Citation Nr: 1329136 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 06-33 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a disability evaluation in excess of 20 percent for the service-connected residuals of a right clavicle fracture (hereinafter "right clavicle disability"). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to August 1970. The matter initially came before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a November 2004 rating decision of the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Louisville, Kentucky. In April 2009, the Board remanded the claim to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC, for additional development of the record, to include providing a VA examination and medical opinion. In January 2010, the Board denied an increased rating for residuals of a right clavicle fracture on the basis of the findings on a June 2009 VA examination. The January 2010 Board decision was vacated and remanded to the Board by a Memorandum Decision of the United States Court of Appeals for Veterans Claims (hereinafter "Court") in June 2011. In March 2012, the Board again remanded the claim for additional development, in compliance with the Court's directives, to include obtaining VA treatment records and providing a VA examination and medical opinion. In December 2012, the Board remanded the claim a third time for compliance with the Board's March 2012 remand directives pursuant to Stegall v. West, 11 Vet.App. 268, 271 (1998), and in order to obtain outstanding SSA records and VA treatment records. Following its completion of the Board's requested actions, the AMC continued the denial of the Veteran's claims for service connection as reflected in a May 2013 supplemental statement of the case (hereinafter "SSOC"). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA (hereinafter "Virtual VA") to ensure a complete assessment of the evidence. Additional, pertinent medical evidence was added to Virtual VA in March 2012, April 2012 and February 2013, which was considered by the AMC in the May 2013 SSOC. Additionally, in May 2013, the Veteran submitted a waiver of his right to have this evidence initially considered by the Agency of Original Jurisdiction (hereinafter "AOJ"). As such, the Board will proceed to consider the appeal on the merits. See 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter on appeal have been accomplished. 2. For the entire period of the appeal, the Veteran's residuals of right clavicle fracture (non-dominant) is manifested by no more than dislocation of the clavicle or scapula, or nonunion of the clavicle or scapula with loose movement; but not by limitation of motion of the arm to 25 degrees from the side, even when taking into account limited motion due to pain, and there are no findings of ankylosis or impairment of the humerus; nor has the Veteran had a right shoulder replacement. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for the service-connected right clavicle disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.350, 4.1-4.14, 4.25, 4.40-4.46, 4.59, 4.71a, Diagnostic Codes (hereinafter "DCs") 5051, 5200-5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code (hereinafter "38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (hereinafter "38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") (as noted by citations to "Fed. Cir.") and the Court (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. A Veteran bears the "'evidentiary burden' to establish all elements of a claim, including the nexus requirement." Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). The Board's duty is to first determine the probative value of all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the probative value of the evidence regarding all material elements of a claim. See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Layno v. Brown, 6 Vet. App. 465, 469 (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"). A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'" Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may assign greater probative to one medical opinion over by providing an adequate statement of reasons or bases for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully weigh the probative value of the lay evidence of record against the remaining evidence of record. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, lay evidence must not be categorically dismissed as incompetent evidence of medical causation merely because it is lay evidence. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Rather, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence of a layperson, (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. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet. App. at 438, J. Lance dissenting; Robinson v. Shinseki, 312 Fed. Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Duties to Notify and Assist The Veterans Claims Assistance Act (hereinafter "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); 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 Veteran and his 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1). In a freestanding claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VCAA letters dated in October 2004, March 2006 and May 2008, collectively explained the evidence necessary to substantiate the claim for an increased rating, and informed the Veteran of his and VA's respective duties for obtaining evidence. The Veteran was also advised of the type of evidence needed to substantiate the claim for an increased rating, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned, in compliance with Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The letters explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). As noted, the claims were readjudicated in the May 2013 SSOC. Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains post-service medical treatment records, Social Security Administration (hereinafter "SSA") records and reports of VA examinations (also known in the record as Disability Benefits Questionnaires or "DBQs") (October 2004, June 2009, March 2012 and April 2013). With respect to the VA examinations, 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). The VA examination reports generally reflect review of the claims file, examination of the Veteran, and description and evaluation of his disabilities in accordance with the criteria for rating his clavicle disability. As stated above, in December 2012 the Board remanded the case for additional development of the record, to include obtaining outstanding SSA records and VA treatment records, and providing VA examination and medical opinion to evaluate the service-connected right clavicle disability. As noted, the claims file reflects that a VA examination and opinion have been obtained in April 2013, and SSA records and additional VA treatment records have been obtained and associated with the claims file. As such, the Board finds that the development directed in the prior remand has been substantially completed. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO, the AMC or the Board aware of any additional evidence that must be obtained in order to fairly decide the claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue have been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). The Merits of the Claim-Entitlement to an Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (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 nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as in this case, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Ratings shall be based, as far as practicable, upon the average impairments of earning capacity. However, from time to time, VA will readjust this schedule of ratings in accordance with experience. To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). However, "disability ratings are assigned based on a 'condition,' rather than on any symptoms of a particular condition." Cullen v. Shinseki, 24 Vet. App. 74, 80-81, 84 (2010). Thus, separate disability ratings under the same diagnostic code are not assignable "for different symptoms of an underlying spinal condition, such as pain, ankylosis, or muscle spasms." Id. In other words, "within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise." Id. However, separate ratings may be assignable under different diagnostic codes where a disability involves distinct conditions. Id. It is important to note generally that the joining of schedular criteria by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except in the case of diagnostic codes that use successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (indicating the joining of criteria by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except in the case of a diagnostic code that uses successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met.) The diagnostic codes pertaining to the shoulder are contained in 38 C.F.R. § 4.71a, DCs 5051 and 5200-5203. However, assigning multiple ratings for the Veteran's right shoulder disability based on the same symptoms or manifestations would constitute prohibited pyramiding. 38 C.F.R. § 4.14. The medical evidence of record, including the June 2009, March 2012 and April 2013 VA examination reports, show that the Veteran is left-handed; thus, his right shoulder is considered his minor extremity. See 38 C.F.R. § 4.69. The Board notes that at no point in the record has the Veteran been diagnosed with any ankylosis of scapulohumeral articulation or impairment of the humerus, which would warrant evaluation under 38 C.F.R. § 4.71a, DCs 5200 and 5202. Thus, these diagnostic codes are not for application in this case and will not be discussed further. Moreover, the record does not show that the Veteran ever underwent a prosthetic replacement of the right shoulder joint, which would warrant evaluation under 38 C.F.R. § 4.71a, DC 5051. Thus, this diagnostic code is not for application in this case and will also not be discussed further. However, 38 C.F.R. § 4.71a, DC 5201 is applicable and provides a 20 percent evaluation for limitation of motion of the minor arm, both at shoulder level and midway between side and shoulder level; and a 30 percent evaluation for limitation of motion of the minor arm to 25 degrees from the side. The Veteran's disability is currently rated under 38 C.F.R. § 4.71a, DC 5203, for clavicle or scapula impairment of the minor arm, which provides that a 10 percent evaluation is warranted for malunion of the clavicle or scapula; or rate on impairment of function of the contiguous joint; or for nonunion without loose movement. A 20 percent rating is warranted for nonunion of the clavicle or scapula with loose movement; or with dislocation of the clavicle or scapula, which is the highest rating provided for in this Code. Normal range of motion of the shoulder is forward elevation (flexion) and abduction of 0 to 180 degrees. 38 C.F.R. § 4.71, Plate I. In a January 1977 rating decision, the RO granted service connection for fracture, old, right clavicle with marked displacement and fibrous malunion, and assigned a 20 percent evaluation, effective August 14, 1970, under 38 C.F.R. § 4.71a, DC 5203. In May 2004, the Veteran filed his request for an increased evaluation. In October 2004, the Veteran underwent a VA bones examination, during which he complained symptoms of weakness, stiffness, swelling, increased warmth of redness, cracking, popping, locking and abnormal motion. He noted that he experienced seasonal pain when it was warm, and in cold, damp weather, for which he was treated with pain medications with no real effect. He reported that he had not worked since June 2004 because of his degenerative disc disease of the neck, but also denied that his clavicle disability really affected his previous job because he only lifted empty boxes and they were not heavy. He had previously worked at an industrial company, and his primary job involved cutting down empty cardboard boxes and stacking them on pallets. The examiner noted the Veteran did not have a history of osteomyelitis or current active infection, there were no constitutional symptoms of bone disease, and the Veteran did not have a brace because of his fractured clavicle. The examiner also noted the Veteran did not have surgery in his right clavicle, and the Veteran denied symptoms of giving way or instability, but he did experience pain in the fractured clavicle area when lifting more than 10 pounds or reaching over his head. On physical examination, the examiner observed the Veteran had a visible prominence of the mid-right clavicle with a palpable raised area. The proximal end of the fracture appeared to lie over the distal end of the fracture. The end of the clavicle at this site was nontender. The whole area was nontender and there is no apparent nonunion but the clavicles were overlapping. There was no palpable loose motion, but there was some crepitus with elevation of the shoulder between 145 and 150 degrees. There was no false joint, and there was no painful motion of the clavicle, but the Veteran experienced pain in his right shoulder. There was no redness, increased warmth drainage, tenderness or swelling of the right clavicle. Range of motion testing included forward elevation of the right shoulder with pain between 145 and 150 degrees, and a complaint of popping in the clavicle at the fracture site, and palpable crepitus in this area between 145 and 150 degrees elevation. The Veteran also complained of pain between 150 and 155 degrees abduction. There were no other complaints. External rotation was 90 degrees without pain. There were no symptoms of pain, fatigability, weakness, or lack endurance with repetitive motion of the right shoulder. After repetitive motion, forward elevation was 150 degrees with pain in the end of motion. Abduction had pain between 140 and 145 degrees, and external rotation was 90 degrees without pain, and internal rotation was to 75 degrees without pain. There was no change in strength with repetitive motion, and he had normal strength. His upper extremities were without pain on resistive motion. It appeared that his pain was his limiting factor more than anything else. The Veteran was diagnosed with fracture of the right clavicle, and a chest X-ray dated in August 2004 revealed old healed fracture of the right clavicle. In his VA Form 9, Appeal to Board of Veterans' Appeals, received in October 2005, the Veteran indicated that his clavicle motion had increased in severity over the years, and that he experienced arthritis and severe pain, especially during damp or cool weather. The Veteran described a cracking sound in his clavicle when making certain motions. He noted that his "bone marrow" was exposed where overlapping, and that he had to be cautious about protecting the area from being bumped into by anything. In June 2009, the Veteran underwent a second VA examination, during which he complained of progressively worsening symptomatology for which he took medication, at times with good response. The Veteran denied a history of bone neoplasm or osteomyelitis, and reported symptoms of heat and tenderness over the right collar bone, without swelling, redness or drainage. He also described tenderness to palpation along the right clavicle and intermittent pain in general associated with lifting, the weather, and lying on the right side of his body. There was no fracture site motion noted, but there was a history of deformity in the form of a raised area of bony tissue over the fracture site. The Veteran denied having fever, general debility, or the need for assistive devices for walking, but he did report that he experienced severe flare-ups of bone or joint disease every 2 to 3 weeks, for 1 to 2 days at a time, during which he could not use his right arm for lifting or carrying. He indicated that his right clavicle disability affected the motion of his joint, especially when there were changes in the weather. It was noted that the Veteran was left-hand dominant. On physical examination, the examiner observed the left clavicle was deformed due to malunion of the mid-clavicle and bony prominence of the left clavicle, one centimeter by one centimeter, with tenderness to palpation, but without erythema, warmth or swelling. The examiner reported no findings of angulation, loss of a bone or part of a bone, or false joint. The left shoulder joint was also described as abnormal due to abnormal motion, limitation and pain. It was noted that there was no flail or false flail joint. The examiner indicated there were no signs of active infection and there were no signs of bone disease. Range of motion testing of the left shoulder included findings of flexion to 138 degrees with pain, abduction to 130 degrees with pain, internal rotation to 75 degrees with pain, and external rotation to 90 degrees with pain. Three repeat movements of the left shoulder caused worsening of pain, and there was limitation of motion with the repeat movements, including abduction decreasing to 115 degrees secondary to pain, but not to weakness, fatigue or incoordination. Sensory and motor examination was within normal limits of the left upper extremity. Range of motion testing of the right shoulder included findings of flexion to 175 degrees, abduction to 130 degrees, and internal and external rotation to 90 degrees. The examiner noted there was no right shoulder pain with range of motion testing, and mistakenly indicated that the right shoulder was not a claimed condition, despite providing a thorough history earlier in the examination report of the Veteran's in-service right shoulder injury, and the residuals thereof. An X-ray study ordered in conjunction with the examination revealed findings of an old healed fractured mid-clavicle; no degenerative disease; and old right fifth, sixth and seventh posterior ribs and fractures. The examiner noted that the Veteran had retired from the U.S. Postal Service as a mail handler in June 2004 due to degenerative disc disease of his cervical spine. The Veteran was diagnosed with right clavicle fracture, healed, but with bony prominence of the clavicle, still with right shoulder limited range of motion. The examiner noted the Veteran's right clavicle disability had no effect on the Veteran's ability to use the toilet, to bathe, to groom himself or to feed himself; had mild effect on his ability to travel and to dress himself; had moderate effect on his ability to perform chores, to shop and to recreate; and prevented his ability to play sports and to exercise. The examiner indicated that the Veteran could no longer lift weights or do push-ups, and was unable to do many activities with his right arm, such as carrying materials that were greater than 10 pounds. The Board finds the June 2009 VA examination report to be unclear due to the inconsistencies in the physical examination, which misidentified the affected area of the body. Thus, the examination was inadequate for VA rating purposes under 38 C.F.R. § 4.2 (2012). See Bowling v. Principi, 15 Vet.App. 1, 12 (2001 (holding that the Board has a duty to remand a case "'[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision'" (quoting 38 C.F.R. § 19.9). In March 2012, the Veteran underwent a VA examination by the June 2009 VA examiner, in which the examiner noted that the Veteran's right shoulder disability was the correct disability on appeal. However, the report did not include any physical findings whatsoever and the examination report was otherwise almost entirely incomplete. On VA examination in April 2013, the examiner noted a history of right clavicular fracture in March 1970 due to a motor vehicle accident in the Republic of Vietnam. The Veteran complained of right shoulder pain every day, rated at 2 out of 10, on a constant basis. He also described flare-ups of pain going to a 5 or 6 out of 10, precipitated by cold weather or damp conditions, by sleeping on his side, or with repeat movements of the right arm, which occurred 2 to 3 times per week and lasted up to the whole day. The Veteran estimated that he loses about 10 to 15 degrees of range of motion in the middle of a flare-up, and indicated that they impacted his ability to lift certain objects or objects that are very heavy. He reported that they also impact what he is able to do, such as overhead lifting or working, although he reported that certain chores and daily activity were moderately affected. The examiner noted that the Veteran was left-handed. The Veteran reported that while he was employed, his right clavicle did not interfere with his work activities, and he was characterized as being currently retired. On physical examination, the examiner observed pain with range of motion testing throughout the movements, including experiencing pain on a scale of 2 out of 10 at rest. Range of motion testing revealed findings of flexion to 140 degrees, abduction to 138 degrees, internal rotation to 80 degrees and external rotation to 90 degrees. With repeat movements there was mild weakness in the right arm, as well as worsening pain; however, there was no change in the measured ranges of motion with repeated movements, and there was no localized tenderness or pain on palpation of the joint/soft tissue/bicep of the right shoulder. Also, there was no guarding of the right shoulder, and there was normal muscle strength testing in the right shoulder on abduction and flexion. The examiner observed there was no ankylosis of the glenohumeral articulation. Cross-body adduction test was negative, but there was tenderness on palpation of the acromioclavicular joint. The Veteran did not have a total shoulder joint replacement, or arthroscopic or other shoulder surgery. The examiner noted the June 2009 X-ray study revealed an impression of an old healed fracture of the mid-clavicle, and the Veteran was diagnosed with an old healed fracture of the right mid-clavicle. As noted, the Veteran may only be entitled to an evaluation in excess of 20 percent for his right clavicle disability under 38 C.F.R. § 4.71a, DC 5201, which provides a 30 percent evaluation for limitation of motion of the minor arm to 25 degrees from the side. The Board finds there is no evidence during the pendency of this claim showing limitation of motion of the arm to 25 degrees from the side, even when taking into account limited motion due to pain. In fact, the most probative evidence of record, the October 2004 and April 2013 VA examination reports, clearly show that the Veteran's limitation of motion of the minor arm is nowhere near to 25 degrees from the side. The Board acknowledges that the Veteran is competent to report the nature and extent of his right clavicle symptoms, to include describing his overall functional loss. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, by the Veteran's own admission on the most recent VA examination in April 2013, he estimated that he loses about 10 to 15 degrees of range of motion in the middle of a severe flare-up. Also, the evidence does not show that the Veteran's right clavicle disability is additionally limited by pain, weakness, fatigability, or incoordination beyond the range of motion measurements recorded in the VA examination reports. Even after repetitive testing, the Veteran's range of motion well exceeded the criteria for a 30 percent evaluation for his right clavicle disability based on range of motion of the right arm. Although the April 2013 VA examination report states that pain and mild weakness occurred with repeat motion of the arm, there was no change in the measured range of motion with repeat movements. The Court held in Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) that 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. Thus, as the objective clinical evidence shows that the Veteran was able to perform repetitive motion of the right arm well beyond the limitations warranting a 30 percent evaluation under DC 5201, a higher rating is not warranted under the DeLuca criteria. With regard to the Veteran's reported flare-ups, the evidence does not show that the overall level of disability is more severe than the objective findings recorded in the examination reports. Thus, a higher rating is not warranted under the DeLuca criteria. As noted, there is no evidence of other symptoms or pathology of the Veteran's right clavicle disability to warrant a separate or higher evaluation under any other diagnostic code. In this regard, there are no findings of ankylosis or impairment of the humerus; nor has the Veteran had a right shoulder replacement, which might have entitled him to a higher evaluation under a different diagnostic code. Thus, a higher rating is not warranted under 38 C.F.R. § 4.71a, DCs 5051, 5200 and 5202. As there is no evidence showing that the Veteran is entitled to a rating in excess of the evaluation already assigned at any point during the pendency of this claim, staged ratings are not appropriate for the relevant time frame. See Hart, 21 Vet.App. at 509-10. The preponderance of the evidence is against the assignment of a higher disability evaluation for the right clavicle disability. Consequently, the benefit-of-the-doubt rule does not apply, and a higher or separate evaluation beyond that already assigned is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet.App. at 55. Additional Considerations The Board has also considered whether the Veteran's right clavicle disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). VA regulations require that unless the symptoms and/or degree of impairment due to a service-connected disability can be distinguished from any other diagnosed disorders, VA must consider all symptoms in the adjudication of the claim. See Mittleider v. West, 11 Vet. App. 181 (1998). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), 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 the claimant's 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 extraschedular 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). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Overall, the occupational and social impairment caused by the Veteran's right clavicle disability, as described above, are accounted for by the rating criteria. The Veteran's reported functional limitations, including difficulties with dressing, traveling, recreation, sports, exercise, shopping and chores, as well as lifting, are expected concomitants of the symptoms and pathology already compensated under the applicable diagnostic codes, which are based on limitations of motion impairment of the clavicle, as well as pain, weakness, and similar factors, and thus such limitations are within the purview of the schedular criteria. Thus, the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. The Board notes that the Board has considered all symptomatology stemming from the Veteran's service-connected right shoulder disability when evaluating his claim for a higher rating. The VA examination in 2013 clearly identified and evaluated the Veteran's right shoulder impairment to the exclusion of any additional impairment from his non-service-connected neck disability. In the present appeal, the Veteran reported he had retired from the post office due to non-service-connected degenerative disc disease (DDD) of the neck. It is noted that he is in receipt of SSA disability benefits based on a primary diagnosis of DDD. He has not indicated that his right shoulder disability alone made him unemployable. In fact, during the course of a 2013 VA examination he indicated that his right clavicle disability had not interfered with his work activities. Thus, a claim for a total disability rating based on individual unemployability is not raised. ORDER A disability evaluation in excess of 20 percent for the service-connected right clavicle disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs