Citation Nr: 1321780 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-12 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right ankle disability, including as a residual of a sprain. 2. Entitlement to an initial rating higher than 10 percent for degenerative joint disease (i.e., arthritis) of the right shoulder. WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had active military service from September 2004 to March 2007. This appeal to the Board of Veterans' Appeals (Board) is from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for degenerative joint disease of the right shoulder and assigned an initial 10 percent rating for this disability retroactively effective from March 10, 2007. However, the RO denied service connection for a right ankle disability. In addition to appealing the denial of this claim for service connection for a right ankle disability, the Veteran also appealed for a higher initial rating for his right shoulder disability that was determined service connected. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating that, in this circumstance, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award, if there have been variances in the severity of the disability). In March 2012, as support for his claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. Although the Veteran was represented at his videoconference hearing by the Georgia Department of Veterans Services, the claims file did not contain a properly executed and completed Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) in favor of this organization. Accordingly, in a June 2012 letter, the Board wrote the Veteran and asked that he clarify his wishes regarding representation. He was told that if he did not respond within 30 days, the Board would assume that he wanted to represent himself, so would proceed pro se. He did not respond to that letter. Thus, absent completion and submission of the required paperwork to officially designate the Georgia Department of Veterans Services as his representative of record in this appeal, or some other Veterans Service Organization (VSO), agent or attorney, the Board must presume he is unrepresented in this appeal. In September 2012 the Board remanded the claims to the RO via the Appeals Management Center (AMC) for further development, which especially included obtaining all outstanding medical treatment records. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must address the issue of derivative entitlement to a total disability rating based on individual unemployability (TDIU) in increased-rating claims when the issue of unemployability either is raised expressly or by the record. A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased-compensation claims apply to a TDIU claim); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a TDIU claim is informally raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest possible rating for that disability; and (3) submits evidence of unemployability); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased-rating claim only when the Roberson requirements are met). In this particular case at hand, however, the Veteran has not alleged, much less shown, that he is unemployable on account of his service-connected right shoulder disability, meaning incapable of obtaining and maintaining substantially gainful employment because of this disability. At the moment this is his only service-connected disability. During the March 2013 VA compensation examination he recently had on remand, he affirmed that he has been driving a locomotive for a steel mill, so is in fact employed. Therefore a derivative TDIU claim as concerning his right shoulder disability has not been raised either expressly or implicitly. See Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (requiring cogent evidence of unemployability in the record). Unfortunately, the Board must again remand the claim of entitlement to service connection for a right ankle disability, which, as mentioned, is alleged to be the result of a sprain, since this claim requires still further development before being decided on appeal. However, the Board is going ahead and deciding whether the Veteran is entitled to an initial rating higher than 10 percent for the degenerative joint disease (DJD) of his right shoulder FINDINGS OF FACT 1. There is X-ray evidence of DJD, i.e., arthritis in the Veteran's right shoulder, status-post distal clavicle resection, which has associated pain but does not result in limitation of motion; there equally is no indication of ankylosis of the humerus or fibrous union, malunion, or nonunion of the clavicle or scapula with loose movement. 2. The preponderance of the most probative evidence also shows he does not have any muscle damage, nerve impairment, or disability affecting his cervical spine that is proximately due to, the result of, or aggravated by his service-connected right shoulder disability. CONCLUSION OF LAW The criteria are not met for an initial rating higher than 10 percent for this service-connected right shoulder disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201, 5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In deciding this claim for a higher initial rating for the right shoulder disability, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist obligations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran of any information and any medical or lay evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence he is responsible for providing versus the information and evidence VA will obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, showing the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). This increased-rating claim for the right shoulder disability arises from the Veteran's disagreement with the initial rating assigned following the granting of service connection for this disability. Once service connection is granted, the claim as it arose in its initial context has been substantiated, indeed proven, so additional § 5103(a) notice is not required concerning the "downstream" disability rating and effective date elements of the claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), and this line of precedent cases and progeny, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved, and this occurred in this particular instance. The RO provided the Veteran an SOC in February 2009 discussing the applicable statutes and regulations and containing discussion of the reasons and bases for not assigning a higher initial rating for this disability. He also since has received SSOCs containing the same in March 2010 and March 2013. So he has received all required notice concerning this claim. Nonetheless, a VCAA letter was sent to him in April 2007, prior to initially adjudicating his claim of entitlement to service connection for a right shoulder disability in the August 2007 decision at issue in this appeal, so in the preferred sequence. That letter indicated the type of evidence and information needed to substantiate this underlying claim for service connection and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. Since the granting of service connection in the August 2007 decision and perfection of an appeal concerning the "downstream" issue of whether he is entitled to a higher initial rating for this now service-connected disability, additional VCAA letters were sent to him in September 2012, November 2012, and February 2013. Thereafter, this "downstream" claim was readjudicated in the March 2013 SSOC. Regarding the duty to assist, the Veteran's relevant medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This includes his service treatment records (STRs) and post-service VA evaluation, treatment, and compensation examination reports, private medical records, hearing transcript, and his personal lay statements. VA afforded him compensation examinations in April 2007, January 2010, and March 2013 assessing and reassessing the severity of his right shoulder disability, and the examination reports are sufficiently comprehensive and supported by the other evidence of record allowing for evaluation of this disability in relation to the applicable rating criteria. The also are adequate for rating purposes as the claims file was reviewed, so the examiners considered the relevant history, and since they examined the Veteran personally, provided findings in sufficient detail to address the applicable rating criteria, and included discussion of the underlying rationale for their opinions and conclusions regarding the severity of this disability. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the reports of these VA compensation examinations are adequate upon which to base a decision in this increased-rating appeal. The Veteran identified pertinent treatment from a private physician, Dr. C.D., and the Board's September 2012 remand partly was to try and obtain all outstanding medical evaluation and treatment records, whether from private doctors or elsewhere, including VA. This medical provider did not however respond to VA's subsequent request for his records in October 2012. The Veteran was informed of this in the November 2012 notice letter, but he, too, did not respond with any additional information or evidence that would permit the Board to obtain this doctor's records. The Board therefore finds that any further efforts to obtain this doctor's records would be futile, and the Veteran has been appropriately notified of VA's inability to obtain these additional records. 38 C.F.R. §§ 3.159(c)(1), (e)(1). However, VA duly requested and obtained all remaining private records the Veteran identified as potentially pertinent. Thus, "it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand, especially, as here, another remand, would not serve any meaningful or useful purpose or result in any significant benefit to the Veteran). As also already alluded to, the Veteran testified before the undersigned VLJ of the Board during a March 2012 videoconference hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. During the March 2012 videoconference hearing before the Board, the undersigned VLJ reminded the Veteran of the pertinent issue on appeal - his claimed entitlement to a higher initial rating for his right shoulder disability - and of the method VA uses for determining a rating for a disability once, as here, it is determined to be related to military service, i.e., service-connected. The Veteran testified that he then recently had visited a doctor on account of problems with this right shoulder disability, so records of that indicated treatment were requested and obtained pursuant to the Board's subsequent September 2012 remand. Moreover, he did not raise any new issues pertaining to this claim during the course of the hearing. See Bryant, 23 Vet. App. at 497-98. Thus, the Board finds that the hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence when such evidence is missing or has been overlooked has been satisfied. See id. at 496-97. The Veteran has not alleged that there were any deficiencies in the Board hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Moreover, even assuming for the sake of argument there was such a deficiency, the Board finds that it did not prejudice the Veteran's claim. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit. Indeed, in his statements, pleadings and hearing testimony, the Veteran evidenced his actual knowledge of the type of evidence and information needed to substantiate his claim by showing his right shoulder disability is worse than presently rated. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). Analysis of the Claim for a Higher Initial Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's claim, as mentioned, arises from his disagreement with the initial rating assigned following the granting of service connection for his right shoulder disability. In Fenderson, supra, the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service connected. In the Fenderson scenario, where the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged" rating. Fenderson, 12 Vet. App. 125-126. The Court since has extended this practice even to claims that do not involve initial ratings, rather, also established ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal or joint disabilities that are rated at least partly on the basis of the extent there is consequent limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). The provisions of § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). But when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id., at 37. In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id., at 36. Moreover, where the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). While the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity in relation to the pertinent rating criteria or the nature of the service-connected pathology is not, as a general proposition, probative evidence unless involving a simple rather than medically complex condition. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's right shoulder disability is rated as 10-percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5201-5010 (2012). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Use of this particular hyphenated diagnostic code indicates the Veteran has arthritis due to trauma (i.e., post-traumatic arthritris) under DC 5010. According to Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis (hypertrophic or osteoarthritis) established by X-ray findings in turn will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved - which, here, since involving the shoulder, is DC 5201. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, 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. Also according to Diagnostic Code 5003, a 10 percent rating is warranted when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. And a higher 20 percent rating is warranted for this with occasional incapacitating exacerbations. Note (1) indicates these ratings will not be combined with ratings based on limitation of motion. Note (2) indicates these ratings will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Normal shoulder motion is defined as 0 to 180 degrees of forward elevation (flexion), 0 to 180 degrees of abduction, and 0 to 90 degrees of internal and external rotation. See 38 C.F.R. § 4.71, Plate I. Here, the record shows that the Veteran is right handed; therefore, his right shoulder is on his major upper extremity. Under Diagnostic Code 5201, a higher rating of 20 percent is assigned for limitation of motion at shoulder level for the major upper extremity. Limitation of shoulder motion to midway between the Veteran's side and shoulder level warrants a 30 percent rating for the major upper extremity. When there is limitation of motion to 25 degrees from the Veteran's side, a maximum 40 percent rating is warranted for the major upper extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5201. A 20 percent rating also may be assigned under Diagnostic Code 5203 for dislocation of the clavicle or scapula of the major or minor extremity. A 20 percent rating may be assigned as well for nonunion of the clavicle or scapula with loose movement. Without loose movement, a 10 percent rating is assignable. A 10 percent rating additionally may be assigned for malunion of the clavicle or scapula. 38 C.F.R. § 4.71a, Diagnostic Code 5203. Turning now to the facts and circumstances of this particular case. The Veteran's STRs show he sustained injury to his right shoulder during exercise training and eventually underwent arthroscopy of his right shoulder and excision of the distal clavicle in service. Due to his continued complaints of pain following that surgery, he was referred to a Medical Evaluation Board (MEB) and eventually discharged in March 2007. Rather immediately post service, in April 2007, he had a VA compensation examination by QTC Medical Services. He reported pain in his right shoulder traveling down to his elbow. The examiner indicated the Veteran's right shoulder showed signs of tenderness. Flexion and abduction of the right shoulder was to 180 degrees. Internal and external rotation of the right shoulder was to 90 degrees. After repetitive-use testing, his right shoulder was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination. X-rays of the right shoulder showed evidence of arthritic changes, as well as surgical distortion and partial removal of the distal clavicle. Diagnosis was status-post right shoulder condition, degenerative joint disease. In March 2009, the Veteran was referred to a private orthopedic surgeon, G.R.C, D.V.M, M.D, who was employed with Georgia Orthopedic Specialists, Inc. On examination, there was no evidence of muscle atrophy in the right upper extremity. His shoulders were symmetric. He had full range of motion of the right upper extremity. There was no sign of impingement and no evidence of tenderness over the acromioclavicular (AC) joints. Speeds test, impingement testing, and Sulcus sign were negative. Supraspinatus and subscapularis testing were normal. Biceps were nontender. Supination and pronation at the right wrist and elbow were normal and pain-free. Dr. G.R.C. reviewed X-rays of the Veteran's right shoulder and stated that he was status-post distal clavicle resection of approximately 1 cm with no signs of spurring or down-sloping acromion. The glenohumeral joint appeared normal on X-rays. Assessment was residual right shoulder pain, status-post injury and surgery. According to a March 2009 private treatment note, the Veteran visited the Family Medicine Clinic due to right shoulder pain. It was noted that his right shoulder dipped slightly. There was no tenderness on palpation of his scapula, clavicle, or humerus. There was a slight decrease in the range of motion on overhead extension; otherwise, range of motion was normal. There was a palpable deficit in the distant clavicle, shortened by approximately 1 centimeter or less. Grip strength and range of motion were symmetrical. Assessment was shoulder pain. In January 2010 the Veteran had an additional QTC examination. There was tenderness on examination of the right shoulder. There were no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, guarding, deformity, malalignment, drainage, subluxation, or ankylosis. Range of right shoulder motion was within normal limits (flexion and abduction to 180 degrees, and internal/external rotation to 90 degrees). Diagnosis was recharacterized as right shoulder degenerative joint disease, status-post operation, with scars. In a March 2010 letter, J.L, D.C., a private chiropractor, indicated the Veteran had been a patient since August 2007 with initial complaints of right shoulder pain, in pertinent part. J.L. felt the Veteran's right shoulder problem was constant. J.L. also indicated the Veteran's right shoulder had muscle damage which caused it to droop, then putting additional strain on his neck and thoracic muscles. In April 2012, the Veteran sought additional private medical treatment for his right shoulder condition. He reported continued pain. The evaluating physician noted that the positive abduction and external rotation and pain with O'Brien's testing might signify a labral tear. An MRI therefore was ordered, but in a follow-up visit note dated in the same month the evaluating physician concluded there was no MRI evidence of a tear on the labrum or rotator cuff. Physical therapy was then recommended. Also in April 2012, the Veteran sought treatment from another physician, Dr. G.R.C., for right shoulder pain, in pertinent part. Examination of this shoulder showed no significant swelling, erythema, ecchymosis, atrophy, muscle asymmetry, scapular winging or crepitus. Palpation showed no specific tenderness. Atrophy and deformity were not noted. Sensation was intact throughout all dermatomes. Pulses were normal. Reflexes were equal and symmetric. Abduction was to 180 degrees. Upper extremity examination showed no motor or sensory deficits, with full range o of elbow, wrist, and hand motion. Forward flexion of right shoulder was to 180 degrees. Strength of external and internal rotation was graded as 5/5. With arm abducted to 90 degrees, external and internal rotation was to 90 degrees. Grip strength was 5/5. His ligaments were stable. Strength was graded as 5/5 in all upper extremity muscle groups. X-rays of the right shoulder showed no degenerative changes, with normal joint space in the glenohumeral joints. Assessment was right shoulder pain. Later in April 2012, the Veteran had a follow-up visit with B.A.W, M.D., another private physician, concerning his right shoulder. On examination, the Veteran had full range of motion of his right shoulder. Neer and Hawkins tests were normal. He had mild pain with cross-chest abduction. He did not have an unstable clavicle. His rotator cuff strength was 5/5. He had pain with abduction and external rotation and pain with O'Brien's testing. The X-rays reviewed showed his clavicle was in normal position. Dr. B.A.W. questioned whether some of the findings on examination (positive abduction and external rotation and pain with O'Brien's testing) signified a labral tear, so magnetic resonance (MR) arthrogram was to be scheduled to rule out any other intraarticular pathology given the Veteran's continued pain. The arthrogram report shows the following impression: widening of the AC joint with marrow edema at the distal clavicle consistent with prior distal clavicular resection, correlate with clinical history; distal tip of the clavicle appeared to be inferiorly displaced on the sagittal exam, resulting in some moderate narrowing of the anterior aspect of the supraspinatus outlet - correlate with clinical impingement; mild supraspinatus and infraspinatus tendinopathy without rotator cuff tear; and minimal bursitis. Dr. B.A.W. indicated the arthrogram confirmed no evidence of a tear in the Veteran's labrum or of his rotator cuff. Physical therapy was recommended, and a scope if pain continued thereafter. In an October 2012 statement, the Veteran reiterated his report of continued, almost constant pain in his right shoulder, as well as a numbing sensation in his right arm. He also noted that his right shoulder is noticeably lower than his left. He most recently had a VA compensation examination of his right shoulder in March 2013. Flexion and abduction of the right shoulder was to 180 degrees with no objective evidence of painful motion. Range of motion remained the same after repetitive-use testing. Muscle strength of the right shoulder was noted as 5/5 (normal). There was no evidence of ankylosis of the glenohumeral articulation. Hawkins' Impingement test, empty-can test, external rotation/infraspinatus strength test, and lift-off subscapularis test were negative. There was no history of mechanical symptoms such as clicking or catching, or recurrent dislocation of the glenohumeral joint. Crank apprehension and relocation test was negative. The Veteran's surgical excision of the lateral end of the clavicle was noted. There was no tenderness on palpation of the AC joint. Cross-body adduction test was negative. The Veteran had not had a total shoulder joint replacement. The examiner described the Veteran's shoulder residuals as minimal pain and a full range of motion. The Veteran's surgical scars were not painful, unstable or covering a total area greater than 39 sq. cm. Considering this collective body of evidence as a whole, the Board finds that the criteria for an initial rating higher than 10 percent are not met. The RO assigned this 10 percent initial rating based on indications of chronic pain and confirmatory X-ray evidence of arthritis in the right shoulder, when also keeping in mind that DC 5010 refers the rater to DC 5003 and in turn ultimately to DC 5201. In application of DC 5003, the Court has held that "painful motion of a major joint... caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59 (2012). With any form of arthritis, painful motion is an important factor of disability. See id. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. As already explained, joints that are actually painful, unstable, or malaligned should be entitled to at least the minimum compensable rating for the joint, therefore special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59 (2012); see also Burton v. Shinseki, 25 Vet. App. 1(2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). But, again, in the case of Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011), the Court clarified its holding in Lichtenfels, explaining that the evaluation of painful motion as limited motion only applies to the evaluation of arthritis under DC 5003, as mandated by the express language in that provision, and only when limitation of motion is noncompensable under the applicable diagnostic code (here, DC 5201). The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels and DC 5003, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, to reiterate, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id., at 43. And, here, this is not shown to be the case. Also, because there is no X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations, a higher 20 percent rating is not warranted under Diagnostic Codes 5003-5010. In order to meet the criteria for a 20 percent rating under Diagnostic Code 5201, the range of motion of the Veteran's right shoulder must be limited to shoulder level (i.e., to 90 degrees out of the normally possible 180 degrees). His range of motion in his right shoulder, however, does not meet or more closely approximate this level of limitation. There was just a relatively slight decrease in the range of motion on overhead extension in 2009, but otherwise he had normal range of right shoulder motion. Additionally, his findings of range of motion have been normal on all QTC/VA examinations. Therefore, an initial disability rating higher than 10 percent is not warranted based on limitation of motion, indeed, even when considering his pain and painful motion. A higher initial rating is not warranted on the basis of functional loss due to pain or alternatively due to weakness, premature or excess fatigability, incoordination, or pain on movement of the right shoulder. See 38 C.F.R. §§ 4.40, 4.45, 4.59. As observed, his range of motion has been essentially within normal limits at all times it has been tested objectively, so his pain and these other considerations have not had any consequent effect on his range of motion in terms of causing any further restriction, including over and above that shown. This includes no suggestions of additional functional limitations on repetitive-use testing, which is meant to test the functioning of this shoulder during prolonged use. The medical evidence of record does not show functional limitation of the severity needed to show entitlement to a rating higher than 10 percent at any point since the effective date of the grant of service connection, so the Board cannot "stage" this rating under Fenderson, either. Under Diagnostic Code 5203, malunion of the clavicle or scapula, or nonunion without loose movement, of the major or minor extremity warrants a 10 percent rating (or impairment may be rated on the basis of impaired function of a contiguous joint). Nonunion with loose movement, or dislocation, of the clavicle or scapula of the major or minor extremity warrants a 20 percent rating (or impairment may be rated on the basis of impaired function of a contiguous joint). The evidence of record, however, does not show the Veteran is entitled to a higher rating under Diagnostic Code 5203. In this regard, although the evidence of record shows he underwent excision of the distal clavicle, there is no clinical evidence demonstrating that his right clavicle or scapula is dislocated. There also is no clinical evidence of any nonunion or loose movement involved. Rather, the evidence shows his clavicle is relatively stable. Therefore, the criteria for a rating higher than 10 percent are not met under Diagnostic Code 5203. The Board also considered other diagnostic codes that may apply to disability of the shoulder. The Veteran, however, does not have ankylosis (Diagnostic Code 5200) or other impairment of the humerus (Diagnostic Code 5202). Therefore, a higher rating is not available under these codes, either. Ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (quoting from Stedman's Medical Dictionary 87 (25th ed. 1990). See also Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). See, as well, Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th d. 1987)]. Because the Veteran has retained essentially normal range of motion of his right shoulder in all directions, indeed, even despite his complaints of chronic or persistent pain, his shoulder by definition are not ankylosed, to the contrary, far from it. The Board also has considered whether a separate or higher rating is warranted for a linear surgical scar on this shoulder. However, the Veteran's right shoulder scar is not considered in any way disfiguring or the equivalent of painful or unstable scar, thus Diagnostic Codes 7800-7805 do not provide a basis for a higher rating. Indeed, the January 2010 QTC examiner characterized the scar as round, nonlinear, and superficial, measuring 1 cm. x 1 cm. The scar was not painful on examination and had no keloid formation, skin breakdown, or underlying tissue damage. See also March 2013 VA examination report noting similar findings. A separate rating for the surgical scar therefore is not warranted. The Board notes further that the Veteran's chiropractor raised the issue of whether the Veteran has any muscle, nerve, or cervical spine (neck) impairment secondary to his service-connected right shoulder disability. In this respect, in a March 2010 statement, J.L, D.C., of Ledford Chiropractic, surmised the Veteran's right shoulder has muscle damage causing it to droop, and that the drooping puts additional strain on his neck and thoracic muscles. It was noted this additional strain in turn has lead to an increase in headaches and neuralgia in the Veteran's right hand and arm. The chiropractor noted weakness in the Veteran's posture evidenced by the fact that he has started to lean to the right inferior shoulder and his left hip rotates back. Disability that is proximately due to, the result of, or aggravated by a service-connected disability shall be secondarily service connected. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). In light of the chiropractor's statement, among other things, the AMC requested the additional March 2013 VA compensation examination for further medical comment on these possibilities. Concerning the claimed muscle impairment, the March 2013 VA examiner reviewed April 2012 MRI findings and noted the absence of any muscle damage. The VA examiner explained that the drooping of Veteran's right shoulder is an expected residual of his clavicle excision and that, despite this drooping, the power in his right upper girdle musculature is normal. The examiner reiterated that the drooping is due to the lack of skeletal support secondary to excision of the lateral end of the clavicle, and not due to actual muscle injury. In the absence of any evidence of muscle impairment, the examiner concluded that the claimed muscle damage is less likely than not proximately due to, or the result of, the Veteran's service-connected right shoulder disability. The March 2013 VA examiner also explained that there is no nerve damage to the Veteran's shoulder, itself, even despite the slight drooping of the shoulder. The examiner stated that the numbness in the right arm experienced by the Veteran is positional only. The Veteran was advised to be careful about where he places his arm while asleep. The examiner indicated the numbness in the right upper extremity, when it occurs, is physiological and a normal response to the position in which the arm is held while asleep. The examiner indicated there is no evidence that nerve damage will occur after the Veteran's positional episodes. In the absence of any evidence of nerve impairment, the examiner concluded the claimed nerve impairment is less likely than not proximately due to, or the result of, the Veteran's service-connected right shoulder disability. Similarly, the March 2013 VA examiner concluded that the claimed cervical spine disability is less likely than not proximately due to, or the result of, the Veteran's service-connected right shoulder disability. In arriving at this opinion, the examiner stated that examination of the cervical spine was within normal limits and, as discussed, the feeling that he is experiencing in his neck (and arm) is a normal positional response. In weighing the probative value of the competent and credible evidence currently of record, the Board finds that the most probative (meaning competent and credible) medical and other evidence of record indicates the Veteran does not have any muscle, nerve, or cervical spine (neck) impairment secondary to his service-connected right shoulder disability. The Board finds the chiropractor's opinion to be of limited probative value, as he did not cite to any supporting medical evidence and provided little-to-no explanatory rationale. In contrast, the March 2013 VA examiner pointed to April 2012 MRI findings showing no evidence of any muscle damage in the right shoulder, also discussed that the right arm numbness and consequent neck pain felt by the Veteran is in actuality just a normal positional response. Consequently, the preponderance of the probative evidence is against finding that the Veteran has any muscle damage, nerve impairment, and/or cervical spine (neck) disability secondary to his service-connected right shoulder disability. In summary, there is no basis to assign an initial rating higher than 10 percent for the right shoulder disability or a secondary separate rating under the applicable rating criteria. For these reasons and bases discussed, the preponderance of the evidence is against this claim for a higher rating for this right shoulder disability, so the benefit-of-the-doubt rule is inapplicable, and the Board must deny this claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, however, the schedular rating criteria contemplate the extent and severity of the Veteran's right shoulder disability - including to the extent he experiences persistent pain. The Board, then, is not obligated to refer this claim to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) Service for extraschedular consideration. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER The claim for an initial rating higher than 10 percent for the right shoulder disability is denied. REMAND Still further development is necessary prior to adjudicating the remaining claim on appeal for service connection for a right ankle disability. A Veteran is presumed in sound condition when entering service except for defects "noted" when examined and accepted for service. If there was no such notation, then clear and unmistakable evidence that a disability (1) existed prior to service and (2) was not aggravated by service is needed to rebut this presumption of soundness. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1)(2012). Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to ... manifestations, clinical course, and character of the particular injury or disease or residuals thereof." Id. When evaluated for induction into service, examination of the Veteran's lower extremities was found to be normal, so presumably including his right ankle. However, on the medical history report completed at time of induction, he indicated a history of a right knee sprain injury at the age of 17. Additionally, a private treatment note from Dr. S.J.J. shows the Veteran had sought medical treatment for ankle pain in September 1999, about five years prior to entering service. At the time, crepitus and popping in his right ankle were present. X-rays of the ankles were to be scheduled, but there is no indication they were ever taken and there is no X-ray report in the claims file. As the Veteran's induction report does not contain a notation of a right ankle disability, he is presumed sound. But given his reported history of a pre-service right ankle injury and the private medical evidence showing treatment for same, the Board must determine whether the presumption of soundness is rebutted. This presumption is rebuttable if the two prongs mentioned are satisfied. A condition pre-existing acceptance and enrollment must be demonstrated by clear and unmistakable (obvious or manifest) evidence. The Court has held that such an evidentiary standard is an onerous one and that the result must be undebatable. See, e.g., Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Vanerson v. West, 12 Vet. App. 254, 258 (1999). Even when a Veteran provides a history of the pre-service existence of a condition at an entrance examination, the regulations provide that the reported history does not constitute a "notation" of the condition but must be considered together with all of the other evidence. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The Veteran's STRs show he sought treatment for right ankle pain in December 2005 after completing exercise training. Diagnosis was ankle sprain. His remaining STRs are unremarkable for any right ankle complaints, treatment, and/or disability. In light of this, this claim again must be remanded - this time, however, to have a VA physician provide an opinion regarding this threshold preliminary issue of whether a right ankle disability clearly and unmistakably preexisted the Veteran's service and, if it did, whether there also is clear and unmistakable evidence his right ankle disability was not aggravated during or by his service beyond its natural progression. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); and McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran already had VA compensation examinations by QTC Medical Services in April 2007 and January 2010, but this preliminary issue was not considered. Also, regardless of whether his right ankle disability pre-existed his service, an additional VA medical opinion is needed to address the etiology of any current right ankle disability. The January 2010 VA examiner was unable to relate any present right ankle disability to the sprain in service without resorting to speculation because there was no pathology to render a right ankle diagnosis. The Board finds this rationale inadequate, however. Although there was no evidence of a right ankle disability during that January 2010 examination, the record contains post-service evidence of a right ankle condition. In this regard, when the Veteran earlier had his April 2007 QTC examination, he reported pain, weakness, and giving away in his right ankle. And on objective physical examination, there were signs of tenderness and loss of motion was noted. X-rays of the right ankle were negative for abnormality, but the diagnosis was right ankle sprain. In November 2008, the Veteran sought medical treatment from a private physician after injuring his right ankle after running across a parking lot the night before. Examination revealed diffuse swelling, medially and laterally. Assessment was possible ankle sprain versus fracture. A November 2008 private imaging report shows an impression of a possible small avulsion fracture at the tip of the medial malleolus, which could also represent an accessory ossification; soft tissue swelling, and an otherwise normal examination. Also, in December 2008, the Veteran had a consultation regarding his right ankle condition. Examination revealed minimal swelling of this ankle. This ankle was stable on drawer testing. Assessment was "23 year-old with ankle sprain." The Court has held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of the claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, any etiology opinion concerning the Veteran's right ankle disability must consider the right ankle diagnoses rendered since the filing of this claim, even if now resolved. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Forward the claims file to the physician that performed the January 2010 QTC examination, if still available, for a supplemental medical opinion. If the requested examiner is no longer available, or if this or some additionally designated examiner determines another examination would be helpful, the Veteran should be scheduled for another C&P examination. The claims file, including a complete copy of this remand, should be made available to, and reviewed by, the examiner. After a re-review of the claims file, the examiner is asked to respond to the following: A. Is it clear and unmistakable (obvious, manifest, or undebatable) that the Veteran had a right ankle disability that pre-existed his active military service? Reconcile the opinion with his reported history of right ankle injury at the age of 17, and the September 1999 treatment note from Dr. S.J.J, showing right ankle treatment before entering service. B. If so, is it also clear and unmistakable (obvious, manifest, or undebatable) that his preexisting right ankle disability was not aggravated during or by his active military service, that is, above and beyond the condition's natural progression? Reconcile the opinion with the STRs, including the December 2005 right ankle sprain. C. If there instead is not the required clear and unmistakable evidence of pre-existing right ankle disability, what is the alternative likelihood (very likely, as likely as not, or unlikely) that any post-service right ankle disability began in service, is related to the ankle sprain in service during physical training, or is otherwise related or attributable to the Veteran's active military service ? It is imperative the examiner discuss the underlying rationale for all conclusions or opinions expressed, if necessary citing to specific evidence in the file. Care must be taken when responding to address the differing standards of proof that have been italicized. 2. Then readjudicate this claim for service connection for a right ankle disability, including as a residual of a sprain, in light of this and all additional evidence. This additional consideration must include determining whether this claim should be adjudicated on the basis of aggravation of a pre-existing disability versus direct incurrence of this claimed condition in service. If this claim is not granted to the Veteran's satisfaction, send him another SSOC and give him opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs