Citation Nr: 1336766 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-32 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for right foot plantar fasciitis. 2. Entitlement to an initial compensable evaluation prior to January 5, 2012, and in excess of 10 percent on or after January 5, 2012, for the service-connected right shoulder injury, residuals, with evidence of distal clavicle fracture (right shoulder disability). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1993 to January 2006. He is a recipient of the Combat Infantryman's Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from February and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which in pertinent part denied service connection for right foot plantar fasciitis and granted service connection for a right shoulder injury with a noncompensable evaluation effective January 20, 2006. The Portland, Oregon RO retains current jurisdiction. By way of history, an April 2010 rating decision of the RO in Portland, Oregon found clear and unmistakable error with the previous assignment of the effective date of January 20, 2006 for the right shoulder injury in the April 2008 rating decision. The January 20, 2006 date was the day following service discharge. However, the Portland RO noted that the Veteran's original claim for service connection for his right shoulder disability was received more than a year following service discharge; therefore, the effective date for service connection can be no earlier than the date VA received his claim, or July 18, 2007. Thus July 18, 2007 was assigned as the new effective date. The RO noted that this change will not affect any disability compensation payments. The Veteran was notified of this change in a May 2010 letter which also notified him that he had one year from the date of that letter to appeal the decision with respect to the effective date change. The Board notes that the Veteran has not disagreed with the change of the effective date. By way of a Decision Review Officer Decision in April 2012, the Veteran received an increased rating of 10 percent for his right shoulder disability effective January 5, 2012 (date of the most recent VA examination), under DC 5299-5203. The Veteran was scheduled for a Travel Board hearing in September 2012 for which he failed to report. He did not present good cause for his failure to appear, nor did he request that the Board hearing be rescheduled; therefore, the appeal will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702(d) (2013). A review of the Virtual VA electronic filing system reveals documents that are either duplicates of documents in the paper file or are not pertinent to the issues on appeal. A review of the Veterans Benefits Management System reveals no documents pertinent to this appeal. The Board has reviewed all electronic and paper records associated with this file. FINDINGS OF FACT 1. The evidence of record demonstrates that right foot plantar fasciitis had its onset in active service. 2. Prior to January 5, 2012, the Veteran's right shoulder disability, the major side, is manifest by a disability picture approximating no more than painful motion. 3. On or after January 5, 2012, the Veteran's right shoulder disability, the major side, is manifest by a disability picture approximating no more than painful motion. CONCLUSIONS OF LAW 1. Resolving all doubt in favor of the Veteran, right foot plantar fasciitis was incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. Prior to January 5, 2012, an initial 10 percent evaluation, but no higher, for the service-connected right shoulder disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code (DC) 5299-5201 (2013). 3. On or after January 5, 2012, the criteria for a disability rating in excess of 10 percent for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Codes (DCs) 5201, 5299-5203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS For the issue of service connection, to the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of compliance with VA's duty to notify and assist is not required at this time. With respect to the claim for an increased evaluation, the Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under 38 U.S.C.A. § 5102, VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a) , VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status. Next, the Board notes that the claims for a higher initial evaluation for a right shoulder disability in this case arises from the Veteran's disagreement with a rating assigned in connection with the grant of service connection for this disability. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002); Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to these claims is unnecessary. In any event, preadjudication VCAA notice was provided by the RO in August 2007. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA attempted to obtain the Veteran's service treatment records in August 2007 and no service medical records were found. A notation in the casefile indicates that in September 2007, VA contacted the Veteran and requested for him to submit any service medical records in his possession, which the Veteran did submit. Such records have been associated with the case file. A request for information was submitted in November 2007 to locate service treatment records at the Records Management Center, and a negative response was received. However, private medical records were obtained via proper authorization from the Veteran and associated with the case file. Nevertheless, since the effective date of the Veteran's increased rating claim is more than one year following separation from service, the service medical records are not relevant to that claim. The Board finds that records development has been completed at this point, the Veteran does not contend otherwise, and the record has been sufficiently developed to adjudicate the increased rating claim herein. In addition, the Veteran was afforded VA examinations in February 2008 and January 2012 which the Board finds are adequate for rating purposes. VA's duty to assist has been satisfied. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims are ready to be considered on the merits. Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, some conditions may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Plantar fasciitis is not an enumerated chronic disease. Lay testimony is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the pertinent laws and regulations, the Board concludes that the Veteran is entitled to service connection for his right foot plantar fasciitis for the reasons set out below. At the time of enlistment, the Veteran's feet were found to be normal upon examination. He did not complain of any feet pain or problems. Service treatment records show that the Veteran sustained an injury to his right foot in service. A March 2005 service treatment record entry indicates that the Veteran was conducting combat operations in Iraq and slipped from a vehicle while wearing full combat gear. The Veteran landed on the curb, on the back of his right foot. Pain in the right foot was documented without any appearance of detachment. The Veteran was prescribed medication and rest and was instructed on stretching exercises for his plantar fasciitis and given a brace for his right foot. The Veteran filed his claim for service connection in July 2007. A July 2007 private treatment note indicates that the physician reported that the Veteran developed plantar fasciitis a year and a half ago (during service). The physician's diagnosis was painful pes cavus condition of both feet related to the present plantar fasciitis. VA post-service treatment records show complaints of right foot pain. The Board notes that the Veteran underwent a VA examination for his foot in January 2012. The VA examiner noted that the Veteran had a history of right plantar fasciitis in service as the date of diagnosis was 2005. The examiner considered the Veteran's history of his foot condition. He reported chronic arch pain and it was noted that the service record diagnosed plantar fasciitis. The Veteran received orthotics for this condition a couple of years ago and the pain has lessened. He is undergoing no current treatments, wears orthotics, and is not affected at work or home with activities of daily living. The examiner did not find any current foot disorders, to include plantar fasciitis or pes cavus. Imaging studies were not conducted. The examiner ultimately commented that the current diagnosis was normal feet with a history of plantar fasciitis. He opined that the orthotics have taken away symptoms of any foot disability, and plantar fasciitis was not currently found. Despite the VA examiner's finding of no current disability, the Board notes that the record shows a current disability of right foot plantar fasciitis that existed during the pendency of the appeal. The VA examiner did not provide a nexus opinion relating the history of the Veteran's right foot plantar fasciitis to service. However, it is apparent that the VA examiner accepted the Veteran's history of injury to his right foot as he noted the onset of the plantar fasciitis since 2005, as confirmed by the service treatment records. In this case, there is evidence of a right foot injury followed by a diagnosis of right foot plantar fasciitis in service. The Board also notes that, other than the service treatment records provided by the Veteran, VA was unable to independently obtain the records. Thus, the service treatment records may be incomplete. Due to the missing service treatment records, the Board recognizes its heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). As a current disability has existed during the pendency of the appeal, the remaining question involves finding a nexus between the post-service plantar fasciitis and the diagnosis of plantar fasciitis in service. With regard to lay evidence of a nexus of post-service plantar fasciitis to the in-service combat-related injury, the Federal Circuit has held that lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran is certainly competent to make asserts about the nature of his symptomatology, to include the onset of his pain, and the Board finds his credible statements to be probative in this case. Furthermore, the evidence of record supports the Veteran's statements that the onset of his right foot plantar fasciitis was when he sustained a fall performing a combat-related operation, landing on his heel, and he has had problems with his right foot disability ever since. Thus, the Board notes that there is sufficient evidence that the Veteran's right foot plantar fasciitis had its onset in service as supported by the Veteran's statements, and there is nothing in the record that specifically contradicts his statements. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Accordingly, on this record, service connection for right foot plantar fasciitis is warranted. Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes, however, this case also involves the assignment of an initial rating for a disability following an initial award of service connection for this disability. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Thus, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126. The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. The Veteran filed his original claim for service connection for his right shoulder disability in July 2007. Prior to January 5, 2012, the Veteran was assigned a noncompensable evaluation for his right shoulder disability under 38 C.F.R. § 4.71a, DC 5201 (limitation of motion of the major arm). DC 5201 is the diagnostic code applicable to the shoulder joint, and provides that, with regard to the major joint, limitation of motion of the arm at the shoulder level warrants a 20 percent rating. Limitation of motion to midway between the side and shoulder level warrants a 30 percent rating. Limitation of motion to 25 degrees from the side warrants a 40 percent rating. The Veteran is right handed (see VA examination February 2008), and his right shoulder is therefore the major joint. 38 C.F.R. § 4.69. The noncompensable rating prior to January 5, 2012 was based on the evidence of record showing that the Veteran's disability picture did not amount to arm motion limited at the shoulder level or even painful motion. In assessing limitation of motion under DC 5201, the criteria for a higher rating may be met by considering limitations of motion in either forward flexion or abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). Normal forward elevation, or flexion, of the shoulder is from 0 to 180 degrees. Normal shoulder abduction is also from 0 to 180 degrees. Normal external rotation and internal rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also, Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); see also, Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). In making all determinations, the Board must also fully consider the lay assertions of record. 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 his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue 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 Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Post-service VA treatment records show that the Veteran complained of residual right shoulder pain from his in-service injuries immediately after separation from service. He was afforded a VA examination in February 2008 during which the Veteran reported having intermittent right shoulder pain, stiffness, clicking, and grinding. Clinical findings showed forward flexion of the arm from 0 to 150 degrees, arm abduction from 0 to 135 degrees, no pain with passive or active movements, and no additional limitation of movement due to repetitive movements. X-ray studies showed a previous distal clavicle fracture without degenerative arthritis, nonunion, malunion, or dislocation. The VA examiner diagnosed residuals, right shoulder injury, with evidence of distal clavicle fracture. Although subsequent VA treatment reports show complaints of right shoulder pain and stiffness, no clinical findings for range of movement were taken at this time. Additionally, a January 2010 neurological examination in connection with another disability revealed no radiating right shoulder or arm pain as reported. The Veteran underwent another VA examination in January 2012 for his right shoulder disability, during which the Veteran reported flare-ups of the right shoulder. He stated that all overhead activity when elbows are lateral to the body in front of his face seem "ok." Increased pain with activity which is relieved by rest and no loss of function, as just pain was present. Range of motion studies revealed right shoulder flexion from 0 to 180 degrees with painful motion beginning at 125 degrees. Right shoulder abduction was from 0 to 180 degrees with painful motion beginning at 120 degrees. The Veteran was noted to be able to perform repetitive-use testing with three repetitions. Post-test range of motion studies revealed limitation to 180 degrees for both flexion and abduction, thus no additional limitation in ranges of motion in the right shoulder were noted. The examiner noted pain on movement with the right shoulder with tenderness or pain on palpation of the joints/soft tissue/biceps of the right shoulder. There was no guarding. Muscle strength tests revealed 5/5 for both forward flexion and abduction. There was no ankylosis. Rotator cuff tests were taken and the Veteran was found positive for the Hawkin's Impingement test indicating, pain upon internal rotation on the right side. There was no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. The Veteran was found to have an AC joint condition impairing the clavicle - distal fracture of the right clavicle. There was tenderness on palpation of the right AC joint. X-ray studies were performed and no degenerative or traumatic arthritis was noted. The Veteran's shoulder disability did not impact his ability work. Finally, the examiner noted that the right distal clavical fracture was tender and stiff with chronic pain but stable with activity as he missed no time at work or home life. X-rays were normal. In the present case, the Board finds that after a careful review of the pertinent evidence of record, an initial compensable rating of 10 percent, but no higher, is warranted for the right shoulder disability prior to January 5, 2012. The RO in April 2008 assigned the noncompensable rating under DC 5299-5201. The Board finds that based on competent and credible statements from the Veteran as to pain in his right shoulder manifest also by stiffness, clicking, and grinding, the minimum compensable rating of 10 percent is warranted. See 38 C.F.R. § 4.59. The February 2008 examination also showed right shoulder crepitus. However, on this record, limitation of the right arm to shoulder level as required for the next higher schedular disability rating under DC 5201 has not been demonstrated. See DC 5201. On the contrary, the evidence from the VA examination in 2008 shows limitation of motion on forward flexion to 150 degrees, arm abduction from 0 to 135 degrees, no pain with passive or active movements, and no additional limitation of movement due to repetitive movements. The evidence, overall, shows limitation of motion of the right shoulder as above, or higher than, shoulder level (90 degrees), including due to pain and other DeLuca factors, which does not more nearly approximate limitation of motion of the right shoulder to shoulder level. See 38 C.F.R. § 4.71a, Plate I. Thus, the next higher schedular disability rating under DC 5201 of 20 percent is not warranted for the period prior to January 5, 2012. See 38 C.F.R. § 4.71; Mitchell, 25 Vet. App. at 33, 43. The Board also finds that a higher rating is not assignable under any potentially applicable alternative diagnostic code. First, the evidence confirms that the Veteran does not have ankylosis, which would warrant consideration under DC 5200. 38 C.F.R. § 4.71a. A higher rating is also not assignable under DC 5202, regarding other impairment of the humerus as there was no nonunion or malunion of the humerus and no dislocation of the scapulohumeral joint. However, because the Veteran's injury involves a distal fracture of the clavicle, the Board considered DC 5203 for the period prior to January 12, 2012. Under Diagnostic Code 5203, for the major and minor arm, malunion of the clavicle or scapula warrants a 10 percent rating, nonunion of the clavicle or scapula without loose movement warrants a 10 percent rating, with loose movement a 20 percent rating, and where there is dislocation of the clavicle or scapula, a 20 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5203. At the February 2008 VA examination, there was no dislocation of the right shoulder, and no nonunion or malunion was found. Thus, DC 5203 does not help the Veteran in this instance as the result would be the same - a noncompensable rating. The Board now considers whether a higher rating in excess of 10 percent is warranted for the period on or after January 5, 2012. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that the veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum benefit is awarded). The April 2012 RO rating decision awarded the 10 percent increased evaluation under DC 5299-5203. However, the RO awarded the 10 percent increase based on additional symptoms or limitations of motion that may be noted during period of flare-ups, to include symptoms such as pain, fatigue, weakness, or lack of endurance following repetitive use. The RO reasoned that the Veteran showed objective evidence of pain noted at 125 degrees with flexion and 120 with abduction. Again, the Board has considered all of the applicable diagnostic codes, as discussed above. The Veteran is not shown to have limitation of motion that more nearly approximates shoulder level (90 degrees) based on the findings at the January 2012 examination. At that examination, right shoulder flexion was from 0 to 180 degrees with painful motion beginning at 125 degrees. Right shoulder abduction was from 0 to 180 degrees with painful motion beginning at 120 degrees. The Veteran was noted to be able to perform repetitive-use testing with three repetitions. Post-test range of motion studies revealed limitation to 180 degrees for both flexion and abduction, thus no additional limitation in ranges of motion in the right shoulder were noted. The currently assigned 10 percent evaluation already contemplates painful motion. Thus, to reiterate, the Board has carefully considered whether a higher rating for the right shoulder is warranted, but finds that the demonstrated limitations of motion, to include functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, do not more nearly approximate the criteria for a higher rating for the right shoulder on or after January 5, 2012. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell, 25 Vet. App. at 33, 43; Burton, 25 Vet. App. at 5. The current 10 percent rating already contemplates the Veteran's credible lay statements as to pain in his right shoulder. For all the foregoing reasons, the Board finds that the pertinent evidence of record shows that the Veteran's disability picture more closely approximates a uniform 10 percent disability evaluation for the entire period of appeal (before and after January 5, 2012. Extraschedular Considerations As to consideration of referral for an extraschedular rating for both issues on appeal, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above with respect to the right shoulder disability reflects that the symptoms of such disability is fully contemplated by the applicable rating criteria, i.e., DC 5201, 5203, applicable to the right shoulder disability. As discussed above, the relevant and applicable diagnostic codes contemplate the relevant symptoms relating to the aspects of the Veteran's right shoulder disability under consideration, specifically painful motion. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the Veteran did not claim, and the evidence does not reflect, that the right shoulder disability has caused marked interference with employment, frequent hospitalization, or that the symptoms of this disability have otherwise rendered impractical the application of the regular schedular standards. In fact, the record reflects that the Veteran currently has pain but it is stable as he misses no time at work or home life. Therefore, referral for consideration of an extraschedular rating for a right shoulder disability is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER Service connection for right foot plantar fasciitis is granted. An initial 10 percent evaluation for the service-connected right shoulder injury, residuals with evidence of distal clavicle fracture, prior to January 5, 2012 is granted, subject to the laws and regulations governing the payment of VA benefits. An increased evaluation in excess of 10 percent for the service-connected right shoulder injury, residuals with evidence of distal clavicle fracture on or after January 5, 2012 is denied. ____________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs