Citation Nr: 1318640 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 07-20 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right shoulder disorder, claimed as secondary to a service-connected left shoulder disability. 2. Entitlement to a rating higher than 20 percent for the left shoulder disability, specifically, for status post left clavicle fracture with degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from October 1979 to June 1985. This appeal to the Board of Veterans' Appeals (Board) is from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2011 the Board remanded the claims to the RO via the Appeals Management Center (AMC) to be further developed before being decided on appeal. FINDINGS OF FACT 1. The Veteran's service-connected left shoulder disability is manifested by pain, painful motion, forward flexion to no worse than 60 degrees, and abduction to no worse than 60 degrees; there is no evidence of ankylosis or malunion of his clavicle, and at no time has there been limitation of motion of his left arm to 25 degrees from his side or of limitation and impairment approximating 25 degrees from his side. 2. His right shoulder disorder was not first manifested during his service; there is no competent evidence of arthritis in this shoulder to a compensable degree within the first year following his discharge from service; and the most competent and credible evidence, so ultimately probative, indicates his right shoulder disorder is unrelated to his military service and not caused or permanently exacerbated by his service-connected left shoulder disability. CONCLUSIONS OF LAW 1. The criteria are not met for a rating higher than 20 percent for the left shoulder disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs), 5003, 5201-5203 (2012). 2. The right shoulder disorder is not shown to be the result of disease or injury incurred in or aggravated by the Veteran's active duty service, may not be presumed to have been, and is not proximately due to, the result of, or aggravated by his service-connected left shoulder disability. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants with their claims for VA benefits upon receipt of a complete or substantially complete application. The VCAA was codified by statutes at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012), and the implementing VA regulations were codified, as amended, at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). To this end, VA must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform him of the information and evidence that VA will obtain; and (3) inform him of the information and evidence he is expected to provide. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). When the claim is for service connection, the notice should address all five elements of the claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and service, (4) disability rating, and (5) effective date. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The United States Court of Appeals for Veterans Claims (Court/CAVC) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that, to the extent possible, the VCAA notice also should be provided to the claimant before an initial unfavorable decision on the claim. Pelegrini at 119-20. If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively rectified ("cured") by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, a July 2006 pre-decisional letter provided the Veteran the required notice of the evidence and information necessary to substantiate his claims, the information required of him to enable VA to obtain evidence, and the assistance that VA would provide in obtaining supporting evidence. He also received notice consistent with Dingess as concerning the "downstream" disability rating and effective date elements of his claims, in the event service connection ultimately was granted (if not already). Although he was not also given notice of the type of evidence and information needed to substantiate a claim for service connection on direct and presumptive bases, he is not prejudiced by that omission since he does not assert his right shoulder disorder was caused or aggravated by any event or incident of his military service or that it should be presumed to have been. Instead, his claim for a right shoulder disorder is predicated entirely on the notion that it is secondarily related to his military service, meaning that it was caused or aggravated by his service-connected left shoulder disability. His assertions specifically define the parameters of his claim to this particular context, and he and his representative have shown their actual knowledge of the type of evidence and information needed to substantiate his claim on this specifically alleged basis in their statements and pleadings. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). So when considering his statements and pleadings, and the absence of evidence of a right shoulder disorder during his service or until many years after it had concluded, well beyond the presumptive period, and no competent and credible evidence alternatively linking his right shoulder disorder to his service-connected left shoulder disability, no benefit would flow to him and unnecessary delay would result if the Board was to remand his right shoulder claim merely to provide him additional notice concerning direct and presumptive service connection. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran). VA also has made reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims. His service treatment records (STRs) are in his claims file, and VA has obtained all pertinent/identified post-service records that could be obtained. The additional development of these claims directed by the Board's January 2011 remand was completed and all evidence, including constructively of record, has been obtained. Since the Veteran underwent a VA examination that is adequate to rate his left shoulder disability - including in terms of addressing the applicable rating criteria, since also a fully supported opinion was obtained regarding the etiology of his right shoulder disorder, and because his ongoing VA treatment records were obtained and added to the file for consideration, there was compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error, as a matter of law, in failing to ensure compliance). But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); and Dyment v. West, 13 Vet. App. 141, 146-4 (1999) (indicating situations when it is acceptable to have "substantial", even if not "exact" or "total", compliance with remand directives). The Board therefore is proceeding with the adjudication of these claims. Service Connection Legal Criteria and Analysis Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing entitlement to service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain diseases, including arthritis, are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). But if chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, recently held that continuity of symptomatology only can be used to establish this required linkage between the current condition and service if the condition is one of those explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis, as mentioned, is among the conditions listed in this VA regulation as chronic, per se. Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, though not always, required to associate the claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). So service connection may be established either by showing direct service incurrence or aggravation, or by using applicable presumptions, if available, or by showing the condition claimed is secondarily related to service, again, meaning either caused or permanently worsened by a service-connected disability. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is "credible", or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible). Only if the evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between 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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As already alluded to, the Veteran contends his right shoulder disorder was caused if not being aggravated by his service-connected left shoulder disability in that impairment of his left shoulder led to him compensating for this and overusing his right shoulder - hence, the now claimed about right shoulder disability. When deciding a claim for service connection, the Board must consider all potential bases of entitlement - so direct, presumptive and secondary. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). But although as mentioned not specifically raised by the Veteran, the Board finds that service connection for a right shoulder disorder as being directly or presumptively related to his military service is not warranted. His STRs are completely unremarkable for complaints, findings, or diagnosis of a right shoulder disorder. He served on active duty in the military from October 1979 to June 1985. There equally is no suggestion of a right shoulder disorder within the initial one year following the conclusion of his service, so meaning by June 1986, allowing for inception of arthritis to the required minimum compensable degree of at least 10-percent disabling to warrant presuming it was incurred in service. Arthritis must be objectively confirmed by X-ray. 38 C.F.R. § 4.71a, DCs 5003 and 5010. So mere lay evidence or opinion is insufficient to establish its presence, certainly not to the required minimum compensable degree. The first documented evidence or complaints referable to the shoulder were not until many years after service. In June 2005, so some 20 years after his service, the Veteran reported having multiple complaints including bilateral (so right and left) shoulder pain. X-rays of his right shoulder revealed DJD, i.e., arthritis, of the glenohumeral and acromioclavicular (AC) joints as well as calcific densities in the bicipital region. A magnetic resonance imaging (MRI) of his right shoulder indicates he had a history of chronic pain and limitation of this shoulder. The findings revealed AC joint hypertrophy with underlying impingement, supraspinatus tendonopathy versus partial tear, and regional calcific tendonitis. There are subsequent studies that continue to reflect impairment and contain findings of supraspinatus tendon tear, degenerative changes of the AC joint, and mild subdeltoid bursitis. See MRI and X-ray reports dated in September and November 2008. Since June 2005, complaints of right shoulder pain with exacerbations and findings of limitation of motion and arthritis were also documented. The Veteran reported a history of right shoulder pain, but dating back only one to two years without any precipitating traumatic event preceding the pain. See VA treatment records dated in July 2006, February 2007, September 2008, November2008, February 2009, November 2009. In July 2006 he indicated that he believed his civilian employment as a truck driver contributed to his joint complaints. So the first registered complaints or findings of a right shoulder disorder were not until 2005, thus, not until some 20 years after the Veteran separated from service. In this circumstance, the Board may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Consider also that the notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which, as mentioned, is an alternative means of linking the condition now claimed to service, although applying to arthritis since it is a condition listed in § 3.309(a) as "chronic", per se, nonetheless does not apply in this particular instance inasmuch as there was no indication or notation of arthritis during the Veteran's service. In other words, this notion of continuity of symptomatology only applies when a condition later complained about was first "noted" in service, which did not occur here. There also is no competent and credible evidence of a nexus between the Veteran's service and his right shoulder disorder. During an August 2006 VA examination, the examiner reviewed the claims file and observed the Veteran was never treated for right shoulder syndrome during his active duty. That notwithstanding, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence such as actual treatment records (STRs, etc.). See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Symptoms, not treatment for them, are the essence of any evidence of continuity of symptomatology. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Also in Buchanan, however, the Federal Circuit Court went on to recognize that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). That said, negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Still though, ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Here, given that there is no lay or medical evidence suggesting a direct link, or nexus, between the Veteran's military service and his current right shoulder disorder, the weight of the evidence is against finding this disorder is directly related to his service. Service connection for this claimed right shoulder disorder also may not be presumed because, while he is shown to now have arthritis in this shoulder, this was first found many years after his service and well beyond the one-year presumptive period following his discharge from service. Thus, the presumptive provisions are inapplicable. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Moving on to his primary contention - which again is that his right shoulder disorder is secondary to his service-connected left shoulder disability - there are three requirements for establishing entitlement to service connection on this alleged secondary basis. There must be: (1) medical evidence confirming the Veteran has the claimed disability; (2) a service-connected disability; and (3) competent and credible evidence of a causation or aggravation correlation between the disability being claimed and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, two of the three elements to establish secondary service connection are met. The Veteran's left shoulder disability is a service-connected disability and the record contains ample evidence establishing a diagnosis of a right shoulder disorder (namely, those already mentioned). However, the evidence falls short of establishing the required nexus or cause-and-effect between these two conditions, so this theory of entitlement fails as well. Medical opinions were obtained in August 2006 and May 2011. During the August 2006 VA compensation examination, the claims file was reviewed and pertinent aspects of the Veteran's medical history noted. The examiner opined that the right shoulder disorder was not caused by or the result of the left shoulder disability. The reasoning was that right shoulder arthritis/impingement syndrome was not caused by the service-connected left shoulder disability. Since, however, the examiner's rationale essentially was a mere restatement of the opinion and did not address the additional aggravation aspect of secondary service connection, this opinion was inadequate. Two opinions, not just one, are required for secondary service connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). More recently, during a May 2011 VA compensation examination, the claims file resultantly was again reviewed and the Veteran reexamined. He explained that he had experienced an onset of right shoulder pain without precipitating trauma and that he was told by another physician that it was due to the service-connected left shoulder disability. But the connection between what a physician supposedly said and the layman Veteran's account of what the physician purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent evidence in support of a claim for service connection. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The evaluating VA physician disagreed with this notion, concluding instead the right shoulder disorder was less likely than not proximately due to, the result of, or chronically aggravated by the service-connected left shoulder disability, in particular from overuse of the right arm and shoulder to compensate for the functional and other impairment in the left shoulder due to the service-connected disability. He explained that, when the Veteran had overuse of the right arm and shoulder to compensate for the functional and other impairment in his left shoulder due to the service-connected left shoulder disability, his right shoulder would be expected to have more movement (more range of motion due to overuse), which did not occur in his case as he had no overuse of his right shoulder. The evaluating VA examiner attributed the pathology of the right shoulder instead to other causes such as DJD. He added there is no evidence in the medical literature that overuse can cause radiographic findings of DJD, or vice versa, and that the causal and aggravating factors of the right shoulder condition is the natural wear and tear of the joint, which is expected due to the Veteran's age and DJD. There is no evidence to refute or contradict the examiner's opinion and rationale. Since the examiner is deemed competent to offer an opinion and the opinion itself was based in part on consideration of the medical history and the Veteran's assertions, it is probative in determining whether there is a nexus between the two disabilities. This VA examiner's opinion was based on reasonable medical principles that are supported by the evidentiary record and, as importantly, contained discussion of the underlying rationale, which is where most of the probative value is derived, not from mere review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing, in great detail, how to assess the probative weight of medical opinions and the value of reviewing the claims file). The Veteran's unsubstantiated lay opinion of a correlation between his right and left shoulder disabilities is less probative than the VA examiner's unfavorable opinion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Therefore, to summarize, there is an absence of competent and credible evidence relating the Veteran's right shoulder disorder directly or presumptively to his military service or secondarily to his service-connected left shoulder disability, either in the way of causation or aggravation. Consequently, the preponderance of the evidence is against this claim. This being the case, the benefit-of-the-doubt doctrine is inapplicable, and this claim resultantly must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Rating Legal Criteria and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The degrees of disability specified are considered adequate to compensate him for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation in that the rating is "staged". See Hart v. Mansfield, 21 Vet. App. 505 (2007) (concerning established ratings); and Fenderson v. West, 12 Vet. App. 119 (1999) (pertaining to initial ratings). Service connection for a left shoulder disability was established in an April 1995 rating decision and was initially rated 10-percent disabling under 38 C.F.R. § 4.71a, DCs 5203-5003. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). In a July 2005 rating decision, the rating was increased to 20 percent. The Veteran contends that his service-connected left shoulder disability warrants an even higher rating. His left shoulder is his non-dominant upper extremity. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. DC 5200 provides that ankylosis of the scapulohumeral articulation is to be rated as follows: favorable ankylosis, with abduction to 60 degrees, can reach mouth and head, 30 percent for the major shoulder and 20 percent for the minor shoulder; intermediate ankylosis, between favorable and unfavorable, 40 percent for the major shoulder and 30 percent for the minor shoulder; unfavorable ankylosis, abduction limited to 25 degrees from side, 50 percent for the major shoulder and 40 percent for the minor shoulder. A Note provides that the scapula and humerus move as one piece. 38 C.F.R. § 4.71a. DC 5201, for a non-dominant shoulder relates to limitation of arm motion and provides 20 percent ratings when arm motion is limited to shoulder level or midway between side and shoulder level. A higher and maximum rating of 30 percent is assignable when arm motion is limited to 25 degrees from side. 38 C.F.R. § 4.71a. DC 5202 provides ratings for other impairment of the humerus. Malunion of the humerus with moderate deformity is rated as 20 percent for the minor shoulder; malunion of the humerus with marked deformity is rated 20 percent for the minor shoulder; recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, are rated 20 percent for the minor shoulder; and recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, are rated 20 percent for the minor shoulder. Fibrous union of the humerus is rated 40 percent for the minor shoulder. Nonunion of humerus (false flail joint) is rated 50 percent for the minor shoulder. Loss of head of the humerus (flail shoulder) is rated 70 percent for the minor shoulder. 38 C.F.R. § 4.71a. DC 5203 provides ratings for other impairment of the clavicle or scapula. Malunion of the clavicle or scapula is rated 10 percent for the minor shoulder. Nonunion of the clavicle or scapula without loose movement is rated 10 percent for the minor shoulder; nonunion of the clavicle or scapula with loose movement is rated 20 percent for the minor shoulder. Dislocation of the clavicle or scapula with loose movement is rated 20 percent for the minor shoulder. DC 5203 provides an alternative rating based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a. DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 pct and 10 pct ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate DCs, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate DCs, the compensable limitation of motion should be rated under the appropriate DCs for the specific joint or joints involved. 38 C.F.R. § 4.71a. In rating a service-connected disability, all applicable DCs must be considered. In Butts v. Brown, 5 Vet. App. 532 (1993), the Court held that the selection of the proper DC is not a question of law subject to the de novo standard of review. Accordingly, the Court held in Butts that as VA and the Board possess specialized expertise in determining the application of a particular DC to a particular condition, their determination is due greater deference. Indeed, the Court also has held that, although the reason for the change must be explained, the VA and the Board may change the DCs under which a disability or disabilities are evaluated. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). In a fairly recent decision, the Court held that 38 C.F.R. § 4.59 provided for the possibility of a rating based on painful motion of a joint, regardless of whether the disability in question was arthritis. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Burton, the Court found that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair. Id., at *5. Here, though, unlike in Burton, this is indeed being addressed but does not provide reason for an increase in the rating. Pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). When evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id., at 37. In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id., at 36. Moreover, when the DC is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In June 2005, the Veteran was seen for an orthopedic consult due to multiple joint pains that included his left shoulder. He reported having constant left shoulder pain that increased with sudden shoulder motion. His pain ranged from 5-10/10 in severity. On examination of the left shoulder, abduction and forward flexion were to 90 degrees without pain, but there was moderate crepitus. A July 2006 VA treatment record indicates the Veteran reported that his left shoulder recently had become painful and was equal to his right shoulder pain. August 2006 X-rays revealed degenerative changes, moderate narrowing of the AC joint space, minimal osteophytic spurring, and slight deformity of the clavicle. During his August 2006 VA examination, the Veteran reported that his left shoulder pain progressively had worsened since his initial injury in service. He did not have any joint deformity, instability, stiffness, weakness, locking, effusion, or subluxation. On active range of left shoulder motion forward flexion and abduction were from 0 to 90 degrees with pain beginning at 60 degrees and ending at 90 degrees. External rotation was from 0 to 30 degrees against gravity with pain beginning at 20 degrees and ending at 30 degrees. Internal rotation against gravity was from 0 to 45 degrees and without pain. There was no additional limitation of motion with repetitive motion. Ankylosis was not found on examination. A February 2007 orthopedic clinic note shows the Veteran complained of shoulder pain that was rated 2 in severity. Range of motion studies revealed left shoulder abduction to 120 degrees and forward flexion to 140 degrees. September 2008 X-rays of the left shoulder revealed mild degenerative changes involving the AC and glenohumeral joint. In February 2009, the Veteran reported having constant left shoulder pain that was 4/10 in severity. He was unable to complete physical therapy because he did not have sick leave to use for work. A November 2009 VA treatment record notes his complaints of shoulder pain were 6/10 in severity. On examination there was joint pain or swelling. During his May 2011 VA compensation examination, the Veteran reported that his left shoulder pain had not been as severe when moving and using his shoulder as when he had his previous compensation examination. He added that the "cooling period" after using his arm was when the shoulder pain was strong. He had last had left shoulder surgery in 2003 and his current symptoms included deformity, giving way, and incoordination, weakness, daily or more episodes of locking, and tenderness. On physical examination, there was tenderness and pain at rest. Left shoulder flexion was from 0 to 90 degrees, abduction was from 0 to 85 degrees, external rotation was from 0 to 25 degrees, and internal rotation was 0 to 15 degrees. There was objective evidence of pain with active motion and on repetitive motion. Flexion and abduction were both decreased to 80 degrees on repetitive motion. There was no evidence of shoulder ankylosis. The examiner indicated the Veteran was then currently working as a self-employed marine mechanic and that, during the past 12-month period, so year, he had missed 2 weeks of work because of his shoulder pain. The diagnoses were old, well-healed left clavicle fracture and mild DJD of the AC joint. Problems associated with the bilateral shoulder pain were decreased manual dexterity; problems with lifting, carrying, and reaching; and pain. He had difficulty on his job due to the above symptoms and he was unable to do house chores or change a car tire, and he had difficulty dressing. The effects of the shoulder problem on the usual daily activities were severe regarding chores; moderate regarding bathing, dressing, toileting, and driving; mild regarding recreation and traveling; and they prevented him from exercise and sports. In September 2011 the Veteran was seen in the emergency room for left shoulder pain that was severe and traveled up through his neck and down through his arm. He worked as a boat mechanic, which placed great strain on his arms and shoulders. An examination of his left shoulder was unremarkable, but he appeared to have bursitis/tendonitis caused by repetitive movement of the joint. He was treated with Tylenol and ice and advised to rest at home for 3 days. See Virtual VA record. In order to warrant a higher 30 percent rating, the service-connected left shoulder disability has to cause arm motion limited to 25 degrees from the side. The evidence of record however shows that left arm motion has been limited to approximately shoulder level (meaning to 90 degrees or thereabouts) throughout the pendency of this appeal. Even when taking into consideration notable symptoms such as painful motion that began at 60 degrees, incoordination and weakness, the left shoulder disability does not approximate limitation of motion commensurate with a 30 percent rating. In other words even considering the Veteran has just what amounts to 60 degrees of motion, since this is the point at which his pain starts, still far exceeds the 25-degree limitation required for a higher 30 percent rating. Indeed, 60 degrees is over twice as much range of motion, still. Therefore, additional factors such as those outlined in DeLuca, while considered, do not provide grounds for a higher rating. See 38 C.F.R. § 4.40, 4.45 and 4.59; see also DeLuca, 8 Vet. App. at 204-07. The only other DCs related to shoulder disabilities providing ratings higher than 20 percent are inapplicable. Specifically, the Veteran left shoulder disability has not been shown to be manifested by ankylosis or dislocation of the humerus. See DCs 5200, 5202. Ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (quoting from Stedman's Medical Dictionary 87 (25th ed. 1990). See also Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). See, too, Coyalong v. West, 12 Vet. App. 524, 528 (1999); and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Because the Veteran has retained a quantifiable range of motion of his left shoulder in all directions, even despite his complaints of pain and even accepting that he certainly does not have normal range of motion, to the contrary, far from it, means that by definition his left shoulder is not ankylosed. Extra-schedular Consideration In considering this claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). See also Floyd v. Brown, 9 Vet. App. 88 (1996) (reiterating the Board is precluded by regulation from assigning an extra-schedular rating under 38 C.F.R. § 3.321(b) (1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations). The criteria for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b) (1). The Court has held that the Board must address referral under 38 C.F.R. §3.321(b) (1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id., at 115. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If instead the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id., at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extra-schedular rating. Id. In this case, the symptoms described by the Veteran (i.e., pain, painful motion, and limitation of motion, incoordination, and weakness) fit squarely with the criteria found in the relevant DCs for the evaluation of the disability at issue. The impairment from his left shoulder disability directly corresponds to the schedular criteria. In short, then, the rating criteria contemplate not only his specific symptoms but also the consequent severity of his disability. Hence, referral for extraschedular consideration is not warranted. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER The claim of entitlement to service connection for a right shoulder disorder, including secondary to the service-connected left shoulder disability, is denied. The claim for a rating higher than 20 percent for the left shoulder disability also is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs