be assessed. With respect to the Veteran's right Achilles tendon, the July 2012 VA examiner observed ankle range of motion to 40 degrees in plantar flexion, and to 20 degrees or greater in dorsiflexion without objective evidence of pain. The Veteran exhibited no additional limitation of motion upon repetitive use, and muscle strength testing showed normal strength [5/5] in both plantar flexion and dorsiflexion. The Veteran only complained of intermittent pain. The Veteran also underwent a VA muscle examination in July 2012, where atrophy of the right calf was noted, but none of the cardinal signs and symptoms of muscle disability were observed, to include loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. Significantly however, at the March 2013 hearing, the Veteran specifically asserted that his right Achilles tendon disability worsened in severity since his July 2012 VA examination. In particular, the Veteran indicated that since the last VA examination he now experiences problems with balance while walking, and has calf weakness "all the time." He noted that he has to rely on his left side for "balance, foundation, walking and so forth," and he cannot jump, stand on his toes, or flex to push his body up. See March 2013 Hearing Tr. at 3-4. With respect to the Veteran's hallux valgus disabilities, the July 2012 VA examiner noted the Veteran's complaints of pain in the right bunion, as well as pain on the left side, and specifically characterized the Veteran's symptoms as "mild or moderate" in severity. The examiner also diagnosed the Veteran with metatarsalgia and hammertoes on both feet. At the March 2013 hearing however, the Veteran described worsened symptomatology, indicating that physicians have now recommended that he have surgery on his right great toe to remove his bunion, which by his own description, has grown to size of a ping-pong ball. See March 2013 Hearing Tr. at 15, 19. The Veteran also noted that he reported to his physician that his toe hurt so bad, he was no longer able wear certain types of shoes. See id. at 15. He testified that he attempts to manage his pain by rubbing topical steroids on toes which were actually prescribed for his disabled knees, and continues treatment at a private pain management center. See id. at 19-20, 22. Finally, with respect to the Veteran's wrist disabilities, the Board initially notes that although he is service-connected for chronic wrist strains, the RO has rated the Veteran's disabilities noncompensably disabling under Diagnostic Code 8515-5215, suggesting there may be both a neurologic and orthopedic component to his disability. Indeed the record demonstrates a post-service diagnosis of carpal tunnel syndrome in February 15, 2007 by Dr. R.E.G., and his service records note treatment for a prior history of carpal tunnel syndrome in 2000 with intermittent symptoms. See Veteran's October 2004 Report of Medical History, at 2. When first rated in November 2005, the RO based its noncompensable rating solely on orthopedic findings, to include limitation of motion assessments. The July 2012 VA wrist examiner noted a diagnosis of bilateral in-service wrist strain, and current complaints of wrist "popping." The examiner observed full range of motion of both wrists, without pain, even after repetitive use. Notably, a subsequent VA nerves examination took place in October 2012, but testing of the median nerve was not performed. Pertinently, at the March 2013 hearing, the Veteran explained that his right and left wrist problems were "out of control," and that he has experienced difficulty grasping and holding on to things. When asked if he felt his condition was getting worse, he responded "without a doubt," and indicated that he experiences stiffness in the wrists, decreased strength, and that by just resting his elbows on a chair, his hands will tingle and go numb. See the March 2013 Hearing Tr. at 10-14. He submitted a private treatment report dated in November 2011 indicating the presence of bilateral median distal sensory latencies. Although new VA examinations are not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). In this case, the Board finds that updated medical examinations assessing the current severity of the Veteran's service-connected right Achilles tendon, his right and left hallux valgus, and his right and left wrist strains are necessary to adequately decide each issue. Indeed, the Veteran is competent to attest to his worsened symptomatology, to include increased pain in the tendon, toes and wrists, balance problems, weakness, decreased strength, bunion growth, problems gripping and holding on to things and ongoing numbness and tingling in the upper extremities. With respect to the Veteran's wrist disabilities in particular, in light of the fact that testing of the median nerve did not take place during the last sequence of examinations, coupled with the fact that the record demonstrates a long history of potentially associated median nerve problems, musculoskeletal and nerve examinations must be scheduled to assess the current nature and severity of these disabilities. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify the private provider(s) of any treatment or evaluation he has received for his service-connected right Achilles tendon, hallux valgus and wrist disabilities, and to provide any releases necessary for VA to secure records of such treatment or evaluation. Obtain complete records of all such treatment and evaluation from all sources identified by the Veteran. Following receipt of authorization, two attempts should be made to obtain relevant private treatment records, unless a formal finding can be made that a second request for such records would be futile. 38 C.F.R. § 3.159(c)(1). In addition, obtain copies of all relevant VA treatment the Veteran has received since November 2012 from the Central Texas VA Healthcare System, or any other VA facility identified by the Veteran. Efforts to obtain these records should be memorialized in the Veteran's claims file. If any requested records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2. After completion of the development described in item (1) above, schedule the Veteran for appropriate VA examinations for the purposes of assessing the nature and severity of his current right Achilles tendon disability, his right and left toe hallux valgus disabilities, and his right and left wrist strains. The entire claims file (i.e. both the paper claims file and any relevant medical records contained in Virtual VA), and a copy of this REMAND should be made available and be reviewed by each examiner in conjunction with their respective examinations, and the examiners should confirm that such records were available for review. The examiners should specifically address the following: a.) With respect to the Veteran's right Achilles tendon disability, both VA joint and muscle examinations must be administered. The VA joint examiner should specifically identify (1) range of motion of the Veteran's right ankle, including motion accompanied by pain, in degrees; and (2) functional impairment, including upon repetitive testing, due to pain, incoordination, weakened movement, and excess fatigability on use. The VA muscle examiner should identify the muscle group affected by his Achilles disability in the right calf, and comment on whether there is exhibited loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and/or uncertainty of movement due to any muscle injury. The examiner is also requested to characterize, to the extent possible, the severity of any such injury as slight, moderate, moderately severe, or severe. b.) With respect to the Veteran's right and left great toe hallux valgus disability, the VA foot examiner should determine the nature, extent, frequency and severity of any impairment related to hallux valgus and bunions of either toe. In particular, the examiner should specifically indicate whether either toe disability manifests in "severe" symptomatology, as if equivalent to amputation of the great toe. If the Veteran currently has other foot conditions that are as likely as not (50 percent or greater probability) caused or aggravated by either hallux valgus disability, to include metatarsalgia or hammertoes, this should be made clear. c.) With respect to the Veteran's chronic right and left wrist strains, both VA joint and neurological examinations must be administered, to include medial nerve testing. The VA joint examiner should specifically identify (1) range of motion of the Veteran's wrists, including motion accompanied by pain, in degrees; and (2) functional impairment, including upon repetitive testing, due to pain, incoordination, weakened movement, and excess fatigability on use. If the examiner determines that pain limits functional ability during repetitive, the examiner should specific the degree of additional range-of-motion loss, if feasible The VA neurological examiner should similarly asses the severity of any nerve impairment affecting the Veteran's right or left wrist. The examiner should specifically discuss to what extent such impairment, if at all, is a manifestation or symptom of the Veteran's service-connected right and/or left wrist strains. If a stand-alone neurological disability is diagnosed, to include carpal tunnel syndrome, the examiner should indicate whether such is as likely as not (50 percent or greater probability) related to the Veteran's service, or as likely as not caused or aggravated by the Veteran's service-connected wrist strains. All opinions provided must be thoroughly explained, and a well-reasoned rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state, and provide a supporting explanation as to why an opinion cannot be provided. 3. Following the completion of the foregoing, and after undertaking any other development it deems necessary, review all the evidence of record (to include any and all relevant evidence added to the Veteran's electronic claims folder) and readjudicate the initial rating claims. If any of the Veteran's claims are denied, in whole or in part, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Paul Sorisio Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs