Citation Nr: 0814689 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 95-17 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability rating higher than 20 percent for service-connected residuals of left shoulder dislocation, prior to August 1, 1996. 2. Entitlement to a disability rating higher than 30 percent for service-connected residuals of left shoulder dislocation, from August 1, 1996. 3. Entitlement to a temporary total convalescence rating for service-connected residuals of left shoulder dislocation beyond January 31, 2001. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. J. Turnipseed, Associate Counsel INTRODUCTION The veteran had active service from September 1982 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) from an August 1994 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In November 2001, the veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO. A transcript is associated with the claims file. This claim was previously before the Board in September 2003 and June 2005, at which time the Board determined that additional development was necessary, and remanded. All requested development has been completed and the veteran's appeal is now properly before the Board for appellate consideration. FINDINGS OF FACT 1. Prior to August 1, 1996, the competent and probative evidence shows the veteran's service-connected residuals of left shoulder dislocation were characterized by limitation of motion with minimal degenerative changes in the gleno-humeral joint. There was no evidence of a rotator cuff tear or dislocation and the relationship between the veteran's left humeral head and glenoid was well-maintained. 2. From August 1, 1996, the competent and probative evidence shows the veteran's service-connected residuals of left shoulder dislocation were characterized by degenerative changes with recurrent dislocations, marked muscle atrophy in the anterior deltoid and pectoralis region and complaints of painful motion. The veteran's humeral head and glenoid fossa are intact with no evidence of fibrous union, nonunion, or loss of the humeral head. The veteran has two scars on his left shoulder, measuring 18 and 12 cms, which are nontender and are not adherent to deep tissue. 3. As of February 1, 2001, the veteran's service-connected left shoulder disability presents an unusual disability picture so as to render impractical the application of the regular schedular standards. 4. The competent and probative evidence shows the veteran underwent surgery on his service-connected left shoulder disability on November 21, 2000, and required convalescence and rehabilitation for six months thereafter. CONCLUSIONS OF LAW 1. Prior to August 1, 1996, the schedular criteria for a disability rating in excess of 20 percent for service- connected residuals of left shoulder dislocation have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2007). 2. As of August 1, 1996, the schedular criteria for a disability rating in excess of 30 percent for service- connected residuals of left shoulder dislocation have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2007). 3. As of February 1, 2001, the veteran's disability associated with his service-connected residuals of left shoulder dislocation presents an unusual disability picture so as to render impractical the application of the regular schedular standards and to warrant an extra-schedular 10 percent increase. 38 C.F.R. § 3.321(b) (2007); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Floyd v. Brown, 9 Vet. App. 94-96 (1996). 4. A temporary total rating of 100 percent for convalescence is assigned from August 1, 2000, to June 30, 2001, for service-connected residuals of left shoulder dislocation. 38 C.F.R. § 4.30 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant prior to the initial decision by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that such worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. In addition, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) which are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, supra at 43-44. The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. March 21, 2008) (No. 07-1209). As noted, in Pelegrini, supra, the Court held, in part, that a VCAA notice must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. In the present case, the unfavorable RO decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the section 5103(a) notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice. Rather, the appellant has the right to a content-complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. The Board finds the RO has provided the appellant with content complying notice and proper subsequent VA process. The VCAA duty to notify was satisfied by way of a letter sent to the appellant in July 2004 that fully addressed all four notice elements. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the RO. The Board notes the VCAA duty to notify has not been satisfied with respect to the additional requirements for an increased-compensation claim as recently delineated by the Court in Vazquez-Flores, supra. The Board also notes the RO has not provided the veteran with adequate notice which complies with the Court's decision in Dingess v. Nicholson. We find, however, that the notice errors did not affect the essential fairness of the adjudication because the July 2004 letter, together with the substantial development of the veteran's claim before and after providing notice, rendered the notice errors non-prejudicial. In this regard, the Board notes that, while the July 2004 letter did not specifically conform to the requirements provided in Vazquez-Flores or Dingess, supra, the veteran was advised of his opportunities to submit additional evidence and was informed that, at a minimum, he needed to submit evidence showing his service- connected disability had increased in severity. Subsequently, SSOCs dated in October 2004, April 2006, and September 2007 notified the veteran of the evidence that had been received in support of his claim and provided him with yet an additional 60 days to submit more evidence. The SSOCs also discussed the evidence included in the record, provided him with the criteria necessary for entitlement to a higher disability rating for his service-connected left shoulder disability, and provided the reasons why his claim was being denied. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. In sum, the Board finds that the post-adjudicatory notice and opportunity to develop the case during the extensive administrative appellate proceedings which led to the RO decision, and our decision herein, did not affect the essential fairness of the adjudication and rendered the notice errors non-prejudicial. See Vazquez-Flores, supra, at 45-46. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders, supra. The Board also finds VA has satisfied its duty to assist the veteran in the development of the claim. The RO has obtained VA outpatient treatment records dated from April 1993 to August 2005, as well as private medical records dated January 2002 to January 2003. The veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. He was also afforded VA examinations in October 1994, March, July, and November 1997, April 2000, March and June 2001, September 2003, and September 2005. In addition, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Facts and Analysis Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155 (West 2002). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2007). In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Also, 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. When 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). However, staged ratings may be assigned where the symptomatology warrants different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to service connection for residuals of left shoulder dislocation was established in September 1986, and the RO assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 7804-5201, effective April 26, 1986. At that time, the RO considered service medical records (SMRs) which showed the veteran had suffered an injury to his left shoulder during service which required two subsequent surgical procedures. The SMRs also showed the veteran had limited range of motion in his left shoulder, with pain and paresthesia in the area of the surgical incision. In a November 1992 rating decision, the RO increased the veteran's disability rating to 20 percent under DC 5201, effective July 2, 1992, based upon a July 1992 VA examination report which showed the veteran's range of motion was limited to 90 degrees in flexion and abduction and 45 degrees in internal and external rotation. A temporary total rating of 100 percent was assigned from July 20, 1992, pursuant to 38 C.F.R. § 4.30, based upon evidence that the veteran underwent surgery on his service-connected left shoulder disability and required at least one month of convalescence. A schedular 20 percent rating was again assigned, from September 1, 1992. In August 1994, the veteran requested a temporary total rating of 100 percent because he had undergone an additional surgery on his service-connected left shoulder in July 1994. In an August 1994 rating decision, the RO granted a temporary total rating of 100 percent from July 21, 1994, pursuant to 38 C.F.R. § 4.30. A schedular 20 percent rating was assigned from September 1, 1994. In October 1994, the veteran was afforded a VA examination to determine the current level of severity of his service- connected left shoulder. Based on the findings of the October 1994 examination, the RO issued a rating decision in December 1994, which denied entitlement to an increased disability rating for service-connected left shoulder disability and also denied entitlement to extension of the temporary total rating of 100 percent beyond August 31, 1994. The veteran submitted a timely notice of disagreement as the December 1994 rating decision, arguing that the temporary total rating should be extended because he was still unable to use his left shoulder completely. In a June 1995 rating decision, the RO granted a temporary total rating of 100 percent from March 2, 1995, to May 1, 1995, pursuant to 38 C.F.R. § 4.30 based upon evidence showing the veteran had undergone surgical arthroscopy of the service-connected left shoulder in March 1995 and required convalescence until May 1995. In May 1995, the veteran submitted a timely substantive appeal, on VA Form 9, arguing that his service-connected disability warranted an increased rating, as well as an extension of the temporary total rating assigned from May 1995. In June 1996, the RO issued a rating decision which essentially rescinded portions of the August 1994 and June 1995 rating decisions. In the June 1996 rating decision, the RO extended the temporary total rating of 100 percent assigned from July 21, 1994 to January 31, 1994, and assigned a schedular 20 percent rating from February 1, 1995. The RO granted an additional temporary total rating of 100 percent pursuant to 38 C.F.R. § 4.30, from March 2, 1995 to August 31, 1995. A schedular 20 percent rating was assigned from September 1, 1995. In an August 1996 rating decision, the RO granted a temporary total rating of 100 percent from January 11, 1996, pursuant to 38 C.F.R. § 4.30, based upon evidence that the veteran underwent surgery in January 1996 that required convalescence until March 31, 1996. A schedular 20 percent rating was assigned from April 1, 1996. Subsequently, the veteran underwent VA examinations in March, July, and November 1997. In a December 1997 rating decision, the RO increased the veteran's disability rating to 30 percent from April 1, 1996, based upon the findings of the 1997 VA examinations. In increasing the veteran's rating, the RO noted the veteran's service-connected left shoulder disability was manifested by recurrent dislocation, marked atrophy in the anterior deltoid and pectoralis region, and pain with all movement, which the RO determined more nearly approximated the 30 percent rating under DC 5201. In that rating decision, the RO also denied entitlement to a temporary total rating beyond April 1, 1996. However, in a rating decision issued later in December 1997, the RO granted a temporary total rating of 100 percent from April 1, 1996 to July 31, 1996, based upon evidence which showed the veteran had required six months of convalescence following the January 1996 surgery. A schedular 30 percent rating was assigned from August 1, 1996, based upon the 1997 VA examinations. In an April 2000 rating decision, the RO granted a temporary total rating of 100 percent from January 25, 2000, pursuant to 38 C.F.R. § 4.30, based upon evidence that ha had undergone surgery on his service-connected left shoulder disability in January 2000 and required at least one month of convalescence. A schedular 30 percent rating was assigned from August 1, 2000. In a June 2000 rating decision, the RO granted another temporary total rating of 100 percent from August 1, 2000, to January 31, 2001, based upon a medical statement which stated that the veteran required eight months of convalescence following the January 2000 surgery. A schedular 30 percent rating was assigned from February 1, 2001. The veteran asserts that his service-connected left shoulder disability warrants a temporary total rating of 100 percent beyond February 1, 2001, and a disability rating higher than the 30 percent rating currently assigned. The veteran did not withdraw his appeal after he was notified that his disability rating had been increased to 30 percent. In accordance with AB v. Brown, 6 Vet. App. 35 (1993), the veteran will generally be presumed to be seeking the highest rating available, and it follows that a partial grant of an increased rating does not terminate an appeal. Thus, the veteran's appeal continues, and the Board will proceed to evaluate the veteran's claim to determine whether a disability rating higher than 20 percent is warranted prior to August 1, 1996, whether a rating higher than 30 percent is warranted after August 1, 1996, and whether a temporary total rating is warranted beyond January 31, 2001. The Board notes the evidence shows the veteran's service- connected disability affects his left, minor extremity. Therefore, the rating criteria provided herein will reflect the disability ratings provided for the minor extremity on the rating schedule, where appropriate. As noted, the veteran's service-connected left shoulder disability is currently rated under DC 5201, which provides a 20 percent evaluation where movement of the minor arm is limited at the shoulder level and where movement of the minor arm is limited midway between the side and shoulder level. A 30 percent evaluation is warranted where movement of the minor arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Plate I, indicates that normal flexion and abduction of the shoulder is 180 degrees, with the shoulder level measured at 90 degrees, respectively, and normal internal and external rotation of the shoulder is 90 degrees. A. Entitlement to a rating higher than 20 percent prior to August 1, 1996 At the outset, the Board notes that, during the appeal period prior to August 1, 1996, the veteran was assigned a temporary total rating of 100 percent from July 21, 1994, to January 31, 1995; March 2, 1995, to August 31, 1995; and January 11, 1996, to July 31, 1996. As noted above, the temporary total ratings correspond to the surgeries and subsequent convalescence periods the veteran underwent for his service- connected left shoulder disability. As such, the Board's analysis will be limited to the evidence dated outside of the periods for which a temporary total rating is assigned. In this regard, the Board notes there is limited medical evidence covering the period in question. Nonetheless, the pertinent evidence of record shows that, following his July 1994 surgery, the veteran continued to experience limited motion in his left shoulder, although the head of the humerus was within the glenoid fossa. See October 1994 VA examination report. At the October 1994 VA examination, the veteran demonstrated forward elevation (flexion) to 115 degrees, abduction to 105 degrees, and internal and external rotation to 30 degrees. In January 1995, there was no evidence of a rotator cuff tear or dislocation and the relationship between the veteran's left humeral head and glenoid was well-maintained. See January 1995 radiology reports. There is no medical evidence which documents the veteran's service-connected left shoulder disability during February 1995 and there is no other evidence of record which shows he manifested symptoms that more nearly approximated limitation of motion to 25 degrees from the side to warrant a 30 percent rating under DC 5201, prior to August 1, 1996. Likewise, the evidence dated after the veteran's convalescence period following the March 1995 surgery does not contain findings which show the veteran manifested symptoms to warrant an increased rating to 30 percent under DC 5201. However, a December 1995 X-ray report showed the veteran's acromioclavicular joint was normal but had minimal degenerative changes in the gleno-humeral joint. In this regard, the Board notes that under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis, when substantiated by X- rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note 1 accompanying DC 5003 states that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based upon limitation of motion. Note 2 states that the 20 percent and 10 percent ratings based on X-ray findings will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024. In this case, although the veteran's range of motion at the October 1994 VA examination was not of such severity to warrant a compensable rating under DC 5201, the 20 percent rating assigned for the period prior to August 1, 1996, is based upon the limitation of motion he manifested at the July 1992 VA examination. Therefore, a separate 10 percent rating based upon arthritis manifested by limited motion under DC 5003 is not warranted as the veteran is currently receiving a 20 percent rating for limitation of motion. The Board has considered the veteran's left shoulder disability under all other potentially applicable diagnostic codes to determine whether he can be rated higher than 20 percent prior to August 1, 1996. However, the veteran has never been shown to have ankylosis of the scapulohumeral articulation, other impairment of the humerus, or impairment of the clavicle or scapula. Therefore, DCs 5200, 5202, and 5203 are not for application in this case. The Board has also considered whether the veteran could be assigned a separate rating based on the surgical scar on his left shoulder. The October 1994 VA examination report reflects the veteran had a six inch incisional scar on the anterior aspect of his left shoulder, which the examining physician noted was "sensitive" to pressure palpitation. There is no other evidence of record, dated during the time period in question, which contains any clinical findings of tenderness or pain associated with the scar, and the veteran is not shown to have complained of symptomatology associated with the scar. See VA outpatient treatment records dated from August 1994 to August 1996. In this regard, although the October 1994 VA examination report reflects that the veteran's scar was sensitive, there are no other clinical findings which show the scar is superficial, unstable, or causes limited motion in his left shoulder. Therefore, the preponderance of the evidence is against a finding that a separate compensable evaluation is warranted. See 38 C.F.R. § 4.118, DC 7803 to 7805; see also Esteban v. Brown, 6 Vet. App. 259, 261 (2005). The Board has also considered whether a separate rating is warranted for any neurological impairment associated with the veteran's service-connected disability. However, the preponderance of the evidence shows the veteran's sensation and pulses, and reflexes are intact. See VA outpatient treatment records dated April 1993 to August 2005. Therefore, the Board finds there is no basis to award a separate disability rating for a neurological impairment associated with the veteran's service-connected left shoulder disability. The Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. In evaluating the veteran's claim under DeLuca, supra, the Board notes that the evidence dated outside of the periods for which a temporary total rating is assigned does not contain findings which show the veteran's functional limitation due to pain. Nonetheless, the Board notes that, at the October 1994 VA examination, the veteran's range of motion was limited by pain. However, because the veteran is receiving a 20 percent rating based upon limitation of motion under DC 5201, and the findings of the October 1994 VA examination do not warrant the 20 percent rating assigned, the Board finds that any additional functional limitation the veteran experiences in his left shoulder is contemplated in the rating current assigned. As a result, there is insufficient evidence to support a rating in excess of 20 percent based on functional loss due to pain. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. In summary, the Board finds that the preponderance of the evidence is against the grant of an evaluation in excess of 20 percent for service-connected residuals of left shoulder dislocation, prior to August 1, 1996. B. Entitlement to a rating higher than 30 percent from August 1, 1996 As an initial matter, the Board notes that, as of August 1, 1996, the veteran is receiving the highest possible disability rating of 30 percent available under DC 5201. In this regard, the Board notes that the veteran has never been shown to demonstrate limited motion in his left arm to 25 degrees from the side to warrant the 30 percent rating currently assigned. However, the pertinent evidence of record shows that, following the convalescence period after his January 1996 surgery, the veteran continued to demonstrate limited motion with complaints of pain. See October 1996 VA outpatient treatment record; March and July 1997 VA examination reports. Significantly, the evidence also shows the veteran has marked atrophy in the anterior deltoid and pectoralis region. See November 1996 and October 1997 outpatient treatment records; July 1997 VA examination report. In increasing the veteran's disability rating to 30 percent from August 1, 1996, the RO considered the evidence which shows the veteran continued to experience recurrent dislocations in his left shoulder with marked muscle atrophy and complaints of pain, which the RO determined more nearly approximated the level of disability contemplated by the 30 percent rating under DC 5201. As the veteran is receiving the highest possible disability rating under DC 5201, the Board will consider his service- connected left shoulder disability under all other potentially applicable diagnostic codes. In this regard, the Board notes the only diagnostic codes that will assist the veteran in obtaining a disability rating higher than 30 percent are DC 5200, for ankylosis of scapulohumeral articulation, and DC 5202, for other impairment of the humerus. Under DC 5200, a 30 percent rating is warranted where there is intermediate ankylosis of scapulohumeral articulation in the minor extremity between favorable and unfavorable. A 40 percent rating is warranted where there is unfavorable ankylosis of scapulohumeral articulation, with abduction limited to 25 degrees from the side in the minor extremity. A note to DC 5200 states that ankylosis of scapulohumeral articulation is where the scapula and humerus move as one piece. Under DC 5202, a 20 percent rating is warranted where there is recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements. A 40 percent rating is warranted where there is fibrous union of the humerus; a 50 percent rating is warranted where there is nonunion (false flail joint) of the humerus; and a 60 percent rating is warranted where there is loss of the humerus head (flail joint). In evaluating the veteran's claim, the Board notes the pertinent evidence does not contain any findings which show that his left scapula and humerus move as one piece, with abduction limited to 25 degrees from the side, in order to warrant the 40 percent rating under DC 5200. Similarly, while the preponderance of the pertinent evidence shows the veteran has recurrent dislocations in his left shoulder with frequent episodes, the evidence shows that the humeral head and glenoid fossa are intact with no evidence of fibrous union, nonunion, or loss of the humeral head. See September 1996 MRI report; VA X-ray reports dated in March 1997, April 2002, and August 2005. Therefore, a rating higher than 30 percent is not warranted under DCs 5200 or 5202 or any other diagnostic code on the rating schedule. In this regard, we note the veteran continues to have degenerative changes in his left shoulder. However, DC 5200, for degenerative arthritis, is not for application, as his limitation of motion is rated 30 percent disabling under DC 5201. The Board has also considered whether an increased rating is warranted for any scars associated with the veteran's service-connected left shoulder disability. In this regard, the Board notes that the veteran's scar is occasionally reported as tender during the time period in question; however, the evidence that describes the veteran's scar as tender does not contain the additional clinical findings needed to properly evaluate the veteran's claim under the rating criteria. Specifically, there is no objective evidence of record which shows the veteran's scar is superficial, unstable, or causes limited motion. See VA examination reports dated March and July 1997; April 2001 VA outpatient treatment record. Instead, the most recent medical evidence of record, the September 2005 VA examination report, reflects that the veteran has two scars on his left shoulder measuring 18 and 12 cms, which are not adherent to deep tissue, do not ulcerate, and are nontender. See also September 2006 addendum to September 2005 VA examination report. Therefore, because the September 2005 VA examination report contains the most comprehensive evidence regarding the veteran's left shoulder scars, the Board considers the September 2005 VA examination report and September 2006 addendum to be the most competent and probative evidence in this regard. As the most competent and probative evidence of record does not contain any subjective or objective evidence of symptomatology associated with the scars, DCs 7801 to 7805 are not for application in this case. The Board has also considered whether a separate rating is warranted for any neurological impairment associated with the veteran's service-connected disability during the time period in question. However, the preponderance of the evidence shows the veteran's sensation and pulses, and reflexes remain intact. See VA outpatient treatment records dated April 1993 to August 2005. Therefore, a separate disability rating for a neurological impairment associated with the veteran's service-connected left shoulder disability is not warranted. In evaluating the veteran's claim under DeLuca, supra, the Board again notes the veteran has consistently complained of pain while demonstrating movement of his left shoulder. At the March 2001 VA examination, motion was significantly limited to 10 degrees in flexion and abduction, and zero degrees in internal and external rotation. The examining physician noted the veteran had virtually no motion in his left shoulder and stated that the DeLuca criteria were inapplicable, as the veteran was already at his worst. At the most recent VA examination in September 2005, the veteran was only able to demonstrate flexion and abduction to 80 degrees, with any additional motion causing dislocation of the shoulder. The veteran was unable to demonstrate internal and external rotation as his shoulder would dislocate with any form of movement in these directions. The September 2005 examiner noted the veteran's range of motion was limited by pain and severe instability, in addition to the dislocations. Although the veteran clearly has additional functional limitation due to pain, the Board is unable to grant a schedular rating higher than 30 percent on this basis because the veteran is currently receiving the highest possible disability rating under the applicable diagnostic code, e.g., DC 5201. However, as discussed below, the Board finds the veteran's service-connected left shoulder disability warrants an increased extraschedular rating. The governing criteria for the award of an extra-schedular rating comstitute a finding that the case presents such an exceptional or unusual disability picture, with such related factors as marked inference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. In these instances, the field station is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extra- schedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). Review of the evidence shows that, in its September 2003 Remand, the Board requested the RO to schedule the veteran for a VA examination to obtain, among other things, an opinion whether the veteran's left shoulder disability is productive of interference with employment. The examiner who conducted the September 2005 VA examination noted the veteran was working as a police officer but was no longer working in that capacity, but was looking for a desk job. The examiner noted that the veteran's biggest problem is the frequent dislocations, which he reported would dislocate approximately two to three times a week, requiring him to relocate it. In September 2006, the VA examiner stated that the veteran obviously could not hold a job requiring intense labor, but that a sedentary job would be feasible. After carefully reviewing the evidence, the Board finds this case presents an unusual disability picture so as to render impractical the application of the regular schedular standards. In this regard, the Board notes that the September 2005 examination report reflects the veteran was unable to maintain his employment as a police officer and, although the evidence reflects he was looking for a sedentary job, the evidence of record does not show that he was successful in finding such employment. In addition, the evidence clearly shows he suffers from recurrent dislocations in his left shoulder which require that he present for treatment in order to relocate the shoulder. In this context, the Board notes the evidence shows that, from January 2001 to January 2006, the veteran presented to the emergency room at least 15 times for treatment of left shoulder dislocation. The veteran has reported that his shoulder dislocates almost every day and he can usually reduce the shoulder himself; however, the evidence clearly shows the veteran's left shoulder disability requires occasional outpatient medical treatment in addition to the numerous surgeries he has undergone to treat his left shoulder. Moreover, the most recent medical evidence of record shows the veteran suffers repeated dislocation in his left shoulder with certain movement. At the September 2005 VA examination, the veteran's flexion and abduction were limited and he was unable to demonstrate internal and external rotation as his shoulder would dislocate at any form of movement in those directions. In this regard, the Board notes the evidence shows the veteran's physicians have recommended additional surgery on his left shoulder, but the veteran has declined any additional surgical treatment. See May 2001 VA outpatient treatment record. In sum, the Board finds the preponderance of the evidence shows the veteran's service-connected left shoulder disability causes a combination of significant inference with employment and necessitated frequent hospitalization, with the prospect of further hospitalization. As a result, after resolving reasonable doubt in favor of the veteran, the Board finds the preponderance of the evidence supports the grant of a separate 10 percent rating, effective February 1, 2001, for service-connected residuals of left shoulder dislocation, on an extra-schedular basis. As noted, there is no schedular basis on which to grant a disability rating higher than 30 percent, and the Board finds the evidence presents an unusual disability picture to render impractical the application of the regular schedular standards. See Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Floyd v. Brown, 9 Vet. App. 94-96 (1996). The Board finds the separate 10 percent extra- schedular rating is warranted no earlier than February 1, 2001, as the evidence does not show significant inference with employment or frequent hospitalization to warrant an extra-schedular rating prior to that date. In summary, and for the reasons and bases set forth above, the Board finds the preponderance of the evidence supports the grant of a separate 10 percent extra-schedular rating, but no higher, for service-connected residuals of left shoulder dislocation, no earlier than February 1, 2001. All reasonable doubt has been resolved in the veteran's favor. See Gilbert, 1 Vet. App. at 55. C. Entitlement to a temporary total rating of 100 percent beyond January 31, 2001 As noted, in June 2000, the RO granted a temporary total rating of 100 percent from August 1, 2000, to January 31, 2001, based upon a medical statement which stated that the veteran required eight months of convalescence following the January 2000 surgery on his left shoulder. A schedular 30 percent rating was assigned from February 1, 2001. The veteran asserts that the temporary total rating should be extended beyond January 31, 2001, because, although he has not undergone additional surgery on his left shoulder since 2001, a medical professional has stated that he required an extra period of convalescence beyond February 2001. In support of his claim, the veteran points to a December 2000 medical statement from his treating physician. The veteran testified that his physician told him that it would be at least 12 to 18 months after the surgery until he would be fully able to actually do what he was supposed to do with his left shoulder. Review of the record reveals that, following the veteran's January 2000 surgery, the veteran's physician, Dr. G.Y. submitted a written statement in May 2000, which stated that, due to the severity of the veteran's left shoulder in May 2000, he would require convalescence and rehabilitation for eight months. The evidence reflects the veteran underwent an additional operation on his left shoulder in November 2000. In December 2000, the veteran submitted a written statement from his physician, Dr. J.D., which states that the veteran would need rehabilitation and convalescence for six months. After carefully reviewing the evidence of record, the Board finds that the temporary total rating of 100 percent assigned under 38 C.F.R. § 4.30 should be extended through June 2001, as the December 2000 medical statement reflects that the veteran required six months of convalescence after his November 2000 surgery. Although the veteran has testified that his physician told him that he would require 12 to 18 months of convalescence following the November 2000 surgery, there is no medical evidence of record which shows that a physician prescribed or the veteran required 12 to 18 months of convalescence and/or rehabilitation following the November 2000 surgery. Therefore, the temporary total rating of 100 percent should be effective from August 1, 2000, to June 30, 2001. The extra-schedular 40 percent rating assigned herein shall be effective from the expiration of the temporary total rating, on July 1, 2001. All reasonable doubt has been resolved in the veteran's favor. See Gilbert, 1 Vet. App. at 55. ORDER Prior to August 1, 1996, entitlement to a disability rating higher than 20 percent for service-connected residuals of left shoulder dislocation is denied. As of August 1, 1996, entitlement to a disability rating higher than 30 percent for service-connected residuals of left shoulder dislocation is denied. As of February 1, 2001, a separate 10 percent extra-schedular rating is granted for service-connected residuals of left shoulder dislocation, subject to the laws and regulations governing the payment of monetary awards. A temporary total convalescence rating of 100 percent for service-connected residuals of left shoulder dislocation is extended to June 31, 2001, subject to the laws and regulations governing the payment of monetary awards. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs