Citation Nr: 1307110 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 07-13 629 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for chronic dislocation of the right shoulder, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, prior to January 8, 2008. 2. Entitlement to a rating in excess of 30 percent for chronic dislocation of the right shoulder, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, from March 1, 2008 through September 22, 2010. 3. Entitlement to a rating in excess of 60 percent for chronic dislocation of the right shoulder, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, from November 1, 2011. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected chronic dislocation of the right shoulder, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), from October 27, 2005 through January 7, 2008, and from March 1, 2008 through September 22, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2006 rating decision in which the RO, inter alia, granted service connection and assigned an initial 30 percent rating for the Veteran's chronic dislocated right shoulder, effective October 27, 2005. In July 2006, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in November 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2007. In July 2010, the Board characterized the claim on appeal as one for higher initial rating (consistent with Fenderson v. West, 12 Veteran. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability, and expanded the appeal to include the matter of entitlement to a total disability rating based on individual unemployability (TDIU) due to the right shoulder disability (consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). At that time, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development. In a September 2010 rating decision, the RO granted a temporary total disability rating, effective January 8, 2008 to March 1, 2008, based on surgical or other treatment necessitating convalescence. In March 2011, the Board remanded the claims on appeal to the RO, via the AMC, for additional development. In a June 2011 rating decision, the RO granted a temporary, total disability rating, effective September 23, 2010, based on a right total shoulder arthroplasty necessitating convalescence. The RO then granted a schedular 100 percent disability rating from November 1, 2010. The RO subsequently returned the Veteran to the pre-surgical evaluation of 30 percent from November 1, 2011. In an August 2012 rating decision, the AMC granted a 60 percent disability rating for chronic dislocation of the right shoulder, from November 1, 2011. Given the RO's actions noted above, the Board has characterized the appeal as now encompassing the matters set forth on the title page, consistent with Fenderson, 12 Vet. App. at 126 and AB v. Brown, 6 Vet. App. 35, 38 (1993). These matters have been defined to exclude periods for which a temporary, total rating was in effect. In the August 2012 rating decision, the AMC also granted a TDIU, from November 1, 2011. While the AMC indicated that its decision represented a full grant of the benefit sought on appeal with respect to that claim, the Board disagrees. In this case, a TIU is potentially available prior to November 1, 2011 (specifically from October 27, 2005 through January 7, 2008, and from March 1, 2008 through September 22, 2010-the time periods during which the Veteran was not receiving either a temporary, total rating or a schedular 100 percent rating). Id. Hence, the Board has characterized the appeal as also encompassing the matter of the Veteran's entitlement to a TDIU during the noted periods. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal, other than additional VA medical records and the September 2010 and June 2011 rating decisions. The Board's decision the matters of higher ratings for chronic dislocation of the right shoulder are set forth below. The claim for a TDIU prior to remaining claim on appeal is addressed in the remand following the order. This matter is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. From the October 27, 2005 effective date of the award of service connection through January 7, 2008, the Veteran's chronic dislocation of the right shoulder was manifested by consistent painful motion; however, the majority of the range of motion findings document no limitation of motion to 25 degrees from the side or less; no evidence of ankylosis; no recurrent dislocation; no malunion, fibrous union, nonunion, or loss of the head of the humerus; and no impairment of the clavicle or scapula. 3. For the period from March 1, 2008 through September 22, 2010, the Veteran's chronic dislocation of the right shoulder was manifested by consistent painful motion; however, there was no limitation of motion to 25 degrees from the side or less; no evidence of ankylosis; no recurrent dislocation; no malunion, fibrous union, nonunion, or loss of the head of the humerus; and no impairment of the clavicle or scapula. 4. Since November 1, 2011, the Veteran's chronic dislocation of the right shoulder have been assigned a 60 percent rating, the maximum schedular disability rating authorized under VA's rating schedule; there is no indication that chronic dislocation of the right shoulder involve additional disability warranting evaluation under different or separate diagnostic code(s), and at no point pertinent to this claim for increase has chronic dislocation of the right shoulder been shown to be so exceptional or unusual as to render impractical the application of the regular schedular standards for rating the disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for chronic dislocation of the right shoulder, prior to January 8, 2008, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5201 (2012). 2. The criteria for a rating in excess of 30 percent for chronic dislocation of the right shoulder, for the period from March 1, 2008 through September 22, 2010, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5201 (2012). 3. The criteria for a rating in excess of 60 percent for chronic dislocation of the right shoulder, from November 1, 2011, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, are not met . 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5051 (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)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant 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, to include AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A March 2006 pre-rating letter notified the Veteran as to what information and evidence was needed to satisfy the elements of what was then a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. A separate May 2006 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The letter also informed the Veteran to submit any evidence in his possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). After the RO's award of service connection, and the Veteran's disagreement with the initial rating assigned, the SOC set forth the criteria for higher ratings for the right shoulder disability (the timing and form of which suffices, in part, for Dingness/Hartman). Although no notice letter specific to the claim for higher rating has been issued, on these facts, the absence of such notice does not prejudice the Veteran. As noted, pertinent notice applicable to all claims has been provided. Moreover, as each claim for higher rating is being denied, no higher rating is being, or is to be denied. Hence, there is no possibility of prejudice under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records. Also of record and considered in connection with the appeal are various written statements provided by the Veteran. The Board finds that no additional RO action prior to appellate consideration is required In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claims decided herein, the avenues through which he might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the questions for consideration are entitlement to higher initial and subsequent ratings assigned following the award of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of 'staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Here, the RO has already assigned staged ratings for chronic dislocation of the right shoulder. Historically, the RO granted service connection for chronic dislocation of the right shoulder in a June 2006 rating decision, and assigned an initial 30 percent rating under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5201, effective October 27, 2005. In a September 2010 rating decision, the RO granted a 100 percent disability rating, effective January 8, 2008 through April 30, 2008, based on surgical or other treatment necessitating convalescence, under the provisions of 38 C.F.R. § 4.30. The RO also continued the 30 percent disability rating from March 1, 2008, again under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5201. In a June 2011 rating decision, the RO granted a 100 percent disability rating, effective September 23, 2010, under the provisions of 38 C.F.R. § 4.30, for a right total shoulder arthroplasty necessitating convalescence. The RO then granted a schedular 100 percent disability rating from November 1, 2010, under the provisions of 38 C.F.R. §7.41a, Diagnostic Code 5051. The RO then returned the Veteran to the pre-surgery rating of 30 percent from November 1, 2011. In an August 2012 rating decision, the AMC granted a 60 percent disability rating for chronic dislocation of the right shoulder, from November 1, 2011, under the provisions of 38 C.F.R. §7.41a, Diagnostic Code 5051. Limitation of motion of the arm is evaluated under Diagnostic Code 5201. Ratings assigned pursuant to this code may differ depending on whether the extremity at issue is considered the major (dominant) extremity or the minor (non-dominant) extremity. As the Veteran in the case at hand is right-handed, his chronic dislocation of the right shoulder affects his major extremity, and will be evaluated accordingly. Under Diagnostic Code 5201, limitation of motion of the major extremity at the shoulder level warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level warrants a 30 percent rating. Where motion is limited to 25 degrees from the side, a 40 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under Diagnostic Code 5051, a 100 percent rating is assigned for one year following implantation of prosthesis, for either the major or the minor upper extremity. After surgery, Diagnostic Code 5051 provides that with chronic residuals consisting of severe, painful motion or weakness in the affected extremity, a 50 percent disability rating is assigned for the minor arm and a 60 percent disability rating is assigned for the major arm. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to diagnostic codes 5200 and 5203. Under this code, 20 percent is the minimum assigned rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5051. For reference, standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71, Plate I. The rating schedule authorizes the assignment of a 0 percent (noncompensable) rating in every instance in which the rating schedule does not provide for such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (201); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). As indicated, the RO/AMC has already assigned staged ratings for the chronic dislocation of the right shoulder under consideration; hence, for this claim, the Board will consider the propriety of the rating assigned at each stage, as well whether any further staged rating is warranted. A. Rating in Excess of 30 percent prior to January 8, 2008 and from March 1, 2008 through September 22, 2010 In a January 2007 statement, the Veteran reported that he had lost all painless mobility of his shoulder and was unable to conduct manual labor. He also was unable to sleep. Pertinent to the current claim, the June 2006 VA examination report reflects that the Veteran reported recurrent right shoulder dislocations and pain. He complained of stiffness and periodic instability with lifting activities. He denied flare ups, locking, swelling, heat and redness. He reported it had affected his occupation prior to retirement and that it affected activities of daily living for increased pain putting on shirts, drying off and washing hair. During the June 2006 physical examination, left shoulder flexion was to 80 degrees, extension to 10 degrees, abduction to 60 degrees, adduction to 30 degrees, internal rotation to 20 degrees and external rotation to 30 degrees. All ranges of motion had pain at the end of the range of motion, except for adduction. Following repetitive use, the right shoulder abduction decreased to 55 degrees. The examiner found that range of motion was thus additionally limited following repetitive use secondary to fatigue resulting in five degrees further reduction in right shoulder abduction. Shoulder X-rays revealed orthopedic screws securing an old glenoid injury, some ring osteophytes and degenerative changes. The examiner diagnosed the Veteran with right should osteoarthritis and repetitive right shoulder dislocations per military record. In a December 2006 private medical record, Dr. F.K. Noojin reported overhead flexion at 70 degrees, 70 degrees of abduction, 70 degrees forward flexion and 10 degrees internal and external rotation, after which the Veteran had a lot of pain. In a May 2007 VA medical record, the Veteran reported that he was unable to do anything with his shoulder any longer and had constant pain. He further reported that his private physician had suggested shoulder replacement. The examiner noted initial flexion of 20 degrees and 10 degrees of abduction. Following active range of motion testing, the examiner noted 30 degrees of forward flexion and 15 degrees of abduction. Following intraarticular injection of lidocaine and Kenalog, the examiner noted 45 degrees of forward flexion and 30-45 degrees of abduction. The Veteran received another VA examination in June 2007, which included a claims file review. The Veteran complained of daily pain and that his shoulder interfered with sleep. He was unable to perform overhead activity because of pain. The June 2007 VA examiner found the Veteran able to abduct to 45 degrees, forward flex to 45 degrees, externally rotate to 0 degrees and internally rotate to 90 degrees. The examiner found all ranges of motion to be painful, but to not be additionally limited following repetitive use. The shoulder appeared stable and suprspinatus strength appeared normal. Per a March 1, 2008 VA medical record, the Veteran received an arthroscopic debridement of the shoulder on January 8, 2008. The Veteran received another VA examination in August 2010. The examiner found total abduction to 30 degrees, forward flexion to 45 degrees, external rotation to zero degrees and internal rotation to 90 degrees. The examiner found shoulder motion to be accompanied by end of range pain, but not additionally limited following repetitive use. Impingement testing was positive at 30 degrees. The examiner found the shoulder to be grossly stable and supraspinatus strength to be basically normal. Collectively, the evidence reflects the Veteran's repeated complaints of painful motion (for which he requires prescribed medication) and functional limitation (including impairment in the performance of everyday activities). The competent medical and lay evidence of record depicts a level of symptomatology for the Veteran's chronic dislocation of the right shoulder that increased in severity between October 27, 2005 and January 8, 2008. Also, the severity of the chronic dislocation of the right shoulder remained about the same from that period to the period from March 1, 2008 to September 23, 2010, except for some additionally decreased abduction. The Veteran's flexion ranged from 80 degrees (June 2006 VA examination), to 70 degrees (December 2006 private medical record of Dr. F.K. Noojin), to from 20 degrees to 30 degrees to 45 degrees (May 2007 VA medical record - 20 degrees initially found, then 30 degrees after active testing, and 45 degrees after intraarticular injection), to 45 degrees (June 2007 VA examination) and again to 45 degrees (August 2010 VA examination). His abduction ranged from 60 degrees (decreased to 55 degrees after repetitive use) (June 2006 VA examination), to 70 degrees (December 2006 private medical record of Dr. F.K. Noojin), to from 10 degrees to 15 degrees to from 30 to 40 degrees (May 2007 VA medical record - 10 degrees on initial testing, 15 degrees after active testing, and 30 to 40 degrees after intraarticular injection), to 45 degrees (June 2007 VA examination) and to 30 degrees (August 2010 VA examination). Internal rotation ranged from 20 degrees (June 2006 VA examination), to 10 degrees (December 2006 private medical record of Dr. F.K. Noojin), to no internal rotation (May 2007 VA medical record), to 90 degrees (June 2007 VA examination) and again to 90 degrees (August 2010 VA examination). External rotation ranged from 30 degrees (June 2006 VA examination), to 10 degrees (December 2006 private medical record of Dr. F.K. Noojin), to no external rotation (May 2007 VA medical record), to zero degrees (June 2007 VA examination) and again to zero degrees (August 2010 VA examination). Considering the pertinent facts in light of the above, the Board finds that at no point prior to January 8, 2008 or from March 1, 2008 to September 23, 2010, has the Veteran's chronic dislocation of the right shoulder warranted a rating higher than the 30 percent rating assigned. The May 2007 VA medical record was the only documented flexion finding of less than 45 degrees and abduction finding of less than 30 degrees. That record documented flexion ranging from 20 degrees (initial) to 30 degrees (following active testing) to 45 degrees (following injection) and abduction from 10 degrees (initial) to 15 degrees (following active testing) to from 30 to 40 degrees (following injection). The May 2007 VA medical record provided a wide range of flexion and abduction findings, with the majority of the findings being of flexion greater than 25 degrees (including one finding greater than 25 degrees even before treatment) and an abduction finding greater than 25 degrees after treatment. Furthermore, the medical evidence prior to and following May 2007 (including the VA examinations) documented flexion of at least 45 degrees and abduction to 30 degrees. Thus, although the Board recognizes that in May 2007 the Veteran had flexion and abduction findings of less than 25 degrees, the all the other evidence consistently and repeatedly documented flexion and abduction findings of over 25 degrees. Indeed, even the May 2007 flexion and abduction findings were over 25 degrees, following treatment. The Veteran has reported that his shoulder discomfort is aggravated by activities such as engaging in above-shoulder activity, and has endorsed symptoms such as pain and stiffness. The May 2007 VA medical provider (who documented the most restricted flexion and abduction findings) did not opine on additional limitation following repetitive use. However, the May 2007 VA medical provider did document increased flexion and abduction findings following active motion testing, indicating that the Veteran was not additionally limited following testing. The June 2007 and August 2010 VA examiners provided opinions on range of motion following repetitive use and documented the most restricted ranges of motion findings of the VA examinations and private medical records of record. Each of those VA examiners specifically found that although ranges of motion were painful, the Veteran was not additionally limited following repetitive use. Simply put, the majority of the medical evidence indicates that his right shoulder manifestations, including during flare-ups, have not been so disabling as to result in limitation of motion at 25 degrees from the side to warrant a 40 percent rating under Diagnostic Code 5201. Hence, even with consideration of sections 4.40 and 4.45 and DeLuca, the majority of the record presents no basis for the assignment of any higher rating for the right shoulder under that Diagnostic Code. As for the lay assertions of record, the Board notes that the Veteran is certainly competent to report matters within his personal knowledge, to include his own symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In this case, the Veteran has complained of loss of painless mobility. However, the Board points out that, as a layperson without appropriate medical training and expertise to competently render the medical findings needed to support a higher rating, his assertions would not be considered more persuasive than the findings of a qualified medical professional-here the VA examiners. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In the June 2010 appellant's brief, the Veteran's representative argued that given the Veteran's limitation of motion due to pain he should be considered as if the Veteran had no motion, as the Veteran has reported pain associated with his range of motion. However, experiencing pain throughout the range of motion does not warrant a maximum disability rating. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In the June 2010 appellant's brief, the Veteran's representative also argued that the shoulder should be considered analogous to a knee disorder, as the appellant has claimed loss of motion and instability, warranting separate disability ratings. There is no authority for extending the principles espoused. The Board, however, finds that the Veteran does not have instability. The June 2007 VA examiner found the shoulder to appear stable. The August 2010 VA examiner found the shoulder to be grossly stable. VA medical records also included similar findings. For example, in April 2005, the VA medical provider found no upper joint subluxation or laxity. The Board also finds that no other diagnostic code provides a basis for any higher rating. In this case, the have been no medical findings of any ankylosis of the scapulohumeral articulation, or impairment of the humerus, clavicle, or scapula. In the absence of such findings, evaluating the Veteran's shoulder under Diagnostic Codes 5200, 5202, or 5203 is not appropriate. See 38 C.F.R. 4.71a. Moreover, the disability is not shown to involve any other factor(s) that would warrant evaluation of the disability under any other provision(s) of the rating schedule. For all the foregoing reasons, the Board finds that there is no basis for a disability rating in excess of 30 percent prior to January 8, 2008 or from March 1, 2008 through September 22, 2010. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Disability Rating in Excess of 60 percent from November 1, 2011 Historically, in a June 2011 rating decision, the RO granted a 100 percent disability rating, effective September 23, 2010, under the provisions of 38 C.F.R. § 4.30, for a right total shoulder arthroplasty necessitating convalescence. The RO then granted a schedular 100 percent disability rating from November 1, 2010, under the provisions of 38 C.F.R. §7.41a, Diagnostic Code 5051. The RO then returned the Veteran to the pre-surgical evaluation of 30 percent from November 1, 2011. In an August 2012 rating decision, the AMC granted a 60 percent disability rating for chronic dislocation of the right shoulder, from November 1, 2011, under the provisions of 38 C.F.R. §7.41a, Diagnostic Code 5051. Per a September 23, 2010 private medical record, the Veteran underwent a total right shoulder arthroplasty. The Veteran received his temporary 100 percent disability rating from September 23, 2010 until November 1, 2010 for convalescence after that during. During the period preceeding the current one (from November 1, 2010 until November 1, 2011), the Veteran then received a 100 percent disability rating under Diagnostic Code 5051. Under that code section, a 100 percent rating is assigned for one year following implantation of prosthesis, for either the major or the minor upper extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5051. After surgery, Diagnostic Code 5051 also provides that with chronic residuals consisting of severe, painful motion or weakness in the affected extremity, a 60 percent disability rating is assigned for the major arm. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to diagnostic codes 5200 and 5203. The 60 percent rating is the maximum rating possible under that code section (after the 100 percent possible for the year following the implantation of a prosthesis that the Veteran has already received). 38 C.F.R. § 4.71a, Diagnostic Code 5051. Thus, pertinent to the Veteran's increased rating claim, a higher schedular rating is not available. The Board has also considered the applicability of other diagnostic codes for rating this disability, but finds that no other diagnostic code provides a basis for higher rating. The current 60 percent rating is in excess of any ratings possible under Diagnostic Code 5201 for limitation of motion of the arm. 38 C.F.R. § 4.71(a), Diagnostic Code 5201. In particular, the Board also notes that the record does not reflect loss of use of the right upper extremity at any level or disability akin to amputation of right upper extremity. The disability also has not been shown to involve any factor(s) that warrant evaluation under any other provision(s) of VA's rating's rating schedule. Additionally, the Board finds that there is no showing that the Veteran's chronic dislocation of the right shoulder have reflected so exceptional or so unusual a picture as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (2012). There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant'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. at 115-16; see also 38 C.F.R. § 3.321(b)(1) governing norms include marked interference with employment and frequent periods of hospitalizations). 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 the claimant's disability picture requires the assignment of an extra-schedular rating. Id. at 116. The Board finds that schedular criteria are adequate to rate the Veteran's disability at all times pertinent to this appeal. For the periods prior to January 8, 2008 and from March 1, 2008 through September 22, 2010, the rating schedule fully contemplates the described symptomatology, and there is no medical indication or argument that the applicable criteria are inadequate to rate it. A higher rating is possible, the Veteran simply does not meet the criteria for it. For the period from November 1, 2011, competent medical and lay evidence indicates that the Veteran's predominant subjective and objective symptoms consist of painful motion and some decreased strength (only in the January 2011 VA examination). A comparison between the Veteran's symptoms and the criteria of the rating schedule (which provides for a 60 percent rating when there is evidence of chronic residuals consisting of severe, painful motion or weakness in the affected extremity) indicates that the rating criteria reasonably describe his level of impairment. Indeed, the Board notes that more recent medical records, such as the January 2012 VA examination and more recent VA medical records document even less severe symptoms. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995) For all the foregoing reasons, the Board finds that the Veteran has been assigned the maximum schedular rating available for the various time periods and that there is no circumstance under which a higher rating, to include on an extra-schedular basis, is warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating for chronic dislocation of the right shoulder, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An initial rating in excess of 30 percent for chronic dislocation of the right shoulder, prior to January 8, 2008, is denied. A rating in excess of 30 percent for chronic dislocation of the right shoulder, from March 1, 2008 to September 23, 2010, is denied. A rating in excess of 30 percent for chronic dislocation of the right shoulder, from November 1, 2011, is denied. REMAND The Board's review of the record reveals that further RO action on the remaining claims on appeal is warranted. In an August 2012 rating decision, the RO/AMC awarded the Veteran a 60 percent rating for chronic dislocation of the right shoulder, effective November 1, 2011. It also awarded entitlement to a TDIU, effective November 1, 2011. However, inasmuch as a TDIU is available prior to November 1, 2011 (specifically for the periods from October 27, 2005 until January 8, 2008 and from March 1, 2008 until September 23, 2010 - the time periods the Veteran was not receiving either a temporary total evaluation or a schedular 100 percent evaluation) the Veteran is presumed to seek the maximum available benefit for a disability and the Board has characterized the matters as set forth on the title page. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35, 38 (1993). Following the August 2012 rating decision, the RO/AMC returned the TDIU matters to the Board for further appellate consideration. In the August 2012 rating decision, the RO/AMC indicated that the Veteran did not meet percentage schedular requirements (under 38 C.F.R. § 4.16(a)) for a TDIU until November 1, 2011 and granted TDIU from that date. However, the RO/AMC did not indicate whether it had considered TDIU on an extraschedular basis under the provisions of § 4.16(b) in adjudicating the claim for a TDIU, for the period prior to November 1, 2011 (specifically the periods from October 27, 2005 until January 8, 2008 and from March 1, 2008 until September 23, 2010), as directed in the March 2011 Board Remand. Under these circumstances, and because the RO must address the applicability of the provisions of and 4.16(b), the Board has no alternative but to, again, remand the matters to the RO, for action in compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the appeal that is not currently of record. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of those unobtained records, explain the efforts taken to obtain them, and describe further action to be taken. 3. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should adjudicate the TDIU claim remaining on appeal in light of all pertinent evidence and legal authority-in particular, (to include the provisions of § 4.16(b)). 5. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, along with reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs