Citation Nr: 1322139 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-10 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating higher than 20 percent for the service-connected left shoulder disability. 2. Entitlement to an initial rating higher than 10 percent for the service-connected calluses of the bilateral feet. 3. Entitlement to a temporary total evaluation for convalescence following surgery performed on August 11, 2009. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in April 2008, May 2008 and March 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2013 the Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO ("Travel Board" hearing). A transcript of the hearing is associated with Virtual VA. The Board's decision on the issue of evaluation of the service-connected left shoulder disability is set forth below. The issues of initial evaluation of disability of the bilateral feet and entitlement to temporary total evaluation are addressed in the Remand that follows the Order section of the Decision below. FINDINGS OF FACT 1. The Veteran is right-handed. 2. Throughout the period under review the service-connected left shoulder disability has been manifested by remote, well-healed fracture with range of motion of the arm to shoulder level or better with pain on motion; the Veteran has not shown ankylosis, flail joint, flail shoulder or fibrous union of the humerus. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for the left shoulder disability are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5201, 5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The VA is required to 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 VA is required to notify a 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, the 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, the VA will attempt to obtain on behalf of the claimant. In addition, 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 be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In this case, the Veteran was sent a letter in March 2008 advising him of the elements to establish entitlement to an increased rating, and he had ample opportunity to respond prior to the April 2008 rating decision on appeal. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009 (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The record also reflects that service treatment records (STRs) and all available post-service medical evidence identified by the Veteran has been obtained. The Veteran has been afforded appropriate medical examinations in support of his claim for increased evaluation for the service-connected left shoulder disability, most recently in April 2012. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of this appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield, 499 F.3d 1317. Therefore, the Board finds that duties to notify and assist have been satisfied and will proceed to the merits of the issue of evaluation of the service-connected left shoulder disability. Applicable Legal Principles Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The Veteran's left shoulder disability is characterized as degenerative joint disease (DJD) status post left clavicle fracture. Traumatic DJD (arthritis) is rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010, which defers to the criteria for degenerative arthritis under DC 5003. DC 5003 in turn provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When 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 major joint or group of joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) to DC 5003 provides that the 20 pct and 10 pct ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Where medical evidence shows claimant has arthritis, and where the diagnostic code applicable to the disability is not based on limitation of motion, such as DC 5203 (impairment of clavicle or scapula), a separate rating may be assigned if there is additional disability due to limitation of motion. VAOPGCPREC 23-97 (July 1, 1997); see also Hicks v. West, 8 Vet. App. 417 (1995). Painful motion of a major joint or groups 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 DC 5003, even though there is no actual limitation of motion. VAOPGCPREC 09-98 (August 14, 1998), citing Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Disabilities of the shoulder are rated under the provisions of 38 C.F.R. § 4.71a, DCs 5200 through 5203. Limitation of motion of the arm is rated under the provisions of DC 5201, which distinguishes between the major (dominant) and minor (non-dominant) arm. The Veteran is shown by medical examination to be right-handed, so the criteria for the minor appendage apply. A rating of 30 percent is assigned for limitation of motion to 25 degrees or less from the side. Otherwise, a rating of 20 percent is assigned for limitation of motion to shoulder level or to midway between the side and shoulder level. For reference, normal range of motion (ROM) of the shoulder is forward flexion 0-180 degrees, abduction 0-180 degrees, internal rotation 0-90 degrees and external rotation 0-90 degrees. 38 C.F.R. § 4.71a, Plate I. Also applicable is DC 5203 (impairment of clavicle or scapula). A rating of 20 percent is the maximum schedular rating available under this DC for the non-dominant arm. When evaluating joint disabilities rated on the basis of 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. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59 cited above 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). In any increased rating claim, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, id. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2011) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities under review. Evidence and Analysis The Veteran's claim for increased rating was received in October 2007. The Board will consider evidence of severity from October 2006, one year prior to receipt of the claim. See 38 C.F.R. § 3.400. The Veteran had a VA examination of the joints in October 2006. The Veteran reported having fractured his left clavicle in service while playing football. He complained of constant left shoulder pain, reaching from the left elbow through the left shoulder and extending to the base of the neck. The Veteran stated he had not been employed for the past 3-4 years; he was previously employed as a fork lift operator but was unable to continue in that position due to pain and weakness in the left arm. On examination the Veteran was seen to move with ease, including getting into and out of a chair and the examining table. The site of the left shoulder fracture had a step-off at the fracture site (middle third of the left clavicle) indicating persistent displacement of the fracture. There was tenderness in the area of the fracture but the fracture appeared to be stable, clinically healed and without abnormal motion. There was tenderness at the acromioclavicular (AC) joint with all ranges of motion. ROM of the left shoulder was 0-150 degrees abduction and forward flexion, 0-90 degrees internal rotation and 0-30 degrees external rotation. Reach across to the opposite shoulder was pain-free and there was no sign of rotator cuff pathology. Repetition caused no additional loss of motion due to pain, weakness, fatigue or lack of endurance. The examiner's diagnosis was fracture of the left clavicle, healed but with persistent pain. Later in October 2006 the Veteran presented to the VA primary care clinic (PCC) complaining of increased pain and weakness in the left shoulder over the past four months. Clinical observation noted the Veteran was not able to abduct the left upper extremity (LUE). The Veteran was referred to physical therapy (PT) for evaluation and referred for electromyography (EMG) and nerve conduction velocity (NCV) to rule out nerve damage. Subsequent EMG/NCV study in November 2006 showed no evidence of polyneuropathy, cervical radiculopathy or suprascapular neuropathy. The Veteran had VA magnetic resonance imaging (MRI) study of the left shoulder in September 2007. The rotator cuff tendons were normal. The impression was very mild AC joint degenerative change; otherwise, unremarkable MRI. The Veteran presented to the VA orthopedic surgery clinic in March 2008 for follow-up of his left shoulder pain, reportedly much worse with activity and better with rest. The Veteran reported being able to sleep through the night without pain but complained of "tremendous pain" on rising. The Veteran reported that medication provided very little relief. The clinician noted that recent MRI had been performed of the cervical spine to rule out radiculopathy, which had shown mild degenerative changes throughout the neck, with multilevel mild disc bulges and foraminal stenosis and canal narrowing. Physical examination showed exquisite tenderness to palpation; the Veteran winced at very light touch and was reluctant to move very much secondary to pain. The examiner stated the Veteran's pain was out of proportion to any of the radiographic findings. The examiner's impression was left shoulder pain status post distant clavicle fracture. The examiner noted that the Veteran appeared to present a complex regional pain syndrome picture, given that the only evident clinical pathology was very mild AC joint arthritis with mild shortening of the clavicle. The plan was to follow up to determine if there was an impingement component to the Veteran's pain. The Veteran had a VA examination in April 2008, performed by the same examiner who had examined the Veteran in October 2006. The Veteran reported his pain had generally increased since the previous examination. The Veteran complained of continued pain in the left clavicle and shoulder area, constant but aggravated by strenuous activity; he reported a 45 percent reduction in function during flare-ups. Physical examination showed ROM of the left shoulder to be slightly decreased from the previous examination in October 2006; currently the Veteran had flexion and abduction to approximately 140 degrees with pain at 90 degrees, internal rotation to 90 degrees and external rotation to 30 degrees. There seemed to be additional pain with impingement testing but this was uncertain. There was no instability of the shoulder joint and no further limitation of motion due to pain, weakness, fatigability or incoordination following repetitive use. X-ray showed mild diastasis of the AC articulation but the glenohumeral articulation was intact. The examiner diagnosed old healed fracture of the left clavicle, still symptomatic. The Veteran was evaluated by the VA pain clinic in May 2008 for his reported LUE pain. The Veteran described pain and numbness down the arm and to the fingers; he stated he had problems falling asleep and staying asleep due to pain. Current X-ray showed intact AC joint, soft tissues unremarkable, and impression of mid-clavicle fracture that was clinically healed and unchanged from the previous study. Current examination showed the Veteran to use protective posturing with LUE flexed and held across his lap. Motor strength of the LUE was 4+/5 with reduced grip strength; sensory showed impairment of the LUE to light touch and pinprick as well as AC joint area allodynia and hyperesthesia over the left shoulder girdle. ROM was to 90 degrees. There was marked muscle tenderness in the left cervical and middle trapezius about the left shoulder girdle. The clinical impression was LUE pain status post fractured clavicle in 1981 and 6-7 month history of pain radiating down the LUE to the fingers; rule out complex regional pain syndrome type I (CRPS I) with sensorimotor polyneuropathy (SMP) versus radiculopathy. The Veteran was discharged from the chronic pain clinic because he was taking medications that could help with his neuropathic pain and somatic pain. The Veteran was treated at the VA pain clinic in July 2009 after having had two cervical epidural steroid injections (ESIs). The first injection provided significant pain relief but the second injection less so, and the Veteran was not interested in further injections. The clinical impression was LUE pain status post fractured clavicle in 1981 and cervical spondylosis. The Veteran had a VA examination of the arm and shoulder in April 2012 in which he complained of pain and difficulty pulling on clothing over his head or working overhead; he also stated it affected the strength in his LUE and caused him to drop items. He described flare-ups every six weeks and lasting about a day. The examination in April 2012 showed the Veteran to be right-handed. ROM of the left shoulder was flexion and abduction to 110 degrees with pain at 100 degrees; there was no additional limitation in ROM following repetitive use but there was additional functional impairment in terms of less movement than usual, weakened movement and pain on movement. Muscle strength of the left shoulder was 4/5, compared to 5/5 for the right shoulder. There was no ankylosis of the shoulder joint, and impingement test was negative. "Empty can" test did not show rotator cuff pathology but the lift-off subscapularis test showed weakness indicative of possible subscapularis tendinopathy or tear. The cross-body test was negative for indication of AC joint pathology. There was no indication of recurrent dislocation or subluxation of the shoulder joint, and the AC joint was not tender to palpation. X-ray did not show degenerative or traumatic arthritis, but rather showed only an old healed fracture of the mid-clavicle with no other significant osseous abnormalities and no changes since the previous study in January 2009. The examiner's diagnosis was fracture of the left clavicle and malunion of the clavicle. The examiner stated the shoulder condition did not impact the Veteran's ability to work. The Veteran testified before the Board in May 2013 that he had a neuropathy of the LUE that caused him to drop items; the Veteran's sister sometimes had to help him bathe and dress because he was unable to button his shirt. The Veteran's sister also had to help him with household chores because he was unable to push a vacuum. The Veteran's left shoulder pain made it difficult for him to sleep at night. Review of the file shows that the Veteran has had ROM of the arm consistently 90 degrees or better, even allowing for pain and for additional limitation during flare-ups as reported by the Veteran. Accordingly, the criteria for a 30 percent rating for limitation of motion under the provisions of DC 5201 are not approximated. In fact, the Veteran's ROM during the examinations noted above has been squarely within the criteria for the currently-assigned 20 percent rating. The Veteran has been diagnosed with arthritis of the shoulder and thus is entitled to minimum rating for loss of flexion of the joint. Burton, 25 Vet. App. 1; Schafrath, 1 Vet. App. 589, 592. The schedular minimum under DC 5201 is 20 percent, so the Veteran's current 20 percent rating satisfies the requirement. His current rating also satisfies the minimum 10 percent rating for painful arthritis specified in Lichtenfels, 1 Vet. App. 484. Historically, the RO has rated the disability under the provisions of DC 5203, but the currently-assigned 20 percent rating is the highest rating provided under that code. The Board has considered whether alternative rating under another applicable DC would be advantageous to the Veteran. Schafrath, 1 Vet. App. 589, 593. In this case, a rating higher than 20 percent is potentially available for the non-dominant arm under DC 5200 (ankylosis of the scapulohumeral articulation), but the Veteran is not ankylosed so that DC does not apply. Similarly, a rating higher than 20 percent is potentially available for the non-dominant arm under DC 5202 for loss of head of the humerus (flail shoulder), nonunion of the humerus (flail joint) or fibrous union of the humerus, but there is no indication that any of these conditions apply. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza, 7 Vet. App. 498. Accordingly, in addition to the medical evidence cited above the Board has carefully considered the lay evidence offered by the Veteran in the form of his testimony before the Board, his correspondence to VA, and his statements to various medical examiners and providers. The Veteran's lay evidence asserts that his left shoulder fracture during service is manifested by current residuals of severe pain (which radiates from the neck down to the fingers), as well as functional impairment caused by weakness in the fingers and loss of grip strength in the hand. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. 498. The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, while the Veteran may be considered credible in reporting symptoms such as severe pain, weakness and loss of grip strength, he is not shown to be competent or credible in associating those symptoms with his remote, healed clavicle fracture. The medical evidence of record documents the Veteran has cervical radiculopathy and CRPS I, both of which are consistent with the symptoms of which the Veteran complains and neither of which is associated with a healed clavicle fracture. Numerous examinations and clinical observations have documented that the Veteran's complaints are out of proportion to the clinical findings (see e.g. VA orthopedic surgery clinic note in March 2008 and VA examination in April 2012). Given the number of different pathologies involved, the question of which pathology is responsible for the Veteran's reported pain and neuropathy is not within the competence of a layperson. Kahana, 24 Vet. App. 428 In that regard, functional loss due to pain or weakness must be supported by adequate pathology and evidenced by the visible behavior of the claimant; see 38 C.F.R. § 4.40. To the degree that medical evidence of record confirms tenderness of the clavicle on palpation, as evidenced by the visible behavior of the Veteran, such pain is adequately compensated by a 20 percent rating. The Board has considered whether "staged ratings" are for application, per Hart, 21 Vet. App. 505. However, the Veteran is not shown to have satisfied the criteria for a rating higher than 20 percent during any discrete date range during the period under review, so "staged rating" is not appropriate. The Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the service-connected shoulder disability (limitation of motion due to pain and associated weakness, fatigability, lack of endurance and incoordination) are specifically contemplated by the schedular criteria as amplified by DeLuca and Burton. The Veteran has asserted sleep disturbance due to pain, which is not specifically contemplated by the rating schedule, but the Board has found that the Veteran's reported pain is due to causes other than the service-connected shoulder disability. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. Finally, the United States Court of Appeals for Veterans Claims (Court) has held that a request for a total disability rating for individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In this case, the Veteran has not asserted, and the evidence of record does not suggest, that he is unemployable solely due to the left shoulder disability. The Board accordingly finds that a claim for TDIU is not raised by this appeal. In sum, the Board has found the criteria for a rating higher than 20 percent for the service-connected left shoulder disability are not met. Accordingly, the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER A rating higher than 20 percent for the left shoulder disability is denied. REMAND The Board finds that additional development is required before the issues of initial evaluation of the disability of the bilateral feet and entitlement to temporary total evaluation can be adjudicated. The Veteran is service-connected for calluses of both feet. However, he has been diagnosed during the course of the period under review with fibroma of the right foot; the medical evidence of record does not show if this fibroma is etiologically related to the service-connected calluses. Similarly, the Veteran underwent surgery in August 2009 for excision of a keratoma on the left third metatarsal ("keratoma" being synonymous with "callus" and therefore service-connected) but during surgery he underwent a dorsiflexion pitch osteotomy on the same joint to correct a plantar-grade direction of the metatarsal head; there is no indication whether the defect was etiologically related to the service-connected callus versus a coincident but unrelated condition. (The RO denied temporary total evaluation based on a finding that the keratoma excision was performed to correct a service-connected disorder but the osteotomy was not. However, the Board is precluded from differentiating between the symptomology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. See Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Given that the keratoma excision and the osteotomy were performed on the same joint, the Board finds that a medical opinion is required to determine whether the osteotomy was in fact necessitated by the service-connected callus disability). The VA clinical treatment records that are associated with the file terminate in April 2010. The most recent VA examination in April 2012 cited VA clinical treatment records from 2011 that appear to document increased severity of symptoms, and the Veteran testified before the Board that he has been treated regularly at the VA podiatry clinic. Accordingly, VA treatment records since April 2010 should be obtained and associated with the file or with Virtual VA/VBMS. Accordingly, the case is REMANDED to the RO, via the Appeals Management Agency (AMC), for the following action: 1. The RO/AMC should obtain the appropriate outstanding VA treatment records pertaining to the Veteran's service-connected foot disability and associate those records with the claims file or with Virtual VA/VBMS. 2. After any pertinent, outstanding records have been obtained, the Veteran should be afforded an examination by a VA examiner qualified to assess the severity of the Veteran's service-connected calluses of the feet. The claims folder must be made available to and reviewed by the examiner, and any indicated diagnostic studies should be performed. The examiner is specifically requested to identify all diagnosed disorders of the feet that are present (e.g., fibromas or deformities) and indicate whether such conditions are etiologically related to the Veteran's calluses. In addition to dictating objective test results in terms conforming to the rating schedule, the examiner's report should fully describe the effects of the Veteran's disability on his occupational functioning and daily activities. The examiner is asked to provide an opinion as to whether the dorsiflexory pitch osteotomy that was performed by VA on August 11, 2009, was necessitated by the service-connected callus disability versus a concurrent but unrelated condition. The examiner should provide a complete rationale for all opinions provided, and the RO/AMC should ensure that the examiner provides all information required for rating purposes. 3. The RO/AMC should also undertake any other development it determines to be warranted. 4. Then, the RO/AMC should readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO/AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant 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). ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs