Citation Nr: 1301371 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-26 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right upper extremity disability, as secondary to service-connected disability. 2. Entitlement to an increased rating for service-connected recurrent dislocations, right shoulder, to include the issue of the propriety of a reduction from 20 percent to 10 percent, with an effective date of March 1, 2010. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to March 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2009, the RO denied a claim for service connection for "arthritis, nerve damage, right hand and right arm," claimed as secondary to service-connected disability. In December 2009, the RO reduced the Veteran's evaluation for his service-connected right shoulder disability from 20 percent to 10 percent, with an effective date of March 1, 2010. FINDINGS OF FACT 1. The Veteran does not have a right upper extremity disability that was caused his service, or which was caused or aggravated by a service-connected disability. 2. The RO's December 2009 RO rating decision, which reduced the Veteran's rating for his service-connected right shoulder disability from 20 percent to 10 percent, effective March 1, 2010, did not consider required regulatory provisions and denied the Veteran due process. 3. The Veteran's service-connected right shoulder disability has been shown to be productive of complaints of pain, and some limitation of motion, but not shoulder motion limited to 25 degrees from his side, a fibrous union of the right humerus, or ankylosis of right scapulohumeral articulation. CONCLUSIONS OF LAW 1. A right upper extremity disability was not caused by service, and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The RO's December 2009 RO rating decision, which reduced the Veteran's rating for his service-connected right shoulder disability from 20 percent to 10 percent, is void ab initio, and the criteria for restoration of the 20 percent rating for this condition are met at all times since March 1, 2010. 38 C.F.R. §§ 3.105, 3.344 (2012). 3. The criteria for a rating in excess of 20 percent for the Veteran's service-connected right shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5200, 5201, 5202 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran asserts that he is entitled to service connection for a right upper extremity disability as secondary to service-connected disability. Specifically, he argues that he has arthritis, and nerve damage, of the right hand and arm, due to his service-connected right shoulder disability. In order to construe the issue broadly, the Board has recharacterized the disability in issue as "a right upper extremity disability," which is not intended to include the already-service-connected right shoulder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for arthritis, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The Veteran's service treatment reports show that in 1976, he was treated for complaints of right arm weakness, with a history of more than four right shoulder dislocations in the past six years. The diagnosis was chronic right shoulder separations. The Veteran's separation examination report, dated in March 1976, shows that his upper extremities were clinically evaluated as normal. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1982 and 2012. A July 1982 VA examination report notes that the Veteran was working as a warehouseman, and that his right shoulder was asymptomatic. Private treatment reports, dated in 1989 and 2001, show treatment for right shoulder symptoms, with no mention of right hand or arm symptoms. VA progress notes show the following: in December 1989, the Veteran was noted to complain of neck pain after he was in an MVA (motor vehicle accident). X-rays of the cervical spine showed degenerative disc disease at C-5. In March 2005, the Veteran was treated for complaints of right shoulder symptoms after lifting an air conditioner motor. He also reported tingling of the first three fingers of the right hand. The assessment was that his pain was likely due to a rotator cuff injury, with some symptoms of a brachial plexus injury, possibly from stretching. An April 2005 EMG (electromyogram) report indicates that the study was preformed to evaluate complaints of right hand numbness. The report contains an impression of "normal study," "limited study secondary to patient requesting to stop," and right shoulder rotator cuff tendonitis/possible tear. Thereafter, the Veteran received ongoing treatment for right shoulder symptoms. An August 2005 report notes that his right hand grip strength was 62 pounds, and that his left hand grip strength was 103 pounds. The assessments included right shoulder/rotator cuff impingement and tendonitis. A January 2006 VA examination report for the joints contains a diagnosis of recurrent dislocation of the right shoulder; the report does not note a disorder of the right arm or right hand. An X-ray report for the cervical spine noted osteophytes at C5-C6, and a decrease in lordosis. A VA surgical report shows that in September 2006, the Veteran underwent a cervical rim decompression and distal clavicle resection, with a postoperative diagnosis of right shoulder impingement syndrome. A September 2007 VA examination report for the joints contains diagnoses of impingement syndrome of the right shoulder, arthroscopic resection of the distal clavicle, right arthroscopic acromioplasty, subacromial decompression, and chronic pain secondary to impingement syndrome and surgery; the report does not note a disorder of the right arm or right hand. A July 2009 VA joints examination report shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran complained of right hand and arm pain with associated numbness, which seemed to come from the right side of his neck into the right trapezius, to the shoulder down the arm, and into the ulnar two fingers of the right hand. He also reported right-sided neck pain, and that his right hand grip strength was reduced, causing difficulties that included difficulty driving. He stated that his symptoms started in about March 2009. The assessments were cervical degenerative disease with radicular symptoms, right hand degenerative disease, and "right shoulder dislocation (service-connected)." The examiner concluded: This Veteran is currently service-connected for a right shoulder condition. The Veteran's current complaint of nerve damage is not a result of his service-connected right shoulder dislocation. The service medical record is silent on the issue of neuropathy, radiculopathy or nerve damage to the right upper extremity. The Veteran started having this problem in approximately March of 2009. It appears that the condition in more likely than not due to a cervical spine problem, which is not related to the right shoulder dislocation. There is nothing in the current orthopedic literature demonstrating that a shoulder dislocation will cause a cervical radiculopathy or an intrinsic cervical condition. The Veteran's complaints of arthritis in the right hand are not caused by or a result of his right shoulder dislocation. The service medical record is silent on any complaints of hand pain or arthritic condition of the hands. There is nothing in the current orthopedic literature demonstrating that a right shoulder dislocation will cause arthritis into the hand or will cause an intrinsic condition in the right hand. The Board finds that the claim must be denied. The Veteran has not asserted, and there is no evidence to show, that a right upper extremity disability was incurred during service. Therefore, a chronic condition is not shown during service. See 38 C.F.R. § 3.303(b). The Veteran has reported that his symptoms began in 2009, this is many years after separation from active duty, and there is no competent evidence to show that a right upper extremity disorder is related to his service, or to show that arthritis of the right upper extremity was manifested to a compensable degree within one year of separation from active duty service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran's argument is that he has a right upper extremity disability due to his service-connected right shoulder disability. However, there is no competent opinion in support of the claim. The only competent opinion of record is found in the July 2009 VA examination report, and this opinion weighs against the claim. This opinion is considered to be highly probative, as it is shown to have been based on a review of the Veteran's claims files, and it is accompanied by a sufficient explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this regard, an etiological opinion should be viewed in its full context, and not characterized solely by the medical professional's choice of words. See Lee v. Brown, 10 Vet. App. 336, 338 (1997). Here, the opinion is clearly intended to foreclose the possibility of both causation and aggravation. 38 C.F.R. § 3.310. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With regard to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Although a lay person may be competent to report the etiology of a disability, the disability at issue is not the type of disorder which is susceptible to lay opinion concerning etiological cause. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The issue on appeal is based on the contention that a right upper extremity disability was caused or aggravated by a service-connected disability. In this case, the Veteran has not asserted that he has had ongoing symptomatology since his service, and the Board has determined that the aforementioned VA opinion is highly probative evidence against the claim. Given the foregoing, the Board finds that the post-service medical evidence outweighs the Veteran's contention to the effect that he has the claimed condition that is related to a service-connected disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. Increased Rating, to Include Propriety of Reduction The Veteran asserts that he is entitled to an increased rating for his service-connected recurrent right shoulder dislocation, to include the issue of entitlement to a restoration of the 20 percent rating for his service-connected right shoulder disability. The Board will first adjudicate the issue of the propriety of the reduction from 20 percent to 10 percent in December 2009. A. Propriety of Reduction In December 2004, the Board granted service connection for a right shoulder disability manifested by recurrent dislocations. The Board's decision was effectuated in a January 2005 RO decision, which assigned a 10 percent rating. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012). In March 2006, the RO increased the Veteran's rating to 20 percent, with an effective date of March 10, 2005. In December 2006, following right shoulder surgery, the RO assigned a temporary total (100 percent) rating based on a period of hospitalization over 21 days, for the period from September 6, 2006, to November 30, 2006. See 38 C.F.R. § 4.30 (2012). The RO assigned a 20 percent rating effective as of December 1, 2006. In March 2009, the Veteran filed a claim for an increased rating. In September 2009, the RO notified the Veteran that it proposed to reduce his rating to 10 percent. An associated "proposed rating decision," also dated in September 2009, essentially stated that the basis for the proposed reduction was that recent VA reports indicated that his right shoulder symptoms warranted no more than a 10 percent rating. In December 2009, the RO decreased the Veteran's evaluation for his right shoulder disability to 10 percent, with an effective date of March 1, 2010. The issue is whether the RO's December 2009 reduction in the disability rating from 20 percent to 10 percent, effective March 1, 2010, was legally proper. As previously stated, in March 2005, the RO increased the Veteran's rating to 20 percent, with an effective date of March 10, 2005. Thus, at the time of the RO's December 2009 rating decision, the Veteran's 20 percent rating had not been in effect for more than 5 years. The provisions of paragraphs § 3.344 (a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. See 38 C.F.R. § 3.344(c) (2012). The United States Court of Appeals for Veterans Claims (Court) stated in Lehman v. Derwinski, 1 Vet. App. 339 (1991) that use of parentheses suggests that the five year time frame is merely a guideline, not a mandate; and that the regulation is devoid of any language which could be construed as intended to establish an inflexible mandatory minimum time period. In addition, although the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) apply only to reductions of ratings that have continued for long periods at the same level, the Court has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). The Brown case articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability." Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. It appears that the procedural safeguards have been met. Specifically, when a reduction in evaluation is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). In this case, the RO's September 2009 notification to the Veteran of the proposed reduction, and the accompanying September 2009 "proposed rating decision," both indicated that the Veteran's rating for his right shoulder disability was to be reduced to 10 percent, and the reasons for the proposed reduction were discussed. However, a review of the RO's December 2009 decision, the June 2010 statement of the case (SOC), and the January 2012 supplemental statement of the case (SSOC), shows that the RO appears to have essentially analyzed the issue of reduction of the 20 percent rating just as it would a claim for an increased rating. Specifically, although the SOC listed the provisions at 38 C.F.R. §§ 3.105 and 3.344, the RO's analyses in its December 2009 rating decision, and the SOC, only discussed the criteria at Diagnostic Codes 5003 and/or 5201. The RO completely failed to discuss the provisions of 38 C.F.R. § 3.344 in its analysis. Of particular note, its analysis did not discuss the issue of whether there was "an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work." Id.; Brown. The SSOC did not discuss the reduction issue whatsoever. In summary, it does not appear that the RO's analysis was in compliance with 38 C.F.R. § 3.344 and Brown. The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Lehman v. Derwinski, 1 Vet. App. 339 (1991); Peyton v. Derwinski, 1 Vet. App. 282 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992); Brown v. Brown, 5 Vet. App. 413 (1993); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant's rating without observing applicable laws and regulations the rating is void ab initio and the Court will set aside the decision). Since the rating decision that accomplished the reduction of the 20 percent evaluation for the Veteran's service-connected right shoulder disability did not properly apply the provisions of 38 C.F.R. § 3.344, the reduction is void. The appropriate remedy in this case is a restoration of the 20 percent evaluation effective on the date of the reduction. See Hayes, 9 Vet. App. at 73 (improper reduction reinstated effective date of reduction). The Board finds that the Veteran's 20 percent evaluation was improperly reduced, that the reduction of the evaluation is void ab initio, and that the 20 percent evaluation for the Veteran's right shoulder disability should be restored. Accordingly, the Board finds that restoration of the 20 percent evaluation for the Veteran's right shoulder disability, effective March 1, 2010, is warranted. B. Increased Rating In March 2009, the Veteran filed his claim, asserting that he is entitled to an increased rating for his service-connected right shoulder disability. In September 2009, the RO implicitly denied the claim when it reduced his rating from 20 percent to 10 percent. The Veteran has appealed. Given the Board's determination that the RO's reduction of the Veteran's rating from 20 percent to 10 percent was void ab initio, a 20 percent rating is considered to have been in effect during the entire time period in issue, i.e., since March 2008. See 38 C.F.R. § 3.400(o)(2) (2012). As for the history of the shoulder disability in issue, see 38 C.F.R. § 4.1 (2012), the Veteran's service treatment reports show a number of treatments for shoulder symptoms, with a reported pre-service history of multiple dislocations. Private treatment reports, dated in 1989 and 2001, following separation from service, show treatment for right shoulder symptoms. VA progress notes show that in March 2005, the Veteran was treated for complaints of right shoulder symptoms after lifting an air conditioner motor. The assessment was that his pain was likely due to a rotator cuff injury, with some symptoms of a brachial plexus injury, possibly from stretching. Other assessments included right shoulder/rotator cuff impingement and tendonitis. A VA surgical report shows that in September 2006, the Veteran underwent a cervical rim decompression and distal clavicle resection, with a postoperative diagnosis of right shoulder impingement syndrome. A September 2007 VA examination report for the joints contains diagnoses of impingement syndrome of the right shoulder, arthroscopic resection of the distal clavicle, right arthroscopic acromioplasty, subacromial decompression, and chronic pain secondary to impingement syndrome and surgery. Disability evaluations are determined by comparing the veteran's symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. The RO has evaluated the Veteran's right shoulder disability under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5201-5203. See 38 C.F.R. § 4.27 (2012) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). This hyphenated diagnostic code may be read to indicate that limitation of arm motion is the service-connected disorder, and it is rated as if the residual condition is impairment of the clavicle or scapula under 38 C.F.R. § 4.71a , DC 5203. The Veteran's left hand is shown to be his dominant hand. See e.g., July 2009 VA examination report. Under 38 C.F.R. § 4.71a, DC 5200, a 30 percent evaluation is warranted for: scaulohumeral articulation, ankylosis of: Intermediate between favorable and unfavorable (minor extremity). Under 38 C.F.R. § 4.71a, DC 5201, a 30 percent evaluation is warranted for: Arm, limitation of motion of: To 25 degrees from side (minor extremity). Under 38 C.F.R. § 4.71a, DC 5202, a 40 percent evaluation is warranted for: humerus, other impairment of: fibrous union of (minor extremity). The standardized description of joint measurements is provided in Plate I under 38 C.F.R. § 4.71. These descriptions indicate that normal forward flexion of the shoulder is from 0 to 180 degrees, normal abduction of the shoulder is from 0 to 180 degrees, normal external rotation is from 0 to 90 degrees, and normal internal rotation is from 0 to 90 degrees. The medical evidence dated during the time period in issue consists of VA and non-VA reports. VA progress notes, dated in May 2008, and April 2009, show that the Veteran had abduction of the right shoulder to 120 degrees. A VA progress note, dated in October 2009, shows that the Veteran had abduction of the right shoulder to 140 degrees. A January 2010 VA progress note shows that the Veteran's right shoulder had flexion to 85 degrees, extension WNL (within normal limits), abduction to 85 degrees, and external and internal rotation WNL. A March 2010 VA progress note shows that the Veteran's right shoulder had flexion to 175 degrees, extension WNL, abduction to 175 degrees, and external and internal rotation WNL. A QTC examination report, from Dr. M.D., dated in July 2009, shows that the Veteran's right shoulder had flexion to 170 degrees, abduction to 170 degrees, and external and internal rotation to 70 degrees. A report from Silver Health Center, dated in April 2012, shows that the Veteran's right shoulder had flexion to 85 degrees, abduction to 145 degrees, extension to 30 degrees, adduction to 40 degrees, external rotation to 75 degrees, and internal rotation to 70 degrees. The Board notes that in April 2012, the RO attempted to schedule the Veteran for an examination, however, the Veteran canceled his examination. The Board finds that the criteria for a rating in excess of 20 percent under DC 5201 have not been met. The aforementioned ranges of motion do not show that motion in his right shoulder is limited to 25 degrees from his side. In summary, he has not shown that his flexion or abduction in the right arm more nearly approximates to 25 degrees so as to warrant a rating in excess of 20 percent. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the criteria for a rating in excess of 20 percent under DC 5201 have not been met. A higher evaluation is not warranted under any other diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In this case, there is no evidence to show ankylosis of scapulohumeral articulation, or fibrous union of the humerus. The criteria for a rating in excess of 20 percent under DCs 5200 and 5202 are therefore not met. Finally, the Board has also considered the functional impairment which can be attributed to pain and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see also VAGCOPPREC 9-98, 63 Fed. Reg. 56704 (1998). An evaluation in excess of 20 percent is not warranted on the basis of additional functional loss due to pain and weakness. VA progress notes show multiple complaints of shoulder pain, to include pain on motion, and medications that included Etodolac. A March 2009 X-ray report contains impressions of no acute fracture, and no significant interval change since April 2007. Between January and March of 2010, he had physical therapy. In January 2010, he was noted to have shoulder strength of between 3-/5 and 3/5. In March 2010, he was noted to have shoulder strength of 4/5 in all ranges of motion. He was noted to be improved, and to be independent with all activities, but to still complain of pain. The July 2009 QTC examination report shows that the Veteran complained of pain, weakness, giving way, stiffness, swelling, heat, instability, locking, fatigability, and lack of endurance. He was noted to be taking Etodolac, 400 milligrams (mg.), bid (twice daily). He reported severe flare-ups three times a day, lasting up to two hours, caused by increased activity. The report indicates that there were no current dislocations, but that the Veteran reported recurrent subluxations, which he described as a "sensation of slipping." The report indicates the following: there is no ankylosis. There was pain on motion. There was fatigue, weakness, lack of endurance and incoordination. There was no edema, effusion, instability, redness, or heat. There was tenderness, abnormal movement, and guarding of movement. The diagnosis was recurrent dislocations, right shoulder, status post right shoulder arthroscopic surgery with residual portal scars. The July 2009 VA examination report shows that the Veteran was examiner in association with his service connection claim, discussed supra. However, the report notes that the Veteran reported that he was not working, but that his student life was affected because he had difficulty carrying his backpack on his right side. The report notes that there were no braces or orthopedic devices used. A report from Silver Health Center, dated in April 2012, notes that the Veteran began treatment in January 2012. The report shows that the Veteran complained of symptoms that included shoulder pain, fatigue, tension, and muscle spasm. There was limitation of range of motion due to pain. Coordination was within normal limits. Motor examination was +5/+5 for the upper extremities with no pain. The Veteran was noted to have progressed, to feel better, and to have increased range of motion, although he was still limited on what he can do and is always guarding his movements. It was recommended that he receive assistance increasing his range of motion and that he "aggressively increase exercises." He was provided with a home exercise program. In summary, when the ranges of motion in the Veteran's right shoulder are considered together with the evidence (or lack thereof) of such symptoms as weakness, laxity, incoordination, atrophy, or other impairment, the Board finds that the record does not show that the Veteran's functional loss due to his service-connected right shoulder disability impairs him to such a degree that he has the equivalent of the criteria as required for a rating in excess of 20 percent for the right shoulder. 38 C.F.R. § 4.71a; DeLuca. The Board has considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against the claim, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim for an increased rating for a right shoulder disability must be denied. Finally, the Board finds that the Veteran's service-connected right shoulder disability does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's right shoulder disability is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. III. Veterans Claims Assistance Act of 2000 (VCAA) In this case, as the Board has fully granted the Veteran's claim for restoration of the 20 percent rating for his right shoulder disability, the Board finds that a detailed discussion of the VCAA is unnecessary as to the restoration issue. Any potential failure of VA in fulfilling its duties to notify and assist the Veteran is essentially harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). With regard to the claims for service connection, and an increased rating, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in April 2009. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded examinations, and an etiological opinion has been obtained. The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for a right upper extremity disability is denied. Restoration of the 20 percent disability evaluation for service-connected right shoulder disability is granted effective March 1, 2010, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 20 percent for service-connected recurrent dislocations, right shoulder, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs