Citation Nr: 1303157 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 07-13 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a disability of the left upper extremity characterized by numbness, tingling, and loss of strength in the left hand and arm, to include as secondary to service-connected disability. 2. Entitlement to increased initial ratings for status post anterior dislocation of the left shoulder with surgery, currently evaluated as 10 percent disabling from October 29, 2004 to September 27, 2007; 100 percent disabling under 38 C.F.R. § 4.30 from September 28, 2007 to March 31, 2008; 10 percent disabling from April 1, 2008 to March 26, 2009; and 20 percent disabling since March 27, 2009. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from March 26, 2002 to April 10, 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2005 (left shoulder) and October 2006 (left upper extremity) decisions of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO). In June 2012, the Veteran told a VA examiner that he had not worked for three years, had tried multiple jobs that involved labor but could not tolerate them, and did not have the educational training to get non labor jobs. The Board finds that a claim of entitlement to a TDIU has been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). Under Rice, the Board has jurisdiction over the Veteran's TDIU claim and, for the purpose of clarity, has separately captioned the issue on the first page of this decision. A Board hearing was held before the undersigned in March 2011. A transcript of the hearing is of record. At the hearing, the Veteran was granted a 30-day abeyance period for the submission of additional evidence to support his claims. The Veteran thereafter submitted additional evidence with a waiver of RO review. In March 2012, the Board remanded these issues for further evidentiary development. The requested development was completed, and the case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The evidence in this case reflects that the Veteran's disability of the left upper extremity characterized by numbness, tingling, and loss of strength in the left hand and arm is unrelated to his military service and service-connected status post anterior dislocation of the left shoulder with surgery. 2. From October 29, 2004 to September 27, 2007, the Veteran's status post anterior dislocation of the left shoulder with surgery was manifested by limitation of left arm motion to shoulder level or below, but greater than 25 degrees from side. 3. From April 1, 2008 to July 14, 2008, the Veteran's status post anterior dislocation of the left shoulder with surgery was manifested by limitation of left arm motion to less than 25 degrees from side. 4. Since July 15, 2008, the Veteran's status post anterior dislocation of the left shoulder with surgery has been manifested by limitation of left arm motion to shoulder level or below, but greater than 25 degrees from side. 5. Since October 29, 2004, the Veteran's status post anterior dislocation of the left shoulder with surgery has been manifested by recurrent dislocations with guarding. 6. The Veteran's service-connected status post anterior dislocation of the left shoulder with surgery does not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. Service connection for a disability of the left upper extremity characterized by numbness, tingling, and loss of strength in the left hand and arm is not warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for a 20 percent disability rating from October 29, 2004 to September 27, 2007 for limitation of motion status post anterior dislocation of the left shoulder with surgery has been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2012). 3. The criteria for a 30 percent disability rating from April 1, 2008 to July 14, 2008 for limitation of motion status post anterior dislocation of the left shoulder with surgery has been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2012). 4. The criteria for a 20 percent disability rating for limitation of motion status post anterior dislocation of the left shoulder with surgery has been met since July 15, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2012). 5. The criteria for a separate initial 20 percent disability rating for recurrent dislocations status post anterior dislocation of the left shoulder with surgery under Diagnostic Code 5202 has been met since October 29, 2004. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5202 (2012). 6. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the Agency of Original Jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. Collectively, November 2004, March 2006, October 2008, and July 2010 letters provided the Veteran with notice regarding what information and evidence was needed to substantiate his claims for service connection for a left shoulder disability and left upper extremity disability (to include on a secondary basis) and his claim for a higher initial rating for a left shoulder disability, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. While the Veteran was not provided notice specific to TDIU, he was provided notice regarding the higher rating claim from which the claim for TDIU arose. In addition, his statements during examination pertaining to his past employment and the affect his left shoulder disability has had upon employment reflect actual knowledge of the evidence necessary to support a claim for TDIU. October 2008 and July 2010 letters advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claims were last readjudicated in October 2012. Moreover, the Veteran is challenging the initial evaluation assigned following the grant of service connection for a left shoulder disability. In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2012). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, private treatment records, and hearing testimony. In addition, the Board notes that the case was remanded in March 2012 to provide the Veteran with VA examinations and to request authorization from the Veteran to obtain private treatment records. A March 2012 letter asked the Veteran to provide authorization for VA to obtain certain private treatment records. The letter was sent to the Veteran's last known address and was not returned as undeliverable. The Veteran did not respond to the letter, and without authorization VA cannot obtain private treatment records. VA has no further duty to assist in obtaining these records. See 38 C.F.R. § 3.159(c)(1)(i) (2012); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence"). The Veteran was provided the requested examinations in June 2012. Accordingly, the requirements of the remand were ultimately accomplished and the prior remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran underwent VA examinations in April 2005, March 2006, August 2006, December 2009, and June 2012. These examinations are found to be adequate in so far as they thoroughly and accurately portray the extent of the left shoulder disability and left upper extremity complaints. The examination reports note the relevant medical history including complaints as well as relevant findings such as range of motion and functional capacity. Diagnostic testing, including X-rays, magnetic resonance imaging (MRI), and electromyograph and nerve conduction studies (EMG/NCS) were reviewed. Therefore the Board finds that the Veteran has been provided adequate medical examinations in conjunction with his claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that a medical opinion is adequate when it is based upon consideration of a claimant's prior medical history and examinations and describes the disability in sufficient detail so that the evaluation of the claimed disability will be a fully informed one); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (finding an examination report to be lacking sufficient detail and as a result inadequate as it failed to address any range-of-motion loss specifically due to pain and any functional loss due to pain during flare-ups). Referable to VA's duty to obtain adequate medical opinions in this case, the June 2012 examination included an opinion as to whether the Veteran's left upper extremity complaints were incurred in or aggravated by his two weeks of active military service, were causally related to his service-connected left shoulder disability, or were aggravated beyond the normal course of the condition by his service-connected left shoulder disability. A rationale was provided for the conclusions and the relevant history was considered. Therefore, the Board finds that VA has obtained an adequate medical opinion in conjunction with that claim. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Veteran maintains that he has numbness, tingling, and loss of strength in the left hand and arm as a result of his service or service-connected left shoulder disability. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, generally there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In the instant case, there is medical evidence demonstrating that the Veteran has numbness in the left upper extremity. For example, during a March 2006 VA peripheral nerves examination there was a loss of sensation to touch in the medial biceps and distally in the lateral hand and medial hand. The examiner diagnosed left upper extremity numbness. The first Hickson element has been satisfied. Turning to the second Hickson element, although the Veteran's service treatment records fail to reflect treatment or diagnosis related to numbness, tingling, and loss of strength in the left hand and arm, there is other evidence of complaints dating back to service. During the March 2006 VA peripheral nerves examination the Veteran reported experiencing chronic numbness and tingling in the left arm since the military. He is competent to report such symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); see also Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). There is only one medical opinion of record regarding the final Hickson element, that of the June 2012 VA examiner. After conducting a physical examination of the Veteran, reviewing his claims file, and considering his account of symptomatology, the examiner determined that the Veteran's current left upper extremity disability was "less likely as not" incurred in or aggravated by his two weeks of active military service. The examiner stated that recent private work up found a herniated disk in the Veteran's neck, which would better explain the bilateral symptoms. The Veteran has not alleged that he herniated a disk in his neck during his two weeks of military service nor does the medical evidence reflect such an event. As such, service connection on a direct basis must be denied. The Veteran also alleges that his current complaints were caused or aggravated by his service-connected left shoulder disability. A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2012). As explained above, current left upper extremity numbness is shown by medical evidence. The remaining question is whether this numbness was caused or permanently worsened by the service-connected left shoulder disability. Three VA examiners have offered opinions regarding whether the current complaints are related to the service-connected left shoulder disability. First, in March 2006, a VA examiner opined that left upper extremity weakness was not related to the left shoulder disability and explained that nerve conduction studies were normal. Additional nerve conduction studies were obtained in April 2006, which were also reportedly normal. Second, in December 2009, a VA examiner opined that it is not as likely as not that the Veteran's forearm and hand numbness or sensations are due to his shoulder condition. She explained that prior nerve conduction velocity studies (NCVs) were normal and neurological examination was unremarkable. Additionally, she noted that his symptoms were not consistent with a specific nerve injury, except ulnar injury. However, there were no ulnar nerve abnormalities found on prior NCV and this would not as likely as not be due to shoulder injury or surgery anyway. Third, in June 2012, a VA examiner opined that it is "less likely as not" that the Veteran's left upper extremity disability is causally related to or aggravated beyond the normal course of the condition by his service-connected left shoulder disability. The examiner explained that the Veteran's complaint of left upper extremity disability initially centered on numbness and weakness in the left hand but had now extended to similar symptoms in the right hand. According to the examiner, the anatomy and pathophysiology of the problems with the left shoulder would not explain problems in the right hand. In addition, recent private work up found a herniated disk in the neck, which the examiner opined would better explain the bilateral symptoms. The Boards finds the June 2012 opinion to be adequate and highly probative as it was made after a physical examination and a review of the relevant evidence including the Veteran's own statements. In addition, the examiner provided a rationale for the conclusions reached. The only medical evidence that could be perceived as being in conflict with the June 2012 opinion is a February 2007 letter from the Veteran's private physical therapist. The first comment in that letter is as follows: "Service connection for numbness and tingling [with] loss of strength, left hand and arm as secondary to the service-connected disability of [status post] anterior dislocation of the [left] shoulder [with] surgery." The physical therapist then noted that the Veteran demonstrates objective and functional impairment directly related to prior history of injury and surgery listed in the first comment and details the impairments. The Board does not consider this to be an opinion regarding whether the claimed numbness, tingling, and loss of strength in the left hand and arm are secondary to the left shoulder disability. The letter functions as a description of impairments related to the comment quoted above rather than an opinion as to the etiology of the comment quoted above. Even if the Board were to accept this as an opinion that the Veteran had numbness, tingling, and loss of strength in the left hand and arm secondary to the service-connected left shoulder disability, the opinion would be afforded no probative weight as there is no rationale for the conclusion reached and the rationale is not otherwise obvious. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008) (holding that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). In short, the Board places significant probative value on the June 2012 VA opinion that the Veteran's current left upper extremity disability is less likely as not causally related to or aggravated beyond the normal course of the condition by his service-connected left shoulder disability. This is the most probative evidence regarding the question of secondary service connection. Accordingly, service connection for a back disability is not warranted on a secondary basis. In summary, the Board has considered the benefit of the doubt rule; however, since a preponderance of the evidence is against the award of service connection for a disability of the left upper extremity characterized by numbness, tingling, and loss of strength in the left hand and arm, on a direct or secondary basis, the benefit-of-the-doubt rule is not for further application. 38 U.S.C.A. § 5107 (West 2002) III. Initial Ratings The Veteran contends that his service-connected status post anterior dislocation of the left shoulder with surgery is severe enough to warrant higher ratings. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2012). The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. Id. When considering joints, manifestations of functional loss also include less or more movement than is normal, weakened movement, excess fatigability, incoordination, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight bearing. 38 C.F.R. § 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 207 (1995) (holding that 38 C.F.R. § 4.45 applies to joint conditions as well as muscle and nerve conditions). Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The medical evidence of record shows that the veteran is right-handed, and as such, minor, as opposed to major, hand disability ratings are applicable. 38 C.F.R. § 4.69 (2012). This disability is currently evaluated under Diagnostic Code 5299-5020 as 10 percent disabling from October 29, 2004 to September 27, 2007; 100 percent disabling under 38 C.F.R. § 4.30 from September 28, 2007 to March 31, 2008; 10 percent disabling from April 1, 2008 to March 26, 2009; and 20 percent disabling since March 27, 2009. 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). The temporary total rating is in no way affected by this decision. Diagnostic Code 5020 (Synovitis) indicates that disabilities will be rated on limitation of motion of the affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5020 (2012). In this case, the Board finds that based on limitation of motion a 20 percent disability rating is warranted since the date of entitlement to service connection for the disability, with the exception of the period from April 1, 2008 to July 15, 2008 during which time a 30 percent disability rating is warranted. For the minor shoulder, limitation of motion at the shoulder level or limitation midway between side and shoulder level warrants a 20 percent rating; and limitation to 25 degrees from the side warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). During private treatment in December 2004 left shoulder abduction was limited to 90 degrees, which is to shoulder level. See 38 C.F.R. § 4.71, Plate I (2012). While left arm limitation of motion to shoulder level or less is not shown on every examination, overall the evidence reflects that such limitation has been present throughout the course of the appeal. For example, prior to the temporary total evaluation already assigned in this case, left shoulder abduction was limited to 50 degrees during a VA peripheral nerves examination in March 2006, left shoulder abduction was limited to 60 degrees and forward flexion to 90 degrees at a February 2007 VA orthopedic appointment, and left shoulder abduction was limited to 80 degrees during a VA pre-operative physical in August 2007. Subsequent to the temporary total evaluation assigned in this case, left shoulder flexion was limited to 90 degrees and abduction to 50 degrees during VA orthopedic treatment in July 2008, left shoulder abduction was limited to 90 degrees during VA orthopedic treatment in September 2008, left shoulder abduction was limited to 60 degrees during November 2008 VA treatment, left shoulder abduction was limited to 90 degrees during February 2009 VA treatment, left shoulder flexion was limited to 80 degrees and abduction to (approximately) 30 degrees (when considering the probable effects of repetitive motion) during a December 2009 VA joints examination, left shoulder abduction was limited to 45 degrees during a VA consultation in July 2009, and left shoulder abduction was limited to 40 degrees during a June 2012 VA shoulder and arm examination. All of these findings show left arm range of motion limited to shoulder level or below, but greater than limitation to 25 degrees from side. Exclusive of the period from April 1, 2008 to July 15, 2008 and the period for which a temporary total rating is already assigned, range of motion of the left arm was limited at most to 80 degrees of flexion and 30 degrees of abduction. This includes range of motion testing during VA examinations in April 2005, March 2006, August 2006, December 2009, and June 2012, and consideration of pain and functional loss after repetition and during flare-ups. As such, a rating in excess of 20 percent for left shoulder limitation of motion is not warranted outside of the above periods. During the period from April 1, 2008 to July 15, 2008, the range of motion of the arm was limited to 25 degrees from the side or less. Specifically, VA treatment notes reflect that in April 2008 the Veteran's left shoulder dislocated and he put it back in but was still having pain. On examination, range of motion was 80 degrees of passive flexion and 60 degrees of passive abduction; actively the Veteran could not flex beyond 0 degrees or abduct any more than 10 to 20 degrees. He could not perform external or internal rotation. Given the above, a 30 percent disability rating is warranted beginning April 1, 2008. A 30 percent disability rating is the highest rating assignable based on limitation of motion of the arm. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). Starting July 15, 2008, the evidence clearly shows that left arm range of motion is greater than 25 degrees from the side. For example, relevant to the left shoulder, flexion was to 90 degrees and abduction to 50 degrees in July 2008, flexion was to 100 degrees and abduction to 90 degrees in September 2008, flexion was to 150 degrees and abduction to 60 degrees in November 2008, flexion was to 150 degrees and abduction to 90 degrees in February 2009, flexion was to 80 degrees and abduction to (approximately) 30 degrees (when considering the probable effects of repetitive motion) in December 2009, flexion was to 135 degrees and abduction to 45 degrees in July 2009, and flexion was to 95 degrees and abduction to 40 degrees in June 2012. The Board recognizes the Veteran's March 2011 testimony that he cannot move his arm a quarter inch from his side without someone manipulating it, but finds the objective medical evidence described above to be more probative on this point. Board Hearing Tr. at 8; see Barr v. Nicholson, 21 Vet. App. 303, 308-10 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). As such, the 30 percent rating will end on July 14, 2008. As discussed above, a 20 percent rating is warranted for left arm limitation of motion from July 15, 2008 to the present. The Board further finds that a separate 20 percent rating for recurrent left shoulder dislocation with guarding, under Diagnostic Code 5202 (Humerus, other impairment of), is warranted since the date of entitlement to service connection for this disability. Regarding other impairment of the humerus, a 20 percent rating is warranted with recurrent dislocation at the scapulohumeral joint of the minor shoulder if the episodes are infrequent and there is guarding of movement only at shoulder level, or if there are frequent episodes of dislocation and guarding of all arm movements. Marked or moderate deformity of the humerus likewise warrants a 20 percent rating for the minor shoulder. Also for the minor shoulder, a 40 percent rating is warranted with fibrous union of the humerus, a 50 percent rating is warranted with nonunion of the humerus, and an 70 percent rating is warranted with loss of head of the humerus (flail shoulder). 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2012). It is noted that a subluxation is an incomplete or partial dislocation. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1779 (30th ed. 2003). In September 2004, shortly before the Veteran filed the instant claim, a private treatment note indicates that he had recurrent anterior (shoulder) instability. The Veteran noted that his left shoulder goes out and he is able to relocate it himself most of the time. During an August 2006 VA examination, the Veteran complained of left shoulder dislocation two to three times per week whenever he goes through apprehension's sign, which is abduction, external rotation so he avoids such movement. On examination the Veteran guarded during left shoulder external rotation and during inferior Sultan's test. During another appointment that month, the Veteran reported daily left shoulder pain and dislocations. In a February 2007 letter a private physical therapist noted that the Veteran had pain and instability of the left shoulder. He also commented that functional loading as expected in regular job demands of lifting, stacking, and carrying loads greater than 20 pounds reproduced arm pain and subluxation of the shoulder. A February 2007 VA orthopedic note reflects the Veteran's complaint of almost daily left shoulder dislocation. After examination, the assessment was chronic dislocating shoulder. A VA physician assessed the Veteran with recurrent dislocations and chronic instability of the left shoulder in August 2007 after examining him in connection with an upcoming left shoulder surgery. The Veteran dislocated his shoulder in April 2008, necessitating VA treatment. The Veteran complained of left shoulder instability during July and September 2008 VA orthopedic appointments. In February 2009, he reported left shoulder dislocation occurring once every 3 weeks. During a December 2009 VA joints examination the Veteran guarded the left shoulder slightly. During a VA consultation in July 2009, the Veteran complained that his left shoulder subluxes and he has to push it back in. X-rays showed superior migration of the humeral head in relation to the glenoid. There were no degenerative changes. The assessment was recurrent left shoulder instability; arthrofibrosis left shoulder. Given the findings on medical examination and the Veteran's lay statements as described above, the Board finds that the Veteran has recurrent left shoulder dislocation with guarding and should be awarded a separate 20 percent rating for this symptomatology under Diagnostic Code 5202. A rating in excess of 20 percent under Diagnostic Code 5202 is not warranted at any time throughout the course of the appeal as fibrous union of the humerus, nonunion of the humerus, and loss of head of the humerus (flail shoulder) are not present in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2012). An X-ray of the left shoulder reviewed during an August 2006 was reportedly normal. A left shoulder arthrogram from September 2006 showed a normal humeral head contour. The humeral head was well-seated within the glenoid. Acromiohumeral distance was normal, as was the acromioclavicular joint. A private left shoulder X-ray report from June 2009 appeared to show the humeral head subluxed superiorly while a September 2009 X-ray appeared to show the left shoulder humeral head subluxed posteriorly. In June 2012, a VA examiner explained that while the Veteran reportedly had arthrofibrosis, this refers to a stiff joint and is not the same as fibrous union of the humerus. This diagnostic and clinical evidence is against a finding that the Veteran has fibrous union of the humerus, nonunion of the humerus, of loss of head of the humerus. The Veteran has not claimed to have any of these conditions. The Board has considered if higher or separate ratings could be awarded using other diagnostic codes but finds no codes which could result in a more favorable rating. Diagnostic Code 5200 is not for application in this case as there is no evidence of ankylosis of the scapulohumeral articulation. See 38 C.F.R. § 4.71a, Diagnostic Code 5200 (2012). In fact, in June 2012 a VA examiner specifically noted that there was no ankylosis of the shoulder. Likewise, there is no evidence of impairment of the clavicle or scapula and Diagnostic Code 5203 is not for application. See 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2012). In February 2011, the Veteran's representative argued that Diagnostic Code 5051 should be applied in this case. The Board disagrees. Diagnostic Code 5051 is for application only when there has been prosthetic replacement of the shoulder joint, which has not happened in this case. 38 C.F.R. § 4.71a, Diagnostic Code 5051 (2012). The Board has considered whether a separate rating could be awarded based on the scars resulting from the left shoulder surgeries. To warrant a compensable evaluation, the evidence would need to show a deep scar or a scar causing limited motion and covering an area exceeding 6 square inches (39 square (sq.) cm.); or a superficial scar covering an area of 144 square inches (929 sq. cm.) or greater or that is unstable or painful on examination. See 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7804 (2008). The Board notes that during the pendency of the appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective October 2008. However, the October 2008 revisions are only applicable to applications for benefits received by the VA on or after October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008). As the Veteran filed his claim prior to this date, and has not expressly requested review under the revised criteria, only the pre-October 2008 version of the schedular criteria is applicable. In April 2005 a VA examiner noted a 3 cm. anterior shoulder scar and a 2 cm. posterior shoulder scar, both of which were well healed, non-indurated, and nontender. The left shoulder scars were described as well healed in February 2007, July 2009, and December 2009. On examination in December 2009, the scars were nontender. After examination in June 2012, it was noted that the scars were not painful or unstable and did not cover a total area greater than 39 square cm. The relevant scars are not the requisite size for a compensable rating, regardless of whether the scars are superficial, deep, or cause limitation of motion. Thus, ratings under Diagnostic Codes 7801 and 7802 are not appropriate. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802 (2008). The scars were not painful on examination. Moreover, loss of covering of the skin was not found on examination or reported by the Veteran. Thus, a compensable rating under Diagnostic Codes 7803 or 7804 is not appropriate. See 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 (2008). No functional effects of the scar were reported by the Veteran and he is already compensated for limitation of motion of the left shoulder. Given the above, a separate rating for the scars is not appropriate as the criteria for a compensable rating for scars is not met. The Board has also considered whether referral for an extra-schedular rating is appropriate. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (2012). Related factors include "marked interference with employment" and "frequent periods of hospitalization." Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his schedular ratings inadequate. The Veteran's left shoulder disability has been evaluated under the applicable diagnostic codes that have specifically contemplated the level of occupational impairment caused by that disability. Based on consideration of all of the relevant evidence of record, the Board finds that impairment caused by the left shoulder disability is contemplated by the ratings assigned under Diagnostic Codes 5201 and 5202. In short, there is no indication in the record that the average industrial impairment from the Veteran's left shoulder disability would be in excess of that contemplated by the assigned ratings; the Veteran's disability picture is not shown to be exceptional or unusual. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). The Board has considered whether a TDIU rating is warranted. Initially, it is noted that there is no prejudice to the Veteran in the Board deciding this aspect of the appeal as a claim for a TDIU was implicitly denied by the Agency of Original Jurisdiction (AOJ). See Rice, 22 Vet. App. at 453-55; Adams v. Shinseki, 568 F.3d 956, 961-64 (Fed. Cir. 2009) (finding that in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if VA did not expressly address that claim in its decision); Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008); Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Munro v. Shinseki, 616 F.3d 1293, 1297-98 (Fed. Cir. 2010) (applying the implicit denial rule to pending informal claims). The Veteran's only service-connected disability is his left shoulder disability. Through a rating decision, statement of the case, and supplemental statements of the case, the AOJ has decided that no more than a 20 percent disability rating is warranted for that disability. These decisions were sufficiently clear to put the Veteran on notice that a total rating was being denied. A TDIU rating may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b) (2012). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his/her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). In this case, the Veteran's sole service-connected disability, status post anterior dislocation of the left shoulder with surgery, is not rated as 60 percent or more disabling. The Veteran does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) (2012). Based upon a review of the record, the Board finds that the Veteran's service-connected status post anterior dislocation of the left shoulder with surgery does not render him unable to secure or follow substantially gainful employment. During the Veteran's December 2009 VA examination, he reported that he had not worked in three years but previously worked very short term on a production line at a food cannery. His shoulder reportedly bothered him at this work. He was currently a stay-at-home dad. According to the examiner, the Veteran's left upper extremity shoulder pain and range of motion limitation likely limit him to occupations that do not require any left upper extremity range of motion, shoulder use, or lifting. The examiner explained that the Veteran was able to do both physical and sedentary occupations that do not require repetitive motion and lifting of his left shoulder. During the Veteran's June 2012 VA examination, he reported that he had not worked in three years and had tried multiple jobs that involved labor but could not tolerate them. According to the Veteran, he tried to get other jobs that did not involve labor but he did not have the educational training to get these jobs. The examiner indicated that the Veteran's shoulder condition impacted his ability to work, citing the Veteran's contentions. The VA examination reports suggest that the Veteran is limited to sedentary work or physical work that does not involve repetitive use of the left shoulder. While the Veteran asserts that he does not have the educational background for sedentary work, the Board finds that the evidence of record suggests otherwise. The Veteran's Department of Defense Form 214 indicates that he is a high school graduate. During a September 2010 VA psychiatric examination, the Veteran revealed that he had attended some community college courses but that testing reflected that he had only a low level mastery of basic skills. During the Veteran's August 2006 VA spine examination, he reported that he was working at a McDonald's restaurant. He worked his way up to a manager position and did not have to lift or carry anything in connection with that position. During the September 2010 VA examination, the Veteran also indicated he engages in a gaming community on-line, spending 4 to 5 hours per day engaged in videogames. The Veteran reported that he coordinates his gaming community. The medical evidence suggests that the Veteran's service-connected left shoulder disability does not preclude sedentary employment. The Veteran is a high school graduate who has taken some community college courses and has experience in management through organizing his gaming community and previous employment as a restaurant manager. Given the above, the Board finds that the Veteran's service-connected left shoulder disability does not render him unable to secure or follow substantially gainful employment. Thus, entitlement to TDIU is not appropriate in this case. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In summary, the Board has considered the benefit of the doubt rule; however, since a preponderance of the evidence is against the assignment of ratings higher than those assigned by this decision, the benefit-of-the-doubt rule is not for further application. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2012). (CONTINUED ON NEXT PAGE) ORDER Service connection for a disability of the left upper extremity characterized by numbness, tingling, and loss of strength in the left hand and arm is denied. A 20 percent rating for limitation of motion status post anterior dislocation of the left shoulder with surgery is granted from October 29, 2004 to September 27, 2007, subject to the applicable laws and regulations governing the payment of monetary benefits. A 30 percent rating for limitation of motion status post anterior dislocation of the left shoulder with surgery is granted from April 1, 2008 to July 14, 2008, subject to the applicable laws and regulations governing the payment of monetary benefits. A 20 percent rating for limitation of motion status post anterior dislocation of the left shoulder with surgery is granted from July 15, 2008, subject to the applicable laws and regulations governing the payment of monetary benefits. A separate 20 percent rating for recurrent dislocations status post anterior dislocation of the left shoulder with surgery under Diagnostic Code 5202 is granted from October 29, 2004, subject to the applicable laws and regulations governing the payment of monetary benefits. Entitlement to TDIU is denied. ______________________________________________ Donnie R. Hachey Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs