Citation Nr: 1342298 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 05-28 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a left foot disorder to include fracture of the toes and heel spurs, and if so, whether service connection is warranted. 2. Entitlement to service connection for a right foot disorder to include fracture of the toes and heel spurs. 3. Entitlement to service connection for spasms of the upper back to include the thoracic and cervical spine (back disorder). 4. Entitlement to a rating in excess of 20 percent for fibromyositis of the left shoulder (left shoulder disability). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from April 1983 to August 1992. This appeal comes before the Board of Veterans' Appeals (Board) from April 2004 and September 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville Tennessee. In an August 2005 substantive appeal, the Veteran requested a hearing before the Board sitting at the RO. She withdrew the request in writing in October 2005. In January 2008, the Board in part remanded the issues captioned above and a claim for service connection for abdominal pain from scar tissue and adhesions for further development. In September 2009, the RO granted service connection for abdominal pain. Therefore, that issue is no longer on appeal. The Virtual VA paperless claims processing system does not contain additional evidence relevant to this appeal. The issue of service connection for spasms of the upper back to include the thoracic and cervical spine (back disorder) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In December 1996, the RO denied service connection for a left foot disorder, claimed as a fracture of the 4th metatarsal. The Veteran did not express disagreement or submit new and material evidence within one year, and the decision is final. 2. Since December 1996, evidence has been received that is new, not cumulative, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a left foot disorder to include fracture of the toes and heel spurs. 3. The Veteran's right and left foot plantar calcaneal spurs and residuals of bunion and neuroma surgery manifested after active service, are not later manifestations of treatment for foot and toe strains or blisters, and were not caused by any aspect of military service. 4. For the entire period of this appeal exclusive of the period September 27, 2004 to December 1, 2004, the Veteran's left shoulder disability including post-arthroscopic repair of a torn rotator cuff, is manifested by limitation of motion greater than 25 degrees from the side with pain, tenderness, and difficulty lifting or performing overhead activity with no muscle atrophy or loss of reflexes or sensitivity. CONCLUSIONS OF LAW 1. As new and material evidence has been received, the criteria for reopening the claim for service connection for a left foot disorder to include fracture of the toes and heel spurs are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 2. The criteria for service connection for a left foot disorder to include fracture of the toes and heel spurs are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 3. The criteria for service connection for a right foot disorder to include fracture of the toes and heel spurs are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 4. The criteria for a rating in excess of 20 percent for fibromyositis of the left shoulder (left shoulder disability) are not met. 38 U.S.C.A. § 1155 (West 2002); §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5021, 5201 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the context of a petition to reopen a final disallowed claim, VA must notify a claimant of the evidence and information that is necessary to reopen a previously denied claim, and must notify the claimant of the evidence and information that is necessary to establish entitlement to service connection. Kent v. Nicholson, 20 Vet. App. 1 (2006). In October 2003, the RO provided a notice that did not meet all the requirements. The notice provided three of the elements necessary to substantiate a claim for service connection but did not explain the general method for assignment of a rating and effective date. The notice explained the Veteran's and VA's respective responsibilities to obtain relevant evidence but did not inform the Veteran that service connection for the left foot disorder had been previously denied, the reasons for the denial, and that new and material evidence was required to reopen the claim. In view of the Board's favorable decision to reopen the claim, the Veteran was not prejudiced by the notice error. Moreover, as directed by the Board in the January 2008 remand, the Appeals Management Center provided an additional notice in April 2008 that met all requirements including a general explanation of the method for assigning ratings and effective dates with an opportunity for the Veteran to respond and readjudication of the claims in supplemental statements of the case in August 2010 and December 2012. Therefore, the notice requirements have been satisfied. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment and post-service VA treatment records have been obtained and associated with the claims file. The Veteran did not identify any other sources of relevant records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on a claim. The Veteran was provided VA examinations in May 1994, October 1995, March 2000, November 2003, January 2010, and March 2010. The results have been included in the claims file. The examinations and opinions involved summary of the history from a review of the record and from reports by the Veteran, lay statements by friends and relatives, and a thorough clinical examination in compliance with regulations and protocols. The Veteran was scheduled for additional examinations in April 2012 and November 2012 but did not appear for the examinations with no good cause shown. When a claimant fails without good cause to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(a), (b). Additionally, the Board issued a remand in January 2008. Following a review of the additional evidence, the Board concludes that there has been substantial compliance. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The RO requested that the Veteran submit or identify additional evidence, obtained current VA treatment records, and an additional VA examinations and opinions. The Board finds that there has been substantial compliance with the mandates of its remands. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record. The Veteran served as a U.S. Air Force aircraft mechanic. She contends in several statements including in an August 2005 substantive appeal that her bilateral foot and back disabilities first manifested with injuries in service and that her service-connected left shoulder disability is more severe than is contemplated in the current rating. II. Reopening Claims In December 1996, the RO denied service connection for a left foot disorder, claimed as a fracture of the 4th metatarsal. The RO noted that service treatment records showed a left toe sprain and left heel pain but no fractures. The RO found that the then-current left foot disorders diagnosed as tendinitis and an ingrown toenail were not residuals of the symptoms observed in service. The Veteran did not express disagreement or submit new and material evidence within one year, and the decision became final. 38 C.F.R. § 7105; 38 C.F.R. § 3.156. The RO received the Veteran's petition to reopen the claim in August 2003. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is existing evidence not previously submitted to agency decision makers. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In evaluating an application to reopen a claim for service connection, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Since December 1996, the RO received the following evidence: VA outpatient treatment for left foot neuroses and a bunion from 1998 to 2012; lay statements from a friend and relatives in July 2004, and a VA podiatry examination in January 2010. All evidence is new because it had not been previously considered. The lay statements are not material because they either do not address the left foot or did not address the etiology of the current disorder which was the reason for the previous denial. However, the VA outpatient treatment records and the January 2010 examination are material as they provide clinical details of left foot deficits and includes a medical opinion regarding address a possible relationship to service. Therefore, as new and material evidence has been received, and to this extent only, the Board grants the petition to reopen the claim and will adjudicate it on the merits. III. Service Connection Service connection may be granted for a 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). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's degenerative joint disease or arthritis is recognized as a chronic disease. Bilateral calcaneal spurs, bunions, and neuroses of the feet are not recognized chronic diseases. A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board may weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson is not competent to diagnose a form of cancer). As reflected in Fed.R.Evid. 701, lay witness testimony is permissible in the form of opinions or inferences when (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Otherwise, in matters involving scientific, technical or other specialized knowledge, Fed.R.Evid 702 requires that an opinion be provided by a witness qualified as an expert by knowledge, skill, experience, training or education. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Service treatment records showed that the Veteran was treated for symptoms related to the feet on several occasions. In August 1988, the Veteran sought treatment for pain in the plantar surfaces of both feet on weight bearing after having removed arch supports from her shoes. The Veteran denied any traumatic injury or previous symptoms. A clinician noted some tenderness on palpation but no visible abnormality and a full range of motion. The clinician diagnosed bilateral longitudinal arch strain and prescribed the continued use of arch supports, night soaks, and anti-inflammatory medication. In January 1989, the Veteran sought treatment after a fall caused her to abnormally bend back the fourth and fifth toes of the left foot. A clinician diagnosed a sprain and prescribed anti-inflammatory medication and taping of the toes for 10 days. X-rays obtained five days later were normal with no indication of fractures. In December 1989, the Veteran was authorized to wear tennis shoes because of foot swelling. There are no associated clinical records. The Veteran sought treatment on two occasions for left heel pain in April 1990 and August 1991 and was diagnosed with a strain and "soft tissue compression syndrome." The Veteran was also treated for a left great toe blister in June 1990 and for pain on the dorsum of the left foot in July 1991. No traumatic injuries or chronic disorders were noted. A May 1992 physical examination is silent for any reports by the Veteran or observations by the examiner of any foot abnormalities. A May 1994 VA general medical examination that included assessments of the knees and wrists is silent for any symptoms of the feet. In a January 1996 claim, the Veteran asserted that she fractured the fourth toe of the left foot in January 1989. VA outpatient records from February 1995 through May 1999 show that the Veteran was treated for a left great toe ingrown nail, bunion, and degenerative joint changes, left foot neuroses, left foot tendinitis, and for a right heel calcaneal tuberosity. An X-ray of the left foot was normal with no indication of fracture or dislocation. The Veteran underwent a left bunionectomy and removal of Morton neuromas in September 1999. In March 2000, a VA examiner noted that the Veteran had undergone post-surgery physical therapy and still walked with an antalgic gait favoring the left foot. The examiner noted that the disorder would not preclude employment but did not address a possible relationship to the treatment in service. In January 2010, a VA podiatrist noted a review of the claims file and the Veteran's report of the only trauma to the feet in service occurred when she dropped a tool box on her right foot which irritated her pre-existing foot pain. She reported that she sought emergency room treatment and that X-rays were negative. The Veteran reported that she currently experienced pain on the top of both feet, coldness in the toes, and pain in the heels. The podiatrist was unable to find any treatment in service after a dropped tool box, but noted the post-service treatment and surgery for the ingrown nail, bunions, and neuromas. X-rays of both feet showed a small plantar calcaneal spur, post surgery bunion hardware, and mild arthritic changes in the large toes. The podiatrist concluded, "...review of her records do not show in my opinion consistency in her symptoms related to both feet as well as all areas that she is concerned with...It is my opinion that this patient's podiatric and foot-related symptoms of each foot, specifically of the right foot, are not related to her Service Connection (sic)." In March 2010, another VA physician noted a review of the claims file and the Veteran's report of progressive foot pain and bunion surgery in 1999 on the left and in 2005 on the right. The physician examined the Veteran's ankles but made no clinical observations of the feet. The physician noted the previous X-ray results and concluded that "... the patient's bunions and neuromas were related to service connected shoe wear." The RO ordered additional foot examinations scheduled in April and November 2012, but the Veteran failed to appear with no good cause shown. In a December 2012 supplemental statement of the case, the RO advised the Veteran that evidence from these examinations which may have been material to the outcome of the claims could not be considered. Later the same month, the Veteran's representative responded that no additional information or evidence would be submitted and requested appellate consideration as soon as possible. The Board finds that service connection for right and left foot disorders including residuals of toe fractures and heel spurs are not warranted. The Veteran's and other lay statements of observed symptoms including pain are both competent and credible as they have been accepted by clinicians during and after service without challenge as imaginary or manipulative. The Veteran's report of toe fractures is not credible as there is no evidence during service of a toe fracture or imaging evidence after service of residuals of fractures. Furthermore, a determination that deficiencies in one area of the foot necessarily lead to later deficiencies in other areas of the foot is a complex medical matter, requiring clinical training and experience that the Veteran does not possess. The Board places low probative weight on the Veteran's assertions that the symptoms during service were the first manifestations of her post-service foot disorders because they are not physiologically consistent; that is the clinical observations and diagnoses recorded in service identify deficiencies in areas of the foot structure different from those found after service. The Board places greatest probative weight on the observations and opinion of the VA podiatrist in the January 2010 examination and much less probative weight on the brief opinion of the VA physician in March 2010. The podiatrist's opinion was not artfully stated and in conflict with the physician's opinion. Clarifying opinions would have been helpful. However, as the Veteran did not appear on two occasions for additional examination, the Board must proceed on the basis of the record. The podiatrist noted a review of the claims file and indicated that he was unable to find a reference in the service treatment records regarding a dropped tool box injury. In fact, the Veteran has consistently denied any trauma to the feet other than the fourth and fifth left toe sprains in a fall in 1989. The podiatrist did indicate an awareness of all foot abnormalities and treatment during and after service, noting that they did not show a consistent history of chronic disability arising from the treatment in service. He found no nexus between the current plantar spurs, residuals of bunion surgery, and history of neuromas and the treatment in service for acute sprains, strains, foot pain, and a blister. Moreover, the record shows that the Veteran did not fracture her toes and that plantar calcaneal spurs were identified after service. The Board places much less probative weight on the brief statement by the physician in March 2010 as he vaguely associates the bunions and neuromas with "shoe wear." Other than the Veteran's use of arch supports noted on one occasion in service, there is no indication in service of abnormal shoe wear or deformity of the feet such as bunions at that time. The physician did not explain why shoe wear in service by an aircraft mechanic imposed some form of abnormal stress different from shoe wear after service up to the first manifestations in 1995-96. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the Board places much less weight on the opinion as it is brief, without rationale, and based on a fact not shown in the service records. The weight of the credible evidence demonstrates that the Veteran's current symptoms of the bilateral feet first manifested after service and are not related to any aspect of active service. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Consideration must be given to assigning "staged" ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board attempts to determine the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran is currently rated as 20 percent disabled under Diagnostic Code 5021, the diagnostic code used to evaluate myositis. This disorder is rated for limitation of motion of the affected joint. VA examination records show that the Veteran is right-handed. The evaluation criteria for limitation of motion of the non-dominant shoulder are provided under Diagnostic Code 5201. A 20 percent evaluation is warranted for limitation of motion of the arm at shoulder level or mid-way between the side and the shoulder. A 30 percent rating is warranted if motion is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201. Normal shoulder motion is defined as 0 to 180 degrees of forward elevation (flexion), 0 to 180 degrees of abduction, and 0 to 90 degrees of internal and external rotation. See 38 C.F.R. § 4.71, Plate I (2013). In evaluating musculoskeletal disabilities, the Board must assess functional impairment and determine the extent to which a service connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Ratings based on limitation of motion do not subsume the various rating factors in 38 C.F.R. §§ 4.40 and 4.45, which include pain, more motion than normal, less motion than normal, incoordination, weakness, and fatigability. These regulations, and the prohibition against pyramiding in 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206- 08 (1995). When rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. A finding of functional loss due to pain must be 'supported by adequate pathology and evidenced by the visible behavior of the claimant.' 38 C.F.R. § 4.40. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Board has considered whether a rating is available under other diagnostic codes. Shoulder disabilities can also be rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, or 5203. However, none of these codes are applicable. There is no evidence of any ankylosis that would warrant a higher rating under Diagnostic Code 5200. There is no evidence of recurrent dislocation, deformity, malunion, or nonunion, so as to warrant a higher ratings under Diagnostic Codes 5202 or 5203. The RO received the Veteran's current claim for an increased rating in August 2003. In November 2003, a VA physician noted a review of the claims file and the Veteran's report of left shoulder pain for at least 10 years. The Veteran reported no traumatic injuries but that she performed repetitive overhead work on aircraft during active service. The current pain was a daily ache with knife-like exacerbations aggravated by overhead work which she had not been able to perform since the previous June. On examination, range of active forward flexion and abduction was to 120 and 90 degrees with pain respectively. External and internal rotation was 80 and 70 degrees respectively. X-rays showed mild degenerative joint disease and a slight separation of the acromiocalvicular joint. In February 2004, the Veteran received a steroid injection in the left shoulder joint. In lay statements in July 2004, the Veteran's mother, sister, and friend noted that the Veteran had severe left shoulder pain, interrupted sleep, and difficult lifting her dog. In September 2004, the Veteran underwent arthroscopic surgery in which the surgeon noted and repaired internal derangement and a rotator cuff tear. In a post surgery follow up, the surgeon noted that there was no decrease in daily pain but also no muscle atrophy and improvement in range of motion and decreased tenderness. The surgeon prescribed a course of physical therapy. In January 2005, the RO granted a temporary total rating for convalescence from the surgery effective from September 27, 2004 to December 1, 2004, and a 20 percent rating thereafter. In January 2008, the Board remanded the claim for an increased rating in part to obtain a post-surgery VA examination. In March 2010, a VA physician noted a review of the claims file and the Veteran's reports of progressive left shoulder pain since overhead work in service in the 1980s. The physician also noted the arthroscopic surgery in September 2004. He referred to a February 2010 magnetic resonance image of the shoulder that showed that the rotator cuff tear had healed but that there were minimal degenerative cystic changes, no tendon retraction or muscle atrophy, no gross bone marrow abnormality, and no significant joint effusion. There was no ankylosis, malunion, or nonunion of the skeletal structures. On examination, range of forward flexion and abduction was to 80 and 110 degrees respectively. External and internal rotation was to 40 and 50 degrees respectively. All motion was painful but with no additional loss of function on repetition. Outpatient VA records throughout the post-service history show near continuous prescriptions for medication for multiple joint pain including narcotic medications. As noted above, the Veteran failed to report for additional VA examinations of the left shoulder in April and November 2012. The Board concludes that a rating in excess of 20 percent for fibromyositis of the left shoulder, now diagnosed as degenerative joint disease and residuals of arthroscopic surgery, is not warranted at any time during the period covered by this appeal exclusive of the temporary total rating for convalescence from September to December 2004. The Board finds that the Veteran and her relatives and friends are competent and credible to report her observed chronic shoulder pain, interrupted sleep, and difficulty lifting. The Veteran was granted a total rating based on individual unemployability effective since May 2004 in part because of loss of function of the service-connected left shoulder. A schedular rating is not warranted because at all times during the period covered by this appeal, the range of forward flexion and abduction of the left shoulder was greater than 25 degrees from the side. Although motion was painful and precluded lifting, there was no observed further loss of function due to pain. The Veteran is likely limited in the performance of strenuous household cleaning and repair but there is no evidence of an inability to continue independent living and performance of activities such as dressing, bathing, preparing meals, and operating an automobile. The determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If it is determined that this is so, the second step of the inquiry requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted. Id. The Board finds that neither the first nor second Thun element is satisfied here. The Veteran's service-connected left shoulder disability is manifested by signs and symptoms such as pain, limitation of motion, and an inability to lift. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the shoulder provide ratings on the basis of limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5021, 5201 (providing ratings on the basis of forward flexion and abduction. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with lifting. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet.App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by impairment in lifting or overhead activities. In short, there is nothing exceptional or unusual about the Veteran's left shoulder disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet.App. at 115. With respect to the second Thun element, even if the rating criteria were not adequate, the "related factors" of frequent hospitalization is not present and marked interference with employment is recognized by a total rating based on individual unemployability for nearly the entire period of the appeal. Thus, even if her disability picture was exceptional or unusual, referral would not be warranted. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER As new and material evidence has been received relevant to a claim for service connection for a left foot disorder to include fracture of the toes and heel spurs, to this extent only, the petition to reopen the claim is granted. Service connection for a left foot disorder to include fracture of the toes and heel spurs is denied. Service connection for a right foot disorder to include fracture of the toes and heel spurs is denied. A rating in excess of 20 percent for fibromyositis of the left shoulder (left shoulder disability) is denied. REMAND Upon review of the record, the Board finds that the medical evidence relevant to the claim for service connection for spasms of the upper back to include the thoracic and cervical spine (back disorder) is not sufficient to decide the claim and that an addendum opinion or additional record review and opinion is necessary. The Veteran contends that she experienced recurrent upper back muscle spasms in service caused by her duties as an aircraft mechanic. Service treatment records show that the Veteran sought treatment on multiple occasions from May to December 1988 and from January to November 1991 for upper back spasms, tenderness, and pain over a prolonged period of time with no traumatic injuries. An August 1988 work environment report showed that the Veteran's occupation included lifting heavy aircraft components and tool boxes and pulling a 300 pound box. However, a May 1992 physical examination and a post-service May 1994 VA examination are silent for any chronic upper back symptoms or abnormalities. In March 2010, a VA physician noted a review of the claims file and the Veteran's report of the progressive onset of cervical and thoracic spine pain radiating to the upper extremities that she attributed to prolonged sitting at a work bench during active service. The physician performed a detailed cervical and thoracic spinal examination, noting limitation of motion in most directions with spasms, tenderness, and guarding during motion. There was no loss of reflexes or muscle strength or muscle atrophy. X-rays were negative for spinal disease. Nevertheless, the physician diagnosed cervical and thoracic disc syndrome and noted, "It is likely as not that the patient cervical and thoracic symptoms related to service connected injuries." The physician did not acknowledge the absence of any traumatic injuries to the spine in service and did not explain why the treatment in service for recurrent back strain and spasms constituted the injuries on which he based his opinion. He offered no additional rationale. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In this case, the sole medical opinion addressing a possible relationship of the Veteran's current upper back limitation of motion, tenderness, and spasms to two periods of treatment in service for chronic back strain is not adequate. Once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In view of the Veteran's repeated failure to appear at scheduled VA examinations, an addendum opinion by the March 2010 physician, Dr. J.C.M., if available, or a new and complete opinion with rationale by another qualified VA physician based on a thorough review of the record is necessary to decide the claim. Further, VA is required to make reasonable efforts to help a claimant obtain records relevant to his/her claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the RO should request VA medical records pertaining to the Veteran that are dated from August 2010 to the present. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Request all records of VA outpatient treatment since April 2010 and associate any records received with the paper or electronic claims files. 2. Send the Veteran a notice that offers the opportunity to provide or identify any evidence relevant to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Obtain any identified and authorized evidence and associate any evidence received with the electronic or paper claims files. 3. Then, provide the paper claims files and either access to the electronic file or paper copies of any material added to the electronic file to Dr. J.C.M. if available or to another qualified VA physician. Request that the physician review the claims file and note the review in a written report. Request that the physician provide an opinion whether the Veteran's current upper back symptoms of pain, spasms, and guarding, diagnosed as disc syndrome, are at least as likely as not (50 percent probability or greater) caused by the Veteran's military duties as an aircraft mechanic during active service. The physician must comment on the nature and frequency of the Veteran's upper back treatment in 1988 and 1991 and its relevance, if any, to the current upper back disorders. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the veteran and her representative. After the veteran and her representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs