Citation Nr: 1311044 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 05-37 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased (compensable) rating for stellate scar on the tip of the nose. 2. Entitlement to a temporary total disability rating based on the need for convalescence beginning on January 20, 2010, following left shoulder arthroscopy and debridement. 3. Entitlement to an increased rating in excess of 20 percent for left shoulder glenohumeral arthritis with impingement syndrome. 4. Entitlement to an increased rating in excess of 20 percent for a lumbar spine spondylolisthesis. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to service connection for a left knee disability. 7. Entitlement to service connection for a neurological disability of the upper extremities to include tremors. 8. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney at Law ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran (Appellant) served on active duty from March 1983 to June 1983, and again from February 1986 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran did not request a hearing before the Board. A November 2004 rating decision denied an increased (compensable) rating for a stellate scar on the tip of the nose and a total rating due to individual unemployability due to service-connected disabilities (TDIU). A July 2005 rating decision denied service connection for a neurological disorder of the arms to include tremors. The Veteran appealed this decision to the Board. In February 2009, the Board remanded the issues of entitlement to higher rating for a stellate scar of the nose, service connection for a neurological disorder of the arms, and TDIU to the Appeals Management Center (AMC) for further development. A September 2009 rating decision assigned a 20 percent rating to the service-connected lumbar spine disability. An April 2010 rating decision denied a higher rating than 20 percent for the left shoulder disability, a temporary total rating based upon convalescence due to left shoulder surgery on January 20, 2010, and service connection for left and right knee disabilities. The Veteran appealed this decision to the Board. In a July 2011 decision, the Board denied a higher compensable rating for the stellate scar to the tip of the nose. The Veteran appealed the July 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2011, the Board remanded the issues of entitlement to service connection for a neurological disorder of the arms to include tremors and TDIU to the AMC for additional development. In a July 2012 Memorandum Decision, the Court vacated the July 2011 Board decision on the basis that the Board erred when it relied on the December 2009 VA examination report, which failed to comply with the February 2009 remand instructions. The February 2009 remand directed the examiner to note whether the scar on the tip of the nose was at least one quarter inch (0.6 centimeters) wide at its widest part. The Court noted that, pursuant to 38 U.S.C.A. § 5103A(d), VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim, and, once VA undertakes to provide an examination, it must provide an adequate one. The Court remanded the matter to the Board for further development consistent with the decision. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the issues of entitlement to a higher rating for a scar on the tip of the nose and entitlement to a temporary total rating due to convalescence after left shoulder surgery. VA treatment records dated to August 2012 were associated with the Virtual VA file in August 2012. The VA treatment records associated with the file after the January 2011 supplemental statement of the case are not pertinent to the issue of entitlement to a higher rating for a scar on the tip of the nose and do not contain any evidence relevant to rating the scar on the tip of the nose. The VA treatment records associated with the file after the October 2011 supplemental statement of the case are not pertinent to the issue of entitlement to a temporary total rating for surgery on the left shoulder and do not contain any evidence relevant to the temporary total rating. The issues of entitlement to a disability rating in excess of 20 percent for left shoulder glenohumeral arthritis with impingement syndrome and a disability rating in excess of 20 percent for a lumbar spine spondylolithesis; entitlement to service connection for a right knee disability, a left knee disability, and a neurological disability of the upper extremities to include tremors; and entitlement to TDIU are remanded to the RO. FINDINGS OF FACT 1. The Veteran's stellate scar on the tip of the nose is two centimeters in length and approximately 0.5 centimeters in width, stable, well healed, and slightly rough in texture with normal pigmentation, and these manifestations more closely approximate the criteria for one characteristic of disfigurement (0.6 centimeters in width). 2. The Veteran's stellate scar on the tip of the nose is non-tender and non-adherent, it is not raised or depressed, and it does not cause ulcerations, vascular changes, tissue loss, induration, inflexibility, inflammation, edema, or keloid formations; gross distortion of the face; deformity of the nose or nasal cavity; or limitation of motion or limitation of function of the part affected. 3. For the period beginning on January 20, 2010, the service-connected left shoulder disability did not manifest severe postoperative residuals with incompletely healed surgical wounds, stumps of recent amputations, or therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches with regular weight-bearing prohibited, so as to require convalescence following the January 20, 2010 left shoulder arthroscopy. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating for a stellate scar on the tip of the nose have been met for the entire increased rating appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7800 (in effect from August 30, 2002 to October 23, 2008). 2. The criteria for the assignment of a temporary total rating based on the need for convalescence following the left shoulder arthroscopy beginning on January 20, 2010 are not met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the claim for a higher compensable rating for the scar on the tip of the nose, the RO provided VCAA notice letters to the Veteran in May 2004, prior to the initial adjudication of the claim, and in April 2009. The letters notified the Veteran of what information and evidence must be submitted to substantiate a claim for an increased rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Regarding the claim for a temporary total rating, a February 2010 letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for a temporary total rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of his claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) and the letter was issued prior to the initial adjudication of the claim. The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in May 2008, July 2008, and June 2009. The claims were readjudicated in the January 2011 and October 2011 Supplemental Statements of the Case, thus curing any lack of timeliness of notice. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA has a duty to assist a claimant in the development of a claim. This duty includes assisting a claimant in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records and VA treatment records dated from 1992 to August 2012 are associated with the claims folder and the virtual VA file. Social Security Administration records are also associated with the claims folder. The Veteran underwent VA examinations in May 2004 and December 2009 to obtain medical evidence as to the nature and severity of the service-connected scar to the tip of the nose. The Veteran was afforded a VA examination of the left shoulder in March 2010. In a July 2012 Memorandum Decision, the Court vacated the July 2011 Board decision on the basis that the Board erred when it relied on the December 2009 VA examination report, which failed to comply with the February 2009 remand instructions. The February 2009 remand directed the examiner to note whether the scar on the tip of the nose was at least one quarter inch (0.6 centimeters) wide at its widest part. The Court noted that pursuant to 38 U.S.C.A. § 5103A(d), VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim, and once VA undertakes to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Court remanded the matter to the Board for further development consistent with the decision. The Board finds that the question of whether the December 2009 VA examination is adequate is moot in light of the grant of a compensable (10 percent) rating for the scar on the tip of the nose. For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, and no further VCAA notice or assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased (compensable) Rating for Scar on the Tip of the Nose Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Court has held that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (the Court noted a distinction between claims stemming from an original rating versus increased rating). The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza, 7 Vet. App. 498. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The Veteran's scar is to be evaluated under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7800, the criteria for evaluating scar disorders of the head face or neck. 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. 54708 (September 23, 2008). As the Veteran filed this claim for increased rating in August 2004, the pre-October 2008 version of the schedular criteria is applicable. The Veteran here did not specifically request consideration under the new provisions. Diagnostic Code 7800, the rating criteria for scars of the head, face, or neck, provide that a 10 percent evaluation is warranted when there is one characteristic of disfigurement. In Note 1 under Diagnostic Code 7800, the eight characteristics of disfigurement are described as follows: (1) a scar five or more inches (13 or more centimeters) in length; (2) scar at least one-quarter inch (0.6 centimeters) wide at its widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyperpigmented in an area exceeding six square inches; (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc) in an area exceeding six square inches; (7) underlying soft tissue missing in an area exceeding six square inches, and (8) skin indurated and inflexible in an area exceeding six square inches. 38 C.F.R. § 4.118 (in effect from August 30, 2002 to October 23, 2008). The Veteran contends generally that a noncompensable (0 percent) disability rating does not represent the severity of his disability of scar on the tip of the nose. During this claim, the contention has been made that the VA examiner's finding of a scar that is approximately 0.5 centimeters in width more nearly approximates the criteria of disfigurement of a scar at least one-quarter inch (0.6 centimeters) wide at its widest part. Having reviewed all the evidence of record, lay and medical, the Board finds that, for the entire rating period under appeal, the evidence is in equipoise on the question of whether the symptomatology or findings of the scar of the nose more nearly approximate one characteristic of one disfigurement under the rating criteria of scar at least one-quarter inch (0.6 centimeters) wide at its widest part to warrant a 10 percent rating under Diagnostic Code 7800. 38 C.F.R. § 4.118. The competent and credible evidence shows that the service-connected stellate scar on the tip of the nose is approximately two centimeters in length and 0.5 centimeters in width, stable, well healed, and is slightly rough in texture with normal pigmentation. In a December 2009 VA dermatology examination report, the Veteran stated that he did not have any complaints regarding the scar on his nose. He indicated that it was not painful and did not cause frequent loss of skin coverings, ulcerations, breakdowns, or bleeding. He stated that the scar did not bother him, that he had become used to it, and that the scar did not affect his activities of daily living. Upon examination in December 2009, the VA examiner noted that the scar was approximately two centimeters in length and 0.5 centimeters in width. The VA examiner reported that the area around the scar was non-tender, and that the scar itself was non-adherent and did not cause any deformity of the nose or nasal cavity. The VA examiner noted that the scar had a slightly rough texture, but was neither raised, depressed, nor unstable. The VA examiner found no ulcerations, vascular changes, tissue loss, inflammation, edema, or keloid formations due to the scar. The VA examiner noted that the pigmentation was normal and that there was no gross distortion of the face. The VA examiner reported no induration, inflexibility, or limitation of motion caused by the scar. VA treatment records dated for the time period of the appeal do not show any treatment for the scar on the tip of the nose. Having reviewed this evidence, the Board finds that, for the entire rating period under appeal, the Veteran's scar is manifested by symptomatology that more nearly approximates the criteria required for a 10 percent rating under Diagnostic Code 7800. Specifically, the Veteran's scar more closely approximates the criteria for one characteristic of disfigurement which is that the scar is at least one-quarter inch (0.6 centimeters) wide at its widest part. In the present case, the examiner stated that the scar was approximately .5 centimeters in width. The Board finds that this more closely approximates this characteristic of disfigurement; therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that a 10 percent rating is warranted under Diagnostic Code 7800. The evidence in this case does not show more than one characteristic of disfigurement. The scar is two centimeters in length, not 5 inches or more or 13 centimeters or more in length. The scar is not elevated or depressed at the surface on palpation; adherent to underlying tissue; or hypo-or hyperpigmented in an area exceeding six square inches. The scar does not cause abnormal skin texture in an area exceeding six square inches or cause induration or inflexibility in an area exceeding six square inches. There is no underlying soft tissue missing in an area exceeding six square inches. There is no gross distortion or asymmetry of one feature or a pair of features on the face. As the evidence does not show two or more characteristics of disfigurement or any visible or palpable tissue loss or asymmetry or gross distortion of any of the features on the face, the criteria for a rating in excess of 10 percent under Diagnostic Code 7800 has not been met or more nearly approximated at any time during the appeal period. 38 C.F.R. § 4.118 (2008). Ratings in excess of 10 percent are not available under the former Diagnostic Codes 7803, superficial and unstable scars, and 7804, superficial scars painful on examination, as the 10 percent ratings the highest possible rating under these codes. 38 C.F.R. § 4.118 (2008). There is no evidence that the service-connected stellate scar on the tip of the nose causes limitation of function of the nose or other part affected. The December 2009 VA examination report indicates that the VA examiner reported no limitation of motion or function caused by the scar. The Veteran reported that the scar did not bother him and it did not affect his activities of daily living. The May 2004 VA examination indicates that examination of the internal nose was normal and there was no evidence of any acute or chronic nose or sinus disease. Thus, a higher rating in excess of 10 percent is not warranted under Diagnostic Code 7805 (2008). Extraschedular Consideration Finally, the Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, it must determine whether the veteran'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) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a veteran'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 the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. As discussed, the Veteran's service-connected stellate scar of the tip of the nose is manifested by one characteristic of disfigurement which is based upon the size of the scar. The manifestation of the scar on the tip of the nose is contemplated by the rating schedule; therefore, the assigned schedular evaluations are adequate. Moreover, the Board notes that, at the December 2009 VA medical examination, the Veteran stated that the scar did not bother him and did not affect any activities of daily living. The rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. The rating criteria for scars contemplate the size, color, and texture of the scar, whether it causes distortion of the facial features, and whether it limits function of the part affected. The schedular rating criteria for scars specifically provide for disability ratings based on these manifestations, and Diagnostic Code 7805 permits rating the scar on limitation of function of the part affected; hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted. Temporary Total Rating for Convalescence A temporary total convalescent rating contemplates only a temporary period of time required by a veteran to recover from the immediate effects of surgery. 38 C.F.R. § 4.30. A total rating will be granted following hospital discharge, effective from the date of hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge if the hospital treatment of the service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps or recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). Pursuant to 38 C.F.R. § 4.30(b), extensions of 1, 2, or 3 months beyond the initial 3 months may be made under § 4.30(a)(1), (2), or (3) and extensions of 1 or more months up to a 6 month period may be made under § 4.30(a)(2) or (3). In this case, the Veteran underwent left shoulder arthroscopy on January 20, 2010. The procedure was done on an outpatient basis and the Veteran was discharged the day of the procedure. VA records indicate that he underwent arthroscopic debridement of the left shoulder. There were no complications. He was discharged with the left shoulder in a sling, and was informed to keep the sling intact until follow-up. The Veteran was instructed to place ice on the left shoulder to decrease pain and swelling. He was given pain medications. The records indicate that upon discharge the Veteran was able to move all extremities and he was able to ambulate independently and he was steady. It was noted that he had mild pain handled by oral medication. The next appointment was scheduled for February 1, 2010. VA treatment records show that the Veteran was treated at a VA emergency room in January 2010 and requested that the dressing for his left shoulder be changed. The sutures in the left shoulder area were intact and dry without redness. Simple dressing was applied to cover the sutured areas. A February 1, 2010 VA orthopedic surgery follow-up note indicates that the Veteran had undergone an arthroscopic debridement of the left shoulder. Physical examination revealed that the wound was benign. Range of motion was forward flexion of the shoulder was to 110 degrees and external rotation was to 20 degrees. The assessment was stable. A March 1, 2010 VA orthopedic clinic treatment record indicates that the Veteran reported that the second week after the arthroscopy to the left shoulder he began to experience increasing pain and decreased motion of the left arm. He held the arm in a fixed position and stated that it was very painful. Examination revealed abduction to 45 degrees, internal rotation to the front pocket, no external rotation, and 30 degrees of flexion. It was noted that all range of motion attempts were painful. The physician noted that the pre-op films showed that there was significant humeral head irregularity with an anteromed hanging osteophyte of the humeral head. A VA examination report dated March 6, 2010 indicates that the Veteran reported having daily pain in his left shoulder and it was a 9 out of 10 (the most severe). The examiner noted that the Veteran was on a mild narcotic and he had six injections in the shoulder in the past six weeks. Physical examination revealed abduction of the left shoulder was zero to 40 degrees, and flexion was zero to 50 degrees. The examiner indicated that it was difficult to measure rotation and the Veteran was stuck at 30 degrees of internal rotation. He was unable to externally rotate past that point. The examiner stated that the Veteran appeared to passively flex to approximately 80 degrees and abduct to approximately 50 degrees. There was tenderness to palpation over the acromioclavicular joint. The diagnosis was glenohumeral arthritis of the left shoulder and impingement syndrome status post decompression and debridement. VA treatment records show that the Veteran started occupational therapy for the left shoulder on March 24. The goal was to increase range of motion, decrease pain, facilitate restoration of function, and prevent further loss of range of motion. Active range of motion of the left shoulder was flexion to 110 degrees, abduction to 100 degrees, no external rotation, and internal rotation to 5 degrees. VA treatment records show that the Veteran continued with occupational therapy in March and April 2010. VA occupational therapy treatment records indicate that the Veteran was discharged from the therapy on April 30. The Veteran reported no improvement in shoulder pain. Active range of motion of the left shoulder was flexion to 80 degrees, abduction to 45 degrees, external rotation to zero degrees and internal rotation to his belt. Passive range of motion of the left shoulder was flexion to 145 degrees, external rotation to 15 degrees and internal rotation to 50 degrees. An April 27, 2010 VA emergency room record indicates that the Veteran had a left shoulder toradol injection for shoulder pain. The Board finds that the criteria for a temporary total rating based upon convalescence after the January 20, 2010 surgery are not met. The evidence does not show surgery requiring convalescence of at least one month. The evidence discussed above shows that the Veteran's left arm was placed in a sling for approximately 10 days. Immobilization of the left arm and shoulder for a month was not required or shown by the evidence of record. There is no indication in the VA treatment records that the Veteran was instructed to use the sling on the left arm after the February 1, 2010 follow-up appointment. The evidence does not show severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited) at any point during the six-month period after the surgery. The medical records show that the Veteran was discharged on January 20, 2010, and his left arm was in a sling until the follow-up visit on February 1, 2010. The VA treatment records show that the surgical wound was well healed. The evidence does not show any severe post-operative residuals. VA treatment records show that the Veteran was not confined to his house after the surgery but he reported to medical appointments and counseling sessions a few days after the arthroscopy. The evidence of record shows that the Veteran was instructed to use a sling for his left arm after the surgery on January 20, 2010 until the follow-up appointment on February 1, 2010. The evidence does not show that the immobilization of the shoulder joint was required for a month or longer. The evidence does not show that the Veteran was put in a cast or body cast. The weight of the competent lay and medical evidence is against a temporary total rating based upon convalescence. The record shows that the Veteran was not employed at the time of the surgery or after the surgery. The VA treatment records show that the Veteran was able to attend other medical and mental health appointments two days after the surgery. The VA treatment records show that the Veteran was able to move his left arm and shoulder although it was painful. The surgical wounds healed. The medical evidence shows that the Veteran had painful motion of the left shoulder, for which the Veteran is service connected and rated, and he was limited in reaching and moving his arms overhead. This specific limitation is already recognized as part of the service-connected disability and contemplated by the schedular disability rating assigned for the shoulder disability; therefore, such a finding of functional impairment for which compensation has already been paid, and for which the surgery was undertaken, is not evidence of severe post-operative residuals. See 38 C.F.R. § 4.14 (2012) (both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided). A finding of severe post-operative residuals that would require convalescence after the January 20, 2010 arthroscopy is based on different criteria, such as incompletely healed surgical wounds, stumps, or recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or factors. The governing law and regulation are explicit in their language. In the absence of a showing of severe post surgical residuals similar to the residuals enumerated above, there is no basis for the assignment of convalescence benefits. The preponderance of the evidence is against the Veteran's claim for temporary total rating based on convalescence. ORDER For the entire rating period under appeal, a 10 percent rating is warranted for the stellate scar on the tip of the nose. A temporary total disability rating based on the need for convalescence beginning on January 20, 2010 following a left shoulder arthroscopy is denied. REMAND Review of the record shows that in August 2012 additional pertinent evidence was received in the Virtual VA file after the most recent October 2011 supplemental statement of the case was issued to the Veteran for the following issues: entitlement to a disability rating in excess of 20 percent for left shoulder glenohumeral arthritis with impingement syndrome, entitlement to a disability rating in excess of 20 percent for a lumbar spine spondylolisthesis; entitlement to service connection for a right knee disability, a left knee disability, and a neurological disability of the upper extremities to include tremors; and entitlement to a TDIU. The record shows that pertinent VA treatment records dated from October 2011 to August 2012 were associated with the Virtual VA file in August 2012. The pertinent VA treatment records show that the Veteran sought medical treatment at a VA emergency room for back and knee pain and it was noted that he was given a steroid injection in his left shoulder. A January 2012 VA treatment record notes that the Veteran reported having tremors in his upper extremities. It was noted that the Veteran had recently undergone a neurological consult in December 2011. VA treatment records show that the Veteran sought treatment for shoulder and knee pain in March 2012, back pain in May 2012, and left shoulder pain in June 2012. Under 38 C.F.R. § 19.31 (2012), a Supplemental Statement of the Case must be furnished to a veteran when additional pertinent evidence is received after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued. See also 38 U.S.C.A. § 7105 (West 2002). The RO should issue a fully responsive Supplemental Statement of the Case to the Veteran and his representative. The RO should obtain copies of all records of VA treatment for the service-connected left shoulder and lumbar spine disabilities, and for the claimed left knee, right knee, and neurological disorder of the arms, from August 2012 to present from the VA healthcare system. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). The RO should also appropriately contact the Veteran by letter and request that he provide sufficient information and, if necessary, authorization to enable the RO to obtain any copies of any outstanding non-VA treatment records referable to the service-connected left shoulder and lumbar spine disabilities, the claimed left knee, right knee, and neurological disorder of the arms, and the claim for TDIU. The RO should make an attempt to obtain copies of any treatment records from any treatment source identified by the Veteran. The claim for TDIU is inextricably intertwined with the pending claims for higher ratings for the left shoulder and lumbar spine disabilities, and the claims for service connection for the left and right knee disabilities, and the neurological disorder of the arms to include tremors. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. Obtain copies of all VA clinical records showing treatment of the service-connected left shoulder and lumbar spine disabilities and the claimed right and left knee disabilities and the neurological disability of the arms to include tremors, from the VA healthcare system dated from August 2012 to present. 2. Contact the Veteran and ask him to identify all non-VA medical treatment rendered for the service-connected left shoulder and lumbar spine disabilities and the claimed right and left knee disabilities and the neurological disability of the arms to include tremors. The letter should invite the Veteran to submit any medical evidence or treatment records in support of the claims. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorizations, to enable VA to obtain any copies of any additional evidence. If the Veteran adequately identifies the health care providers and provides the completed authorizations, request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. 3. After completing all indicated development, readjudicate the claims remaining on appeal. Adjudicate the issue of TDIU, including, if necessary, pursuant to 38 C.F.R. § 4.16(b), referral of the TDIU claim to the VA Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular consideration. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran, and his representative and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs