Citation Nr: 1326945 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 08-34 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for ulcerative colitis prior to October 27, 2011. 2. Entitlement to a staged initial evaluation in excess of 30 percent for ulcerative colitis from October 27, 2011. 3. Entitlement to a compensable initial evaluation for residuals of a left femur fracture, status post open reduction and internal fixation (hereinafter, a left femur disability.) 4. Entitlement to an initial evaluation in excess of 10 percent for residuals of a fractured left forearm, status post open reduction with internal fixation (hereinafter, a left forearm disability). 5. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right shoulder and/or left forearm disabilities, or in the alternative, claimed as due to undiagnosed illness. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran had active duty from February 1987 to February 2007, to include service in Southwest Asia. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. The Veteran testified at a Travel Board hearing which was chaired by a Veterans Law Judge (VLJ) at the Waco RO in March 2011. A transcript of the hearing has been associated with the Veteran's VA claims folder. These matters, among others, were previously remanded by the Board in September 2011 for further procedural and evidentiary development. As will be further discussed below, the Board's September 2011 remand directives were substantially completed, and the Veteran's claims were subsequently returned to the Board. In a September 2012 rating decision, the VA Appeals Management Center (AMC) increased the evaluation assigned for the Veteran's ulcerative colitis from 10 percent to 30 percent, effective from October 27, 2011. Accordingly, the Veteran's claim has been bifurcated to reflect the "staged" ratings created by this award. Fenderson v. West, 12 Vet. App. 119 (1999). As this increase does not represent a full grant of the benefits sought, the Veteran's appeal is not abrogated and the matter remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran was advised in a November 2012 letter that he was entitled to an additional hearing, as the Board no longer employed the Veterans Law Judge who conducted the March 2011 hearing. 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2012). In a December 2012 response, the Veteran indicated that he did not wish to participate in another hearing before a Board member, and thus, the Board will proceed to adjudicate his claims based on the evidence of record. In March 2013, the Board remanded the issues on appeal herein, and dismissed his claim for a compensable initial evaluation for bilateral carpal tunnel syndrome based on his oral withdrawal of such at the March 2011 hearing. As will be further discussed below, the Board's March 2013 remand directives have been substantially completed, and the Veteran's claims have been returned to the Board. With regard to the Veteran's claims for increased initial evaluations, the United States Court of Appeals for Veterans Claims (the Court) has indicated that a distinction must be made between a Veteran's dissatisfaction with an initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later filed claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as these issues were placed in appellate status by a notice of disagreement expressing dissatisfaction with an original rating assignment, the Board has characterized the rating issues on appeal as claims for higher initial evaluations of original awards. Analysis of these issues therefore requires consideration of the ratings to be assigned effective from the date of award of service connection for the claims. During the pendency of this case, the Veteran also perfected appeals to the Board concerning claims to establish service connection for a low back disability, a respiratory disability, and bilateral knee disability. In rating decisions by the RO and AMC dated in June 2009, September 2012, and May 2013, service connection for these disabilities was established, and thus, the Veteran's appeal as to those issues has become moot. The Veteran has not disagreed with the assigned evaluations or the effective dates. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, those matters have been resolved and are not in appellate status. The issues of (1) entitlement to an initial evaluation in excess of 10 percent for residuals of a fractured left forearm, status post open reduction with internal fixation, and (2) entitlement to service connection for a left shoulder disability, to include as secondary to service-connected right shoulder and/or left forearm disabilities, or in the alternative, claimed as due to undiagnosed illness, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. Prior to October 27, 2011, the Veteran's ulcerative colitis was productive of complaints of crampy abdominal pain, diarrhea and constipation; objectively, the evidence showed alternating diarrhea and constipation, with no signs of malnutrition, health only fair during remissions, anemia, general debility or serious complication such as liver abscess. 2. From October 27, 2011, the Veteran's ulcerative colitis is productive of complaints of crampy abdominal pain, diarrhea and constipation; objectively, the evidence shows alternating diarrhea and constipation, with no signs of malnutrition, health only fair during remissions, anemia, general debility or serious complication such as liver abscess. 3. Throughout the appeal period, the Veteran's residuals of a left femur fracture, status post open reduction and internal fixation, has been manifested by negative X-ray studies and a noncompensable range of motion of the left hip with pain, causing some functional limitation to the joint. CONCLUSIONS OF LAW 1. Prior to October 27, 2011, the criteria for a 30 percent initial evaluation, but no more, for ulcerative colitis are met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code 7323 (2012). 3. From October 27, 2011, the criteria for an initial staged evaluation in excess of 30 percent for ulcerative colitis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code 7323 (2012). 3. The criteria for a 10 percent initial evaluation, but no more, for residuals of a left femur fracture, status post open reduction and internal fixation, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5251 - 5253 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within the VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. In VA correspondence dated in October 2006, the Veteran was informed of what evidence was required to substantiate claims to establish direct service connection and of his and VA's respective duties for obtaining evidence. Also, this notice informed the Veteran of the criteria for consideration in assigning an effective date and/or disability rating in the event of award of the benefit sought. In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial adjudication of the claim. Because VCAA notice in this case was completed prior to the initial of the Veteran's claims, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. The Veteran's claims for increased initial evaluations arise from his disagreement with the initial evaluations assigned following the grants of his service connection claims. Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and SOC described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. Section 3.159(b)(3) (2012). The RO has provided the Veteran the required SOC discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations. With regard to the duty to assist, the claims file contains the Veteran's service treatment records, statements of the Veteran, and VA examination reports. Also, all identified private treatment records have been obtained and associated with the claims file. In particular, as instructed by the Board in the September 2011 and March 2013 remands, the AMC obtained updated VA treatment records on two occasions and associated such with the record. In this regard, the Board's prior remand instructions have been substantially completed with respect to the Veteran's claims decided herein. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board has carefully reviewed the Veteran's statements and concludes that there has been no identification of further available evidence not already of record for which VA has a duty to obtain. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. VA examinations with respect to the issues on appeal were obtained in November 2007, April 2008, March 2010, and October 2011 with an addendum in April 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted by the Board in the September 2011 and March 2013 remands, there were deficiencies in the November 2007, April 2008 and October 2011 VA examinations which rendered them inadequate for the purpose of adjudicating some or all of the Veteran's claims. Accordingly, the Board directed in the September 2011 and March 2013 remands that additional VA examinations and opinions addressing specific medical issues be obtained. The Board finds that the April 2013 VA addendum, when viewed with the November 2007, April 2008 and October 2011 VA examinations, contains findings necessary to evaluate the disability under the applicable diagnostic codes rating criteria. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). To the extent that the Board's prior remands directed that the Veteran should be provided adequate VA examinations and opinions, these directives have been substantially completed. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during a March 2011 Board hearing, the conducting VLJ fully stated the matters on appeal, to include the issues decided herein. The Veteran was assisted at the hearing by a representative of the Texas Veterans Commission, who, along with the VLJ, asked questions to ascertain the extent of any potential pertinent outstanding evidence. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran. The Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for increased initial evaluations. Neither the Veteran nor his representative has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Increased evaluations Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. This appeal originates from a rating decision that granted service connection and assigned the initial evaluations. Accordingly, "staged" ratings may be assigned, if warranted by the evidence. Fenderson v. West, 12 Vet. App. 119 (1999). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim. Ulcerative colitis Prior to the Veteran's separation from service, he filed a claim to establish service connection for ulcerative colitis. In the November 2007 rating decision, the RO established service connection for this disability, effective from February 28, 2007 - the day after the Veteran's separation from service. The Veteran expressed disagreement with the assigned evaluation, contending that his symptomatology warranted a higher evaluation. As noted in the Introduction, the Veteran's claim for an increased initial evaluation was partially granted by the AMC in the September 2012 rating decision; a 30 percent evaluation was assigned, effective from October 27, 2011. The Veteran's claim has been bifurcated to reflect the "staged" initial evaluation, and the Board will separately address the stages created. As noted by the Board in the March 2013 remand, in addition to ulcerative colitis, the Veteran was diagnosed with inflammatory bowel disease in December 2011. (See a December 2011 pathology report from Dr. Schmiege.) The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Accordingly, the Board sought an opinion concerning whether it was possible to differentiate between the gastrointestinal symptoms attributable to the Veteran's ulcerative colitis from the manifestations of his non-service connection inflammatory bowel disease. In an April 2013 opinion, a VA clinician stated that ulcerative colitis is a type of inflammatory bowel disease, and thus, all gastrointestinal symptoms were secondary to the Veteran's service-connected disability. In light of this opinion, the Board will attribute the Veteran's symptoms to ulcerative colitis throughout the entirety of the appeal period. Prior to October 27, 2011 As service connection has been established for ulcerative colitis from February 28, 2007, the rating period on appeal for the first stage of the Veteran's initial evaluation for this disability is from February 28, 2007, to October 26, 2011. 38 C.F.R. § 3.400(o)(2) (2012). However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the history of a disability is for consideration in rating a disability. The Veteran is currently assigned a 10 percent evaluation for ulcerative colitis from February 28, 2007, to October 26, 2011, under the criteria of Diagnostic Code 7323, pertaining to ulcerative colitis. Diagnostic Code 7323 provides for a 10 percent evaluation for moderate ulcerative colitis with infrequent exacerbations. A 30 percent evaluation requires moderately severe ulcerative colitis with frequent exacerbations. A 60 percent evaluation is warranted for severe ulcerative colitis with numerous attacks a year and malnutrition and health only fair during remissions. A 100 percent evaluation is warranted for pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility or with serious complication as liver abscess. 38 C.F.R. § 4.114, Diagnostic Code 7323 (2012). In sum, for an increased initial evaluation to be assigned prior to October 27, 2011, the evidence must show that the Veteran's ulcerative colitis was manifested by, at least, moderately severe ulcerative colitis with frequent exacerbations. The November 2007 VA examination report reflects the Veteran managed the symptoms associated with his ulcerative colitis with daily medication (Asacol) supplemented with one-week regiments of oral steroids approximately five times per year. The Veteran reported chronic constipation, which he treated with a bulking agent, and the examiner noted that the Veteran had not received any transfusions as a result of the disease, and no signs of malnutrition were reported or observed. At the time of the November 2007 VA examination, the Veteran was working as a mechanic, and his ulcerative colitis had not affected his ability to maintain employment. The Veteran was provided another VA examination in April 2008, and this report reflects his assertions of experiencing six to eight loose stools, daily. The Veteran reported abdominal swelling, diarrhea, and hemorrhoids, but denied fecal incontinence, stating that his prescription medication (Asacol) prevented such. The examiner noted that the Veteran's ulcerative colitis was intermittent, with remissions. No signs of malnutrition were reported or observed. At the time of the April 2008 VA examination, the Veteran was not working due to surgery on his left arm. The Veteran participated in a Persian Gulf Registry examination in March 2010. The examination report reflects the Veteran's reports of six to eight loose stools per day with some bright red blood in his rectum. The Veteran reported two prescribed medications, diet control, and intermittent prednisone for symptom management, and he denied hepatitis and hematemesis. The VA examination report reflects that he was employed in "tax preparation," but the extent of his employment (full-time or part-time) was not addressed. At the March 2011 hearing, the Veteran reported experiencing alternative constipation and diarrhea with urgency, stomach pain, and abdominal bloating caused by his medication. The Veteran testified that he experiences symptoms of ulcerative colitis on a daily basis which affect all aspects of his life, to include, driving, shopping, and dating. At the time of the March 2011 hearing, the Veteran reported that he was a full-time student as well as a "tax professional," although the extent of his employment (full-time or part-time) was not addressed. The Board has also reviewed the Veteran's VA treatment records for the time period under consideration, and the evidence within, pertinent to his ulcerative colitis, is congruent with the symptomatology reported in the VA examinations and at the March 2011 hearing. In sum, the Veteran is a well-nourished person who experiences multiple loose stools per day, and he manages the disease's symptoms with daily medications. There is no other evidence concerning the Veteran's symptomatology associated with his ulcerative colitis during the period under consideration (from February 28, 2007, to October 26, 2011). After reviewing the evidence of record for the time period under consideration, the Board finds that the Veteran's disability picture from February 28, 2007, to October 26, 2011, most closely approximates the criteria for a 30 percent evaluation, but no more, under Diagnostic Code 7323. The Board concludes that, during this time period, the Veteran's ulcerative colitis and associated symptoms were moderately severe with frequent exacerbations. As noted above, even with daily medications for management of symptoms, the Veteran experienced multiple loose stools with urgency, affecting most aspects of his daily living. The Board has considered whether an even higher initial evaluation is warranted during this period; however, the evidence of record does not approximate the criteria for a higher evaluation under any applicable Diagnostic Code. Specifically, as to the criteria for a 60 percent or higher evaluation under Diagnostic Code 7323, there is no evidence of malnutrition (marked or otherwise), health only fair during remissions, anemia, general debility, or serious complication as liver abscess, from February 28, 2007, to October 26, 2011. The Board has also considered the applicability of other Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, an initial evaluation in excess of 30 percent prior to October 27, 2011, is not warranted. Specifically, the although there are Diagnostic Codes pertinent to the digestive system that allow for an evaluation in excess of 30 percent, they may not be applied because the Veteran's disability and associated manifestations do not include resection of the small or large intestine (Diagnostic Codes 7328 and 7329, respectively), intestinal fistulas (Diagnostic Code 7330), tuberculous peritonitis (Diagnostic Code 7331), impairment of sphincter control of the rectum or anus (Diagnostic Code 7332), stricture of the rectum or anus (Diagnostic Code 7333), rectal prolapse (Diagnostic Code 7334), or anal fistula (Diagnostic Code 7335). In sum, the criteria for a 30 percent initial evaluation, but no more, are met prior to October 27, 2011. The Board will address the propriety of an extraschedular evaluation and the applicability of the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), at the conclusion of the analyses of all of the Veteran's claims for increased initial evaluations. From October 27, 2011 The Veteran is currently assigned a 30 percent evaluation for ulcerative colitis from October 27, 2011, to the present under the criteria of Diagnostic Code 7323, pertaining to ulcerative colitis. In sum, for an increased initial evaluation to be assigned from October 27, 2011, to the present, the evidence must show that the Veteran's ulcerative colitis is severe, with numerous attacks a year, and is manifested by malnutrition (marked or otherwise), health only fair during remissions, anemia, general debility, or serious complication as liver abscess. 38 C.F.R. § 4.114, Diagnostic Code 7323 (2012). After reviewing the evidence of record, the Board finds that the Veteran's disability picture is appropriately reflected by the 30 percent initial evaluation throughout the time period under consideration and that a higher rating is not warranted, as discussed below. As discussed above, a December 2011 pathology report from Dr. Schmiege reflects findings of ulcerative colitis, an inflammatory bowel disease. This report also rules out a diagnosis of Crohn's disease. Although no symptomatology associated with this disease was reported in the pathology report, the clinician noted that the Veteran's colitis was mild in appearance. The October 2011 VA examination report shows the Veteran's complaints of abdominal cramping and diarrhea "once or twice" per month despite daily medication. He denied constipation, abdominal distention, anemia, nausea and vomiting. Bowel disturbances with abdominal distress were noted to be "frequent," but there were no signs of weight loss, malnutrition, health only fair during remissions, anemia, general debility, or serious complication as liver abscess. Although the Veteran reported that the sudden onset of symptoms attributable to his ulcerative colitis caused "occasion[al] problems" with his work as a security guard, there was no evidence that this disease prevented him from maintaining this employment. There is no other evidence concerning the Veteran's symptomatology associated with his ulcerative colitis during the period under consideration (from October 27, 2011, to the present). After reviewing the evidence of record for the time period under consideration, the Board finds that the Veteran's disability picture from October 27, 2011, most closely approximates the criteria for a 30 percent evaluation, but no more, under Diagnostic Code 7323. The Board concludes that, during this time period, the Veteran's ulcerative colitis and associated symptoms were moderately severe with frequent exacerbations. As noted above, even with daily medications for management of symptoms, the Veteran experienced multiple loose stools with urgency. The evidence of record does not approximate the criteria for a higher evaluation under any applicable Diagnostic Code. Specifically, the criteria for a 60 percent evaluation under Diagnostic Code 7323, as there is no evidence of malnutrition (marked or otherwise), health only fair during remissions, anemia, general debility, serious complication as liver abscess, from October 27, 2011, to the present. The Board has also considered the applicability of other Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, an initial evaluation in excess of 30 percent from October 27, 2011, to the present, is not warranted. Specifically, the although there are Diagnostic Codes pertinent to the digestive system that allow for an evaluation in excess of 30 percent, they may not be applied because the Veteran's disability and associated manifestations do not include resection of the small or large intestine (Diagnostic Codes 7328 and 7329, respectively), intestinal fistulas (Diagnostic Code 7330), tuberculous peritonitis (Diagnostic Code 7331), impairment of sphincter control of the rectum or anus (Diagnostic Code 7332), stricture of the rectum or anus (Diagnostic Code 7333), rectal prolapse (Diagnostic Code 7334), or anal fistula (Diagnostic Code 7335). In sum, the criteria for an initial evaluation in excess of 30 percent are not met from October 27, 2011, to the present. The Board will address the propriety of an extraschedular evaluation and the applicability of the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), at the conclusion of the analyses of all of the Veteran's claims for increased initial evaluations. Left femur disability Prior to the Veteran's separation from service, he filed a claim to establish service connection for residuals of a fractured left femur which occurred during his service. In the November 2007 rating decision, the RO established service connection for this disability, effective from February 28, 2007 - the day after the Veteran's separation from service. The Veteran expressed disagreement with the assigned evaluation, contending that his symptomatology warranted a higher evaluation. As service connection has been established for a left femur disability from February 28, 2007, the rating period on appeal for the Veteran's disability is from that date to the present. 38 C.F.R. § 3.400(o)(2) (2012). Although Diagnostic Code 5255 does not specifically provide for the assignment of a noncompensable evaluation, VA regulations instruct that such an evaluation is proper where requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). In accordance with 38 C.F.R. §§ 4.1 and 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the history of a disability is for consideration in rating a disability. The Veteran is currently assigned a noncompensable (zero percent) evaluation for his service-connected left femur disability from February 28, 2007, to the present under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5255, pertaining to impairment of the femur. Under Diagnostic Code 5255, disability due to malunion of the femur with slight knee or hip disability warrants a 10 percent rating. A 20 percent rating is warranted where there is malunion of the femur with moderate knee or hip disability. A 30 percent rating is warranted where there is malunion of the femur with marked knee or hip disability. Diagnostic Code 5255 also provides for a 60 percent rating where the evidence demonstrates impairment due to fracture of the surgical neck of the femur with false joint. A 60 percent rating may also be assigned for nonunion of the femur, without loose motion and with weightbearing preserved with the aid of a supportive brace. An 80 percent rating is warranted for fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture). Words such as "moderate" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). The evidence reflects that the Veteran fractured his left femur as the result of an in-service skiing accident in 1995. Thereafter, he underwent surgery for implementation of a metal rod into his femur to promote healing and stability. Since that time, he has reported pain in the area of the left femur and hip. Pertinently, the Veteran's VA treatment records and reports of the November 2007, April 2008, March 2010, and October 2011 VA examinations do not show nonunion or malunion of the left femur, or fracture of the surgical neck of the left femur with false joint. Also, there is no evidence of record reflecting osteoarthritis of the Veteran's left femur, left hip or left knee. After a review of the complete record, to include the November 2007, March 2010 and October 2011 VA examination reports, the Board concludes that the criteria for a 10 percent initial evaluation, but no more, have been met. In this case, it is clear from the medical history that the service-connected disability is, in fact, fracture residuals of the left femur. This aligns perfectly with Diagnostic Code 5255. However, application of this Diagnostic Code is not advantageous to the Veteran, as his claim cannot be granted under the criteria. Specifically, the evidence does not reflect fracture of the surgical neck of the femur with false joint, nonunion of the femur, without loose motion and with weightbearing preserved with the aid of a supportive brace, or fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion. Also, while there does appear to be symptomatology of the left hip and knee associated with the Veteran's left femur disability, since there is not malunion of the femur, those provisions are not applicable in the present case. The Board will proceed to the Diagnostic Codes pertaining to limitation of extension of the thigh (Diagnostic Code 5251), limitation of flexion of the thigh (Diagnostic Code 5252), and impairment of the thigh (Diagnostic Code 5253). Diagnostic Code 5251 provides for a maximum 10 percent rating for extension is limited to 5 degrees. Diagnostic Code 5252 provides for a 10 percent rating for flexion limited to 45 degrees and a 20 percent rating is for flexion limited to 30 degrees. Diagnostic Code 5253 provides for a 10 percent rating for limitation of adduction of the thigh and inability to cross the legs, or when there is limitation of rotation of the thigh, and inability to toe-out more than 15 degrees in the affected leg, as well as a 20 percent rating for limitation of abduction, where motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a (2012). Normal range of motion in the hip consists of flexion to 125 degrees and abduction to 45 degrees. 38 C.F.R. § 4.71, Plate II (2012). The Board notes that motion of the thigh is controlled by the hip joint, which includes articulation of the femur and pelvic bones. 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. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court later clarified DeLuca, holding 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. 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, in Mitchell, the 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) affecting stability, standing, and weight-bearing. 38 C.F.R. §§ 4.40, 4.45 (2012). 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). The evidence of record reflects that the Veteran does not meet the criteria for a compensable evaluation under Diagnostic Codes 5251, 5252, or 5253. Indeed, the Veteran demonstrated a full range of motion of the left hip at the October 2011 VA examination, albeit with complaints of pain on movement. As noted above, there is no evidence of degenerative joint disease of the left hip; however, in Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that the provisions of 38 C.F.R. § 4.59 (2012), which relate to painful motion, are not limited to arthritis (degenerative joint disease) and must be considered when raised by the claimant or when reasonably raised by the record. Diagnostic Code 5003 specifies that arthritis 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). If the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For purposes of rating disability from arthritis, VA regulations consider major joints to be the shoulder, elbow, wrist, hip, knee and ankle. 38 C.F.R. § 4.45(f). In sum, although there is no finding of arthritis of the left hip, the Veteran has demonstrated a noncompensable, but painful, range of motion of this major joint. In light of above, the Board concludes that a 10 percent initial evaluation, but no more, is warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5251 - 5253 (2012). This is true throughout the appeal period. Extraschedular Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular criteria are inadequate. The rating criteria reasonably describe the Veteran's disability level and symptomatology due to his service-connected ulcerative colitis and left femur disabilities. Therefore, a further analysis under Thun is not warranted. Total rating for compensation purposes based on individual unemployability (TDIU) Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disability. Neither the Veteran nor the record raises a claim for TDIU. The April 2008 VA examination report reflects that the Veteran was unemployed at that time; however, this was attributed to his January 2008 left wrist surgery rather than his ulcerative colitis and/or left femur disability. Indeed, the Veteran was assigned a temporary total evaluation for convalescence under 38 C.F.R. § 4.30 (2012) from January 11, 2008, to July 1, 2008, because of this surgery. Thereafter, the Veteran returned to work, and at the October 2011 VA examination, he reported that he was employed as a security guard. (See the October 2011 VA examination report.) Although the examiner noted that the Veteran's ulcerative colitis cause "occasional problems" at work, there is no evidence that he is unable to perform adequately at work because of his service-connected ulcerative colitis and/or left femur disability. ORDER Entitlement to a 30 percent initial evaluation, but no more, for ulcerative colitis prior to October 27, 2011, is granted, subject to the rules and regulations governing the award of monetary benefits. Entitlement to a staged initial evaluation in excess of 30 percent for ulcerative colitis from October 27, 2011, to the present, is denied. Entitlement to a 10 percent initial evaluation, but no more, for residuals of a left femur fracture, status post open reduction and internal fixation, is granted, subject to the rules and regulations governing the award of monetary benefits. (CONTINUED ON NEXT PAGE) REMAND After review of the complete record, the Board concludes that the Veteran's claims enumerated below must be remanded in order to allow VA to fulfill its duty to assist the Veteran in substantiating his claims. Left forearm disability The Veteran is currently assigned a 10 percent evaluation for residuals of a fractured left forearm, status post open reduction with internal fixation, under the criteria of Diagnostic Code 5215 for limitation of motion of the wrist. As with the Veteran's other claims for increased evaluations, the Board must consider the applicability of other Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Unfortunately, the evidence of record does not describe certain elements of the Veteran's left forearm disability in a way which allows the disability to be evaluated at this time. Specifically, the criteria of Diagnostic Codes 5210, 5211, and 5212, are based on the physical state of the Veteran's left radius and ulna bones (i.e., nonunion, malunion, loss of bone substance, and deformity). Upon Remand, this should be clarified, to include the completion of any necessary testing. Left shoulder disability Initially, the Board observes that the Veteran has not been provided notice of the criteria necessary to substantiate a claim based on the theory of secondary service connection as per 38 C.F.R. § 3.310 (2012) and the Court's holding in Allen v. Brown, 8 Vet. App. 374 (1995). If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, the Veteran must be provided adequate notice because he has not received such, and the Board is without authority to do so. Further, the Board concludes that the nexus opinions provided by the October 2011 VA examiner are inadequate for the purpose of adjudicating the Veteran's claim. Specifically, although the examiner opined that the Veteran's left shoulder disability was not related to his service or caused or aggravated by a service-connected disability, these opinions were conclusory in nature and unaccompanied by rationales. The Court has firmly held that such opinions are inadequate for the purpose of determining whether service connection is warranted. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of above, on remand, the RO/AMC must obtain adequate opinions addressing the etiology of the Veteran's diagnosed left shoulder disability. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a corrective VCAA notice letter under 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159(b) which informs him of the criteria necessary to substantiate a claim based on the theory of secondary service connection under 38 C.F.R. § 3.310 (2012) and the Court's holding in Allen v. Brown, 8 Vet. App. 374 (1995). 2. Thereafter, transfer the Veteran's claims file to the clinician who conducted the October 2011 VA examination or, if he is unavailable, to another suitably qualified VA medical professional, for a clarifying opinion concerning the etiology of the Veteran's left shoulder disability. The examiner must be given full access to the record, to include any records which may be obtained and associated with the Veteran's electronic Virtual file. If, after review of the file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. Thereafter, the clinician must address the following: a. Provide an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran's left shoulder disability is the result of his active duty. b. Provide an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran's left shoulder disability was caused by a service-connected disability, to include his right shoulder and/or left forearm disabilities. c. Provide an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran's left shoulder disability was aggravated by a service-connected disability, to include his right shoulder and/or left forearm disabilities. All opinion(s) expressed should be accompanied by a complete rationale. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the severity, extent and manifestations of his service-connected residuals of a fractured left forearm, status post open reduction with internal fixation. The claims folder and Virtual VA file must be made available to the examiner for review in conjunction with the examination, and the examiner must note on the examination report what records were available and reviewed in connection with the examination. Thereafter, the examiner should address the following: a. Report range of motion findings of the left elbow and wrist, to include upon repetitive motion testing and during flare-ups. If pain is present on motion, the Veteran should be asked to indicate at what degree the pain begins, and the examiner must report this finding. The examiner must address whether there is any weakened movement, incoordination, excess fatigability, or pain on movement after repetitions of the range of motion. Functional impairment due to weakened movement, incoordination, excess fatigability, or pain on movement must, if feasible, be assessed in terms of the additional degrees of limitation of motion lost. b. Describe the physical state of the Veteran's left radius and ulna. Specifically, the examiner should address the presence or absence of nonunion, malunion, loss of bone substance, and/or deformity of the radius and/or ulna. The clinician is requested to provide a complete rationale for his or her opinions, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. Associate a copy of the examination report with the claims file. 4. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. 38 C.F.R. § 3.655 (2012). 5. Thereafter, readjudicate the Veteran's claims remanded herein with consideration of all evidence of record. In doing so, the RO must consider whether referral of the Veteran's claim for an increased initial evaluation for a left forearm disability to the Director of Compensation and Pension for extraschedular consideration under 38 C.F.R. § 3.321(b) (2012) is appropriate. If any benefit sought is not granted to the fullest extent, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs