Citation Nr: 1334997 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-21 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for multiple joint pain, also claimed as osteoarthritis. 2. Entitlement to an increased rating for costochondritis, currently rated as noncompensably (0 percent) disabling. 3. Entitlement to service connection for a bilateral shoulder disorder. 4. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active duty service from August 1983 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) from September 2005 and July 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) Oakland, California. In June 2013, the Veteran submitted a motion for additional time (60 days) to submit evidence with regard to his claims. In July 2013, the Board granted his motion and held the case in abeyance for 60 days. However, no additional evidence or argument was submitted, and the Board may now proceed with adjudication. See 38 C.F.R. § 20.1304 (2012). The Board also notes that the Veteran initially requested a hearing before a member of the Board at a local VA office (Travel Board hearing). However, in a June 2013 statement, the Veteran, through his representative, expressly requested to cancel his Board hearing that was scheduled for June 18, 2013. Because he did not submit a timely request to reschedule the hearing, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). As a final introductory matter, the Board acknowledges that the RO treated the submission of a July 2006 statement and corresponding evidence following the initial September 2005 rating decision as a new claim for a total disability rating based on individual unemployability (TDIU). After reviewing the record, the Board determines that the newly obtained private records submitted in July 2006 constituted new and material evidence under 38 C.F.R. § 3.156(b) with regard to the Veteran's denied claims of entitlement to service connection for a bilateral shoulder and right knee disorder, thereby rendering the September 2005 rating decision non-final as to these issues. See Young v. Shinseki, 22 Vet. App. 461 (2009); Buie v. Shinseki, 24 Vet. App. 242 (2010) (when assessing the finality of a rating decision, it is not enough to determine that submissions within one year of a rating decision are not notice of disagreements; the Board is also required to consider the applicability of § 3.156(b)). In this regard, the September 2005 rating decision denied both claims on the merits, at least in part, for lack of a current disability; it was stated that there was an "absence of any evidence of a current right knee disability" and that the "claimed 'shoulder pain' in itself is considered a symptom and not a disability subject to service connection." The private records submitted in July 2006, however, demonstrated current disabilities for these conditions because they included a July 2002 MRI noting degenerative changes on the right knee and a March 2006 MRI of the right shoulder demonstrating a tear and minimal subacromial spurring. Therefore, the Board determines that the September 2005 rating decision did not become final pursuant to 38 C.F.R. § 3.165(b) with respect to these issues, and the Veteran's claims for a bilateral shoulder disorder and right knee disorder have been recharacterized above as meritorious claims for service connection rather than as claims to reopen. The issues of entitlement to service connection for a bilateral shoulder disorder and for a right knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In an unappealed October 1986 rating decision, which became final, the RO originally denied the Veteran's claim for multiple joint pain because there were no findings of severe pain in the joints on the last examination; thereafter, in an unappealed September 2005 rating decision, which became final, the RO denied the Veteran's claim for service connection for osteoarthritis (of multiple joints) because there was a lack of evidence establishing in-service incurrence or evidence that the disorder was secondary to costochondritis. 2. Evidence submitted since September 2005 is cumulative or redundant and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for multiple joint pain, claimed as osteoarthritis; combined with VA assistance and considering the other evidence of record, the new evidence does not raise a reasonable possibility of substantiating the claim. 3. Throughout the entire period of the claim, the Veteran's costochondritis has been manifested by chest pain, swelling, and flare-ups; incapacitating episodes or loss of function of the chest or ribs has not been shown. CONCLUSIONS OF LAW 1. The September 2005 rating decision is final as to the claim for service connection for osteoarthritis (originally claimed as multiple joint pain). 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156 (2013), 20.1103 (2012). 2. New and material evidence has not been presented to reopen the claim of entitlement to service connection for multiple joint pain, also claimed as osteoarthritis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. Throughout the entire appeal period, the criteria for a rating of 10 percent, but no higher, for costochondritis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5021, 5022, 5297 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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. See 38 C.F.R. § 3.159(b)(1). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), it was provided that notice must inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Additionally, with regard to applications to reopen a previously denied service-connection claim, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). Here, the Veteran was provided with a sufficient notification letter in April 2007 that sufficiently addressed both his claim for an increased rating for costochondritis and his claim to reopen for multiple joint pain, claimed as osteoarthritis. This letter advised him of the information necessary to establish a claim for service connection for osteoarthritis and also fulfilled the Kent and Dingess requirements. Notably, it provided that the Veteran was "previously denied service connection for multiple joint pain, osteoarthritis" in October 1968 because "there was no findings of . . . severe pain in joints although [the V]eteran gave a history of these complaints," and that he was denied service connection in September 2005 because "evidence does not show osteoarthritis is related to the service-connected [c]ostochondritis, nor is there any evidence of this disability during [m]ilitary service." With regard to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As an initial matter, all relevant evidence necessary for an equitable resolution of the claims that has been sufficiently identified has been obtained to the extent possible. The Veteran's service treatment records, VA treatment records, private treatment records, and Social Security Administration (SSA) records have been associated with the claims file. He also has provided lay statements in support of his claims. The Veteran was provided with VA examinations to ascertain the current level of severity of his costochondritis in May 2007, September 2008, and September 2010. The Board finds that the VA examinations in this case are collectively adequate for rating purposes. The examiners interviewed the Veteran and prepared a written report that discussed the nature and severity of the Veteran's costochondritis, and these examinations are sufficient so as to facilitate an informed assessment of the Veteran's costochondritis throughout the appeal period. Thus, there is no duty to obtain yet another VA examination. See 38 C.F.R. §§ 3.327, 4.2 (2013); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (the "mere passage of time" between a prior VA medical examination and the adjudication of a claim is not, in and of itself, sufficient to compel VA to provide a veteran with a new, contemporaneous medical examination). The Board acknowledges that no examination has been provided with regard to his claim for multiple joint pain/osteoarthritis. However, VA is not required to provide a new examination unless new and material evidence had been presented. See 38 U.S.C.A. § 5103A(d)(1); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003) (holding that "in the absence of new and material evidence, VA is not required to provide assistance to a claimant attempting to reopen a previously disallowed claim, including providing a medical examination or obtaining a medical opinion"). For the reasons that will be discussed below, the Board determines that new and material evidence has not been submitted to reopen the Veteran's claim of service connection for multiple joint pain/osteoarthritis; accordingly, there is no duty to obtain a VA examination or opinion with regard to this issue. II. New and Material Evidence to Reopen the Claim for Multiple Joint Pain/Osteoarthritis In 2001, VA promulgated regulations to implement the VCAA; included in those changes was a new provision of 38 C.F.R. § 3.156(a), which redefined the definition of "new and material evidence." See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). This provision is applicable to claims filed on or after August 29, 2001. In this case, the Veteran's claim to reopen was received in January 2007. As such, the new provision of 38 C.F.R. § 3.156(a) is for application in this case and is set forth below. A previously and finally disallowed claim will be reopened when new and material evidence is presented or secured. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2002); 38 C.F.R. § 3.156(a) (2013). "New evidence" is evidence "not previously submitted to agency decisionmakers," and "material evidence" is "evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). "New and material evidence can be neither cumulative nor redundant." Id. When determining the materiality of evidence, "the Board is precluded from considering the credibility of the newly submitted evidence. Rather, solely for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet. App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet. App. 510, 513 (1992)). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the U.S. Court of Appeals for Veterans' Claims explained that that 38 C.F.R. § 3.156(a) must be read as creating a low threshold and that it suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117-18. In this case, the Veteran's original claim for entitlement to service connection for TBI residuals was denied by the RO in an October 1986 rating decision because there were no findings of severe pain in the joints on the last examination. The Veteran did not appeal this decision, and it became final. Thereafter, in an unappealed September 2005 rating decision, the RO denied the Veteran's claim for service connection for osteoarthritis because there was no "evidence of these disabilities during military service" or evidence to show that osteoarthritis "is related to the service-connected condition of costochondritis." Essentially, it was determined that there was lack of evidence establishing in-service incurrence or evidence that the disorder was secondary to costochondritis. The Veteran did not appeal this decision within one year. Although the Veteran did submit additional evidence within one year of the September 2005 rating decision, these records did not did not relate to the reason for the September 2005 denial (either in-service incurrence or causation or aggravation by service-connected disability). Thus, the Board determines that no new and material evidence was submitted within one year under 38 C.F.R. § 3.156(b), nor were service treatment records associated with the claims file after the rating decision under 38 C.F.R. § 3.156(c). Accordingly, the September 2005 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Therefore, the question before the Board at this juncture is whether new and material evidence has been submitted since the September 2005 rating decision to reopen the claim for entitlement to service connection for multiple joint pain, also claimed as osteoarthritis. The evidence of record at the time of the September 2005 rating decision included the Veteran's service treatment records, which included a June 1986 dental questionnaire referencing a change in "joint [] symptoms" and a April 1986 separation Report of Medical History noting a "[history] of bilat[eral] knee pain [for] 1 yr. (arthritis)"; post-service VA treatment records noting an assessment of osteoarthritis (see December 2002, October 2003, and December 2003 VA treatment records) and complaints of chronic pain for approximately twenty years (see December 2002 VA treatment record); and a March 2004 VA examination for costochondritis, wherein the examiner stated that it was not seen that there was "any diagnosis of any inflammatory arthritis made." The evidence added to the record since the September 2005 rating decision includes statements from the Veteran indicating that he suffers from ongoing arthritis issues; additional VA treatment records and private treatment records noting complaints of pain of various joints, including the neck, shoulders, knees, and wrist and relating a history of chronic pain for more than 20 years (see e.g., April 2003 psychological evaluation); and additional VA examinations regarding the Veteran's costochondritis in May 2007, September 2008, and September 2010. Of the new evidence provided since the last final rating decision, nearly all of the evidence listed above had not previously been submitted to agency decisionmakers. However, much of it is cumulative or redundant of other evidence of record. In this regard, the Veteran's statements that he experienced chronic pain for many years (dating the onset of such pain back to service) are duplicative of evidence already considered in the September 2005 rating decision and are not "new" under 38 C.F.R. § 3.156(a). Moreover, it cannot be said that any newly submitted evidence since the last final September 2005 rating decision is "material." As discussed above, the September 2005 rating decision denied the Veteran's claim for service connection for osteoarthritis of multiple joints because there was no "evidence of these disabilities during military service" or evidence to show that osteoarthritis "is related to the service-connected condition of costochondritis." To the extent that medical records continue to reflect assessments for osteoarthritis, this was already established at the time of the last final denial. Significantly, the evidence submitted in conjunction with the Veteran's claim to reopen does not go to either the unestablished fact of in-service incurrence or causation or aggravation by a service-connected disability. To the extent that VA treatment reports suggest that his complaints of pain may be signs and symptoms of chronic myofacial syndrome, "most likely secondary in nature," it was recommended checking for "THS" (Tolosa-Hunt syndrome) and "Hep[atitis] c." This evidence neither implicates an in-service injury or disease or any involvement of the Veteran's service-connected costochondritis. In fact, recently obtained VA examinations for costochondritis are silent for any mention of whether there is any arthritis-related involvement. Even considering VA's duty to assist, the newly submitted evidence, viewed in context with the all of the evidence of record, does not suggest that the current assessment of osteoarthritis or the Veteran's complaints of chronic joint pain may be associated with either an in-service injury or disease or the Veteran's service-connected costochondritis so as to invoke VA's duty to obtain a VA examination or opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (indicating that VA's duty to obtain an examination/opinion is implicated when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim). Thus, even considering the low threshold for reopening set forth in Shade, 24 Vet. App. at 118, the evidence submitted since the September 2005 rating decision does not meet the criteria for new and material evidence under 38 C.F.R. § 3.156(a). For all these reasons, the Board determines that the evidence submitted since the September 2005 rating decision is not new and material. Therefore, the Veteran's petition to reopen his claim for service connection for multiple joint pain, also claimed as osteoarthritis, is denied. III. Increased Rating Claim for Costochondritis The Veteran's costochondritis is currently rated as 0 percent disabling. The RO granted service connection for costochondritis in a January 2003 rating decision and assigned the noncompensable rating, effective October 5, 2001, under Diagnostic Code 5299-5297. VA regulations provide that conditions not listed in the rating schedule will be rated by analogy and coded with the first two numbers of the schedule provisions for the most closely related body part and "99." 38 C.F.R. § 4.27 (2013). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. Id. The additional code is shown after a hyphen. Id. The Board recognizes that in cases such as this, when rating a disability by analogy under a particular diagnostic code, the Board must explain why other diagnostic codes are not "reasonably analogous." Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). "Costochondritis" is an "inflammation of the cartilaginous junction between a rib or ribs and the sternum." Dorland's Illustrated Medical Dictionary 423 (32d ed. 2012). The RO determined that the disorder is most appropriately rated by analogy to Diagnostic Code 5297, which governs the removal of the ribs or resection of two or more ribs without regeneration. However, the Board finds that this disability may be more appropriately rated by analogy to Diagnostic Code 5021, which governs myositis, or Diagnostic Code 5022, which governs periostitis. See Dorland's Illustrating Medical Dictionary 1244, 1437 (31st ed. 2007) (defining "myositis" as "inflammation of a voluntary muscle" and defining "periostitis" as "inflammation of the periostium . . . , marked by tenderness and swelling of the bone and an aching pain"). These latter two conditions are rated pursuant to Diagnostic Code 5003. Having found Diagnostic Codes 5021 and 5022 also analogous, the Board must now determine the appropriate schedular rating using the Rating Schedule. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2013). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2013). Otherwise, the lower rating will be assigned. Id. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). As is the case here, where 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 5297, the code under which the Veteran is currently rated, a 10 percent rating is warranted for removal of one rib or resection of two or more ribs without regeneration. 38 C.F.R. § 4.71a. A 20 percent rating will be assigned for removal of two ribs. Id. A 30 percent rating will be assigned for removal of three or four ribs. Id. A 40 percent rating will be assigned for removal of five or six ribs. Id. A maximum 50 percent rating is warranted for removal of more than six ribs. Id. Under Diagnostic Codes 5021 (Myositis) or 5022 (Periostitis), these diseases will be rated on limitation of motion of affected parts as degenerative arthritis, which is rated under Diagnostic Code 5003. Id. Under Diagnostic Codes 5003, arthritis is rated on the basis of limitation of motion of the affected part. Id. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. When, however, the limitation of motion of the specific joint(s) involved is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by the limitation of motion-to be combined, not added, under Diagnostic Code 5003. Id. The Board notes that, according to Note (2) of Diagnostic Code 5003, the additional provisions of Diagnostic Code 5003 that authorize 10 and 20 percent based on X-ray findings "will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive." Id. (emphasis added). Notwithstanding, these additional provisions authorize a 20 percent rating when there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. After carefully reviewing the evidence of record, the Board determines that the criteria for a 10 percent rating under Diagnostic Code 5003 has been met. Throughout the appeal period, the Veteran has repeatedly sought treatment for and complained of recurrent costochondritis, manifested by chest pain. Notably, in a June 2006 private treatment report, made within one year of the Veteran's January 2007 claim for an increase, costochondritis was confirmed on a past bone scan. The Veteran reported "ongoing chest pain," with symptoms lateral to the sternum that are "aggravated with a deep breath, direct pressure on the sternum or on the ribs laterally and with most [activities of daily living]." It was also noted that there was "a palpable enlargement of the bony and soft tissue structures in the upper rib connections to the sternum." This evidence meets the criteria for non-compensable limitation of motion accompanied by objectively confirmed symptoms of swelling and painful motion, and, therefore, parrots significantly the criteria for a 10 percent rating under Diagnostic Code 5003. Similar symptoms were reported in subsequent treatment records and examinations. See May 2007 VA treatment report (costochondritis caused a "waxing/waning ache along lateral sterna borders"). Accordingly, the Board finds that the criteria for a 10 percent rating under Diagnostic Code 5003 have been more nearly approximated throughout the appellate period. The next pertinent inquiry is whether, throughout the entire appellate period, the Veteran's symptoms have more nearly approximated the criteria for the next higher, 20 percent rating. After carefully reviewing the evidence of record, the Board finds that they do not. Turning first to the code under which the Veteran is currently rated, Diagnostic Code 5297 authorizes ratings of 20 percent or higher for removal of the ribs. A higher rating is not warranted under this provision because the Veteran has not had any ribs removed. See e.g., Veteran's September 2010 statement (explaining that removal of the ribs is not similar to the symptoms he is experiencing). Accordingly, this code cannot provide the basis for a higher rating. The Board has also considered whether a 20 percent rating under Diagnostic Code 5003 may be warranted. As an initial matter, Note (2) of Diagnostic Code 5003 provides that the provisions that authorize 10 and 20 percent based on X-ray findings "will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive," so these provisions would not apply to the analogous Diagnostic Codes of 5021 and 5022. In any event, the Board recognizes that this disability is being rated by analogy and, therefore, some flexibility is given to be given the rating criteria. However, even if those provisions are applied and it can be said that the Veteran's costochondritis involves two or more major joints or two or more minor joint groups (see April 2007 VA treatment report noting "tender over the costochondrial joints 3 and 4 bilaterally"), a 20 percent rating still would not be more nearly approximated under Diagnostic Code 5003 because occasional incapacitating exacerbations has not been sufficiently demonstrated. The Board acknowledges that the Veteran describes periods of flare-ups. However, it cannot be stated that these are "incapacitating" in nature. For example, during the May 2007 VA examination, the Veteran's complained of symptoms particularly worse when doing heaving work with this upper extremities and when he grabs something against the chest. However, it was noted that "his chest expansion [was] normal" and that even though "he feels some swelling in the area most of the time, [] there is no documented inflammatory disease process." Significantly, "[r]epetitive motions of the chest do not show any loss of range of motion or obvious fatigability or incoordination." Similar findings were noted in the most recent July 2010 VA examination, wherein the Veteran underwent three chest expansion motions and by doing push-and-pull motions over the hands against resistance and elevation and depression motions against hands width but did not demonstrate any significant pain, fatigability, lack of endurance or loss of range of motion. Significantly, the July 2010 VA examiner also expressly stated that the Veteran "is not having any incapacitating flare-ups." To the extent that the Veteran describes flare-ups or periods when his chest pain is exacerbated by certain actions and movements, the Board notes that he is competent to describe these symptoms as they come to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Board finds the VA examiner's objective assessment of his functional capabilities on repetitive motion to be more probative on the issue of whether the disability results in incapacitating episodes. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 and whether a higher rating may be warranted for loss of function of the chest/ribs. In this regard, rating personnel must consider functional loss and clearly explain the impact of pain on the disability. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These factors include more or less movement than normal, weakened movement, premature or excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. After carefully reviewing the evidence, a higher rating is not warranted in light of the DeLuca or Mitchell. As explained above, the Veteran has described chest pain, swelling, and periods of flare-ups when doing heaving work with this upper extremities and when he grabs something against the chest. Notwithstanding these complaints, the May 2007 VA examiner denied any additional loss of range of motion and the July 2010 VA examiner expressly denied any additional functional loss on repetitive testing. Therefore, even considering all of these additional factors that may affect range of motion-the pain, swelling, and flare-ups-his disability has not more nearly approximate the criteria for a higher rating for any loss of range of motion of the chest or ribs. See 38 C.F.R. §§ 4.40; 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Thus, throughout the entire appeal period, the Veteran's symptoms have not more nearly approximated the criteria for a 20 percent rating under any of the potentially applicable rating criteria, including Diagnostic Codes 5003, 5021, 5022, 5297. 38 C.F.R. § 4.71a. The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. "[I]nitially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. The Court provided that "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Id. Turning to the threshold inquiry, the Board notes that the criteria of Diagnostic Code 5003, 38 C.F.R. § 4.71a, expressly contemplate the occurrence of painful motion and swelling, as well as authorize higher ratings for limitation of motion of the specific joint or joints involved. The Veteran has stated that his costochondritis is manifested by pain, swelling, and flare-ups. However, his symptoms were considered by the Board above in its decision to assign a 10 percent rating under Diagnostic Code 5003, which expressly contemplates non-compensable limitation of motion with "objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion." Accordingly, the Board finds that all of his symptoms are indeed adequately contemplated by the analogous schedular criteria of Diagnostic Code 5003. Furthermore, the Diagnostic Code authorizes a higher rating when there is more severe symptomatology shown, such as involvement of multiple joints with incapacitating episodes or by rating based on limitation of motion of the affected part. As the rating criteria reasonably describe the Veteran's costochondritis and symptomatology, the threshold factor for extraschedular consideration under step one of Thun has not been met. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). In addition, although the Veteran has not been working throughout the appellate period, he not asserted, and the evidence does not otherwise indicate, that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected costochondritis (the Board notes that the Veteran last denied entitlement to TDIU in an unappealed November 2006 rating decision). As such, the Board finds that it need not further address whether a total disability based on individual unemployability (TDIU) is established. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Because new and material evidence has not been submitted, the petition to reopen the claim for service connection for multiple joint pain, also claimed as osteoarthritis, is denied. Throughout the entire period on appeal, a 10 percent rating, but no higher, for costochondritis is granted, subject to governing criteria applicable to the payment of monetary benefits. REMAND With regard to the Veteran's claims for service connection for a bilateral shoulder disorder and a right knee disorder, a remand is necessary for additional development. As an initial matter, the Board notes that the agency of original jurisdiction (AOJ) did not adjudicate the merits of these claims following the Veteran's notice of disagreement, nor can it be said that the RO de facto reopened these claims and denied them on the merits during the course of the appeal under Hickson v. Shinseki, 23 Vet. App. 394, 403-04 (2010) (the Court considered that (1) the RO developed the evidence over the period between the date the Veteran filed the claim to reopen and the date of the last adjudication, (2) the duties to notify and assist had been satisfied, including not only obtaining records, which is part of every claim to reopen, but also providing the Veteran with a medical examination, which is not required until and unless a claim is reopened, and (3) more significantly, all of the evidence in the record reveals that the RO in fact considered that evidence, assessed its credibility, and, after doing so, determined that not only was the evidence not credible but also that it did not trigger a need for any additional medical examinations). Rather, with respect to the current appeal, the claims were repeatedly denied by the RO on the basis that the Veteran had not submitted new and material evidence. See July 2007 rating decision; May 2008 statement of the case; June 2009, September 2009, and August 2012 supplemental statements of the case. It is well established that "[a]ll questions in a matter which . . . is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary." 38 U.S.C.A. § 7104(a). The U.S. Court of Appeals for Veterans Claims has held: When . . . the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this case, as explained in the Introduction, the Board finds that the original September 2005 rating decision denying the claims did not become final under 38 C.F.R. § 3.156(b). However, because the AOJ did not adjudicate the merits of the Veteran's service-connection claims in any subsequent statement of the case or supplemental statement of the case in conjunction with the current appeal, it cannot be said that the Veteran would not be prejudiced with an appellate decision with respect to the claims at this time. Accordingly, on remand, a supplemental statement of the case should be provided that contemplates the evidence as a whole and adjudicates these service-connection claims on the merits. The Board also finds that a VA examination and opinion is warranted for the right knee because there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, there is no question that the Veteran has a current disability of the right knee. Additionally, it appears that the Veteran experienced knee symptoms in service. Specifically, the Veteran's April 1986 Report of Medical History gives a positive history for arthritis and the corresponding notes indicate that he had bilateral knee pain for one year. Considering the Veteran's statements of in-service knee complaints, the Board finds that there is adequate evidence to indicate that his current knee disorder may be related to service under the low threshold set forth by McLendon. Accordingly, a VA examination and nexus opinion should be provided on remand. Finally, a review of Virtual VA reflects that VA records through June 2012 have been associated with the claims file. If the Veteran has obtained any additional VA treatment with respect to his shoulders or right knee since June 2012, these records should also be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any relevant VA treatment records relating to the shoulders and/or right knee from June 2012 through the present. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed right knee disorder. The claims file [i.e. both the paper claims file and any relevant records contained in the paperless claims file(s)] must be provided to and reviewed by the examiner. For each disability of the knee diagnosed, the VA examiner is requested to specifically address whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was incurred in, or is otherwise etiologically related to, the Veteran's active military service. In rendering this opinion, the examiner is specifically requested to address the notation in the Veteran's April 1986 Report of Medical History that gives a positive history for arthritis and notes bilateral knee pain for one year. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues of entitlement to service connection for a bilateral shoulder disorder and a right knee disorder on the merits. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs