Citation Nr: 1319892 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 10-04 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 10 percent disabling. 2. Entitlement to an initial rating in excess of 20 percent for left shoulder osteoarthritis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1956 to November 1976. The matter of an increased rating for bilateral hearing loss comes before the Board of Veterans' Appeals (Board) on appeal from February 2009 and June 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims (Court) held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. In the present case, the Board does not find an indication in the record that reasonably raised a claim of entitlement to a TDIU. FINDINGS OF FACT 1. Prior to June 14, 2007, the Veteran's service-connected right ear hearing loss is productive of no higher than level III hearing acuity. 2. The Veteran's service-connected bilateral hearing loss is productive of no higher than level IV hearing acuity in the left ear and level V hearing acuity in the right ear. 3. The Veteran is right-handed; his service-connected left shoulder disability has been manifested by limitation of motion of the left arm midway between side and shoulder level; limitation of motion to 25 degrees from side, impairment of the humerus, clavicle or scapula, or ankylosis of the scapulohumeral articulation are not shown. CONCLUSIONS OF LAW 1. Prior to June 14, 2007, a compensable rating is not warranted for the Veteran's service-connected right ear hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.85, 4.86 and Diagnostic Code 6100 (2012). 2. A rating in excess of 10 percent is not warranted for the Veteran's service-connected bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.85, 4.86 and Diagnostic Code 6100 (2012). 3. A rating in excess of 20 percent is not warranted for the Veteran's service-connected left shoulder disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided VCAA notices to the Veteran in August 2006 and March 2009. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, 18 Vet. App. at 120-121. Furthermore, these letters described how appropriate disability ratings and effective dates were assigned. Furthermore, for initial rating claims, where, as here, service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required since the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a NOD with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained pertinent treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran numerous VA examinations for both his hearing loss and left shoulder osteoarthritis disabilities. The Board finds these examination reports and opinions to be thorough, complete, and sufficient upon which to base a decision with regard to the Veteran's claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). All known and available treatment records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to adjudicate the issues addressed in the decision that follows and that no further action is necessary with respect to the issues adjudicated herein. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the Veteran as relevant to the issues adjudicated herein, and under these circumstances, no further action is necessary to assist the claimant with this appeal with respect to the issues adjudicated below. Legal Criteria, Factual Background and Analysis The Board notes that is has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Bilateral Hearing Loss In evaluating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). VA regulations require that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. An examination for hearing impairment for VA purposes must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). Table VI Numeric designation of hearing impairment based on puretone threshold average and speech discrimination. % of discrim- ination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Table VIA Numeric designation of hearing impairment based only on puretone threshold average Puretone Threshold Average 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI Table VII Percentage evaluation for hearing impairment (Diagnostic Code 6100) Poorer Ear XI 100* X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I VA regulations also provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. The Veteran submitted a claim for an increased evaluation for his hearing loss disability in July 2006. At this time, he was solely service-connected for right ear hearing loss. He submitted a private hearing acuity testing from November 2005, which included the results in graph form. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 70 80 105 LEFT 10 40 65 70 The private audiologist included a speech recognition score of 88 percent in the right ear and 88 percent in the left ear; however, it is unclear whether this speech recognition score was obtained using the Maryland CNC Test. At the time of this private November 2005 audiological evaluation, the Veteran was shown to have an average pure tone hearing loss in the right ear of 70 decibels, and with 88 percent speech discrimination, which translates to a Roman numeral designation of III for the right ear. 38 C.F.R. § 4.85, Table VI. As the Veteran was not service connected for left ear hearing loss at this time, as the non-service connected ear, it is assigned a Roman numeral designation of I. 38 C.F.R. § 4.85(f). The special provisions of 38 C.F.R. § 4.86 are not applicable. Thus, when applying Table VII, Diagnostic Code 6100, level III for the right ear, and level I for the left ear equates to a noncompensable disability rating. 38 C.F.R. § 4.85, Table VII. Therefore, an increased evaluation for right ear hearing loss is not warranted. The Veteran underwent a VA examination in September 2006, which included hearing acuity testing. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 75 90 105+ LEFT 20 45 75 75 The pure tone threshold average was 78 in the right ear and 54 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 96 percent in the left ear. These results translate to a Roman numeral designations of III for the right ear, and I for the left ear. 38 C.F.R. § 4.85, Table VI. The special provisions of 38 C.F.R. § 4.86 are not applicable. Thus, applying Table VII, Diagnostic Code 6100, level III for the right ear, and level I for the left ear equates to a zero percent disability rating. 38 C.F.R. § 4.85, Table VII. Bilateral hearing loss was diagnosed, and service connection for bilateral hearing loss was granted effective June 14, 2007. The Veteran submitted a VA audiological evaluation dated February 2008 in support of his claim for an increased rating. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 80 90 105+ LEFT 20 55 75 75 The pure tone threshold average was 79 in the right ear and 56 in the left ear. The Maryland CNC Test was not used to determined speech recognition; however speech recognition testing was conducted and revealed speech recognition ability of 92 percent in the right ear and 88 percent in the left ear. These results translate to a Roman numeral designation of II for the right ear, and II for the left ear. 38 C.F.R. § 4.85, Table VI. The special provisions of 38 C.F.R. § 4.86 are not applicable. Thus, applying level II for the right ear, and level II for the left ear equates to a zero percent disability rating. 38 C.F.R. § 4.85, Table VII. The Veteran underwent a VA examination in January 2009. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 75 90 105+ LEFT 25 50 80 80 The pure tone threshold average was 79 in the right ear and 59 in the left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 88 percent in the left ear. These results translate to a Roman numeral designation of V for the right ear, and III for the left ear. 38 C.F.R. § 4.85, Table VI. The special provisions of 38 C.F.R. § 4.86 are not applicable. Thus, applying level V for the right ear, and level III for the left ear equates to a 10 percent disability rating. 38 C.F.R. § 4.85, Table VII. In March 2009, received a report of private hearing acuity testing, dated February 2009, which included the results in graph form. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 80 85 105 LEFT 30 60 65 85 The private audiologist included a speech recognition score of 80 percent in the right ear and 88 percent in the left ear; however, it is unclear whether this speech recognition score was obtained using the Maryland CNC Test. The pure tone threshold average was 78 in the right ear and 60 in the left ear. These results translate to a Roman numeral designation of V for the right ear, and III for the left ear. 38 C.F.R. § 4.85, Table VI. The special provisions of 38 C.F.R. § 4.86 are not applicable. Thus, applying level V for the right ear, and level III for the left ear equates to a 10 percent disability rating. 38 C.F.R. § 4.85, Table VII. An additional VA examination was conducted in May 2010. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 75 95 105+ LEFT 25 60 85 90 The pure tone threshold average was 81 in the right ear and 65 in the left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 80 percent in the left ear. These results translate to a Roman numeral designation of V for the right ear, and IV for the left ear. 38 C.F.R. § 4.85, Table VI. The special provisions of 38 C.F.R. § 4.86 are not applicable. Thus, when applying Table VII, Diagnostic Code 6100, level V for the right ear, and level IV for the left ear equates to a 10 percent disability rating. 38 C.F.R. § 4.85, Table VII. In August 2010, the Veteran submitted a report of private hearing acuity testing, which included the results in graph form. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 65 85 100 LEFT 30 50 70 75 The private audiologist included a speech recognition score of 80 percent in the right ear and 92 percent in the left ear; however, it is unclear whether this speech recognition score was obtained using the Maryland CNC Test. The pure tone threshold average was 74 in the right ear and 56 in the left ear. These results translate to a Roman numeral designation of V for the right ear, and I for the left ear. 38 C.F.R. § 4.85, Table VI. The special provisions of 38 C.F.R. § 4.86 are not applicable. Thus, when applying Table VII, Diagnostic Code 6100, level V for the right ear, and level I for the left ear equates to a zero percent disability rating. 38 C.F.R. § 4.85, Table VII. This hearing acuity test actually showed that the Veteran's hearing improved since the previous examination. The Veteran most recently underwent a VA examination in September 2011. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 75 95 105+ LEFT 30 60 85 85 The pure tone threshold average was 81 in the right ear and 65 in the left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 94 percent in the left ear. These results translate to a Roman numeral designation of V for the right ear, and II for the left ear. 38 C.F.R. § 4.85, Table VI. The special provisions of 38 C.F.R. § 4.86 are not applicable. Thus, when applying Table VII, Diagnostic Code 6100, level V for the right ear, and level II for the left ear equates to a 10 percent disability rating. 38 C.F.R. § 4.85, Table VII. In a December 2011 statement, the Veteran's representative alleged that the Veteran had submitted numerous medical opinions and audiometric examinations which showed a continued worsening of his hearing. The Board has reviewed the entire record and finds that the private treatment records pre-date the most recent VA examination. Also, contrary to the representative's allegations, the August 2010 private audiometric examination actually showed a slight improvement in the Veteran's bilateral hearing loss. Therefore, there is no objective evidence of a continued worsening. It is clear from the medical evidence of record that a rating in excess of 10 percent for bilateral hearing loss is not warranted. As noted previously, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Applying the audiological test results, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to an initial compensable rating for bilateral hearing loss. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Left Shoulder Osteoarthritis The Veteran is right-handed; consequently, his left shoulder disability is of the minor (non-dominant) arm. His service-connected left shoulder disability is characterized by osteoarthritis. Limitation of the minor arm motion is rated 20 percent for limitation of motion at the shoulder level. A 20 percent rating is also assigned for limitation of motion at the midway between the shoulder and the side. A 30 percent rating requires limitation to 25 degrees from the side. 38 C.F.R. § 4.71a. Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. As the Veteran's service-connected left shoulder disability includes arthritis established by X-ray findings, it may also be rated under Code 5003, based on limitation of arm/shoulder motion. If limitation of motion of the arm/shoulder is noncompensable under the appropriate diagnostic code(s), a 10 percent rating may be assigned under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A note following Code 5003 stipulates that the 10 percent rating under Code 5003 may not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a. Other diagnostic codes for rating the shoulder disability do not apply as the pathology required, such as ankylosis or impairment of the humerus, clavicle or scapula, is not shown. 38 C.F.R. § 4.71a, Codes 5200, 5202, and 5203. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran submitted the original claim seeking service connection for left shoulder osteoarthritis in April 2008. Service connection was granted and assigned a 20 percent disability rating, effective the date of claim. The Veteran maintains that an initial higher rating is warranted due to such symptoms as pain and limited motion. The Veteran submitted a MRI report dated October 2007 which showed minimal osteoarthritic changes of the left shoulder. X-ray report from March 2008 showed mild degenerative changes. A MRI of the Veteran's left shoulder dated July 2008 showed at least significant partial tearing of the proximal long head of the biceps tendon versus a full thickness tear; full thickness tear of the supraspinatus tendon with some posterior fibers remaining; small partial thickness tear of the distal subscapularis tendon; infraspinatus tendonopathy; a tear involving the posterior inferior glenoid labrum; at least significant degenerative changes of the superior labrum; osteoarthritis changes and chondromalacia involving the glenhumeral joint; and a very small glenhumeral joint effusion. A physical therapy note from June 2008 showed range of motion for the Veteran's left shoulder was limited to 90 degrees flexion (normal is 180 degrees) and 78 degrees abduction (normal is 180 degrees). In August 2008, a physical therapy note showed the Veteran's range of motion increased to 120 degrees flexion and 90 degrees abduction. The Veteran underwent a VA examination in May 2009. The examiner noted the Veteran complained of worsening pain in his left shoulder, including soreness and spasms felt over the shoulder, upper trapezius and scapular muscles, and sometimes up the left side of the neck. The Veteran reported his pain was 8 out of 10 on a pain scale. The Veteran also reported pain with flare-ups on any overhead movement of the shoulder and at night when he rolls onto the shoulder. He also reported flare-ups with driving longer than one hour, and on cold and damp days. Limitation of motion during flare-ups was noted, however the examiner stated he could not give an exact degree of limitation without resorting to speculation. The Veteran did not wear a brace or other assistive device or do physical therapy. He reported that shoulder pain interfered with his daily activities, and that his wife completed the work around the house and yard because he was unable to do so. No incapacitating episodes were reported. With regard to employability, the examiner noted the Veteran owned a small real estate company, and took time off a few days every now and then due to left shoulder pain. On examination, the examiner noted the Veteran was right-handed, and avoided using the left arm as much as possibly to avoid pain. Examination showed no deformity, atrophy, swelling, tenderness of the neck or left trapezius muscle. There was tenderness over the anterior aspect of the shoulder joint. Range of motion studies showed flexion from 0 to 90 degrees, with pain starting at 70 degrees. Abduction was measured from 0 to 90 degrees, with pain starting at 70 degrees. External rotation was measured from 0 to 70 degrees with pain in the last 5 degrees; internal rotation was measured from 0 to 60 degrees with pain in the last 5 degrees. Repeated motion did not show additional limitation of motion due to pain, weakness, incoordination, or lack of endurance. The examiner noted positive Hawkins Impingement Test and Speed signs. There was no crepitus. The examiner also noted there was a slight decrease in the strength of the shoulder muscles because of the pain; it was noted there was normal sensation and reflexes in the left upper extremity. In September 2011, the Veteran was afforded another VA examination. The Veteran was diagnosed with gleno-humeral and acromioclavicular joint arthritis of the left shoulder. The examiner noted the Veteran was right-handed. At the examination the Veteran reported he had flare-ups caused by overhead activities, throwing, lifting and carrying. Range of motion studies showed flexion was measured to 100 degrees, with pain at 100 degrees. Left shoulder abduction was measured to 100 degrees, with pain at 100 degrees. The examiner noted the Veteran was able to complete repetitive testing without additional limitation of motion. The examiner noted the Veteran had less movement than normal, weakened movement, and pain on movement following repetitive testing. The Veteran had tenderness or pain on palpation of the left shoulder. It was noted that the Veteran did not have guarding of either shoulder. Muscle strength testing showed the Veteran's left shoulder measured 4 out 5, meaning there was active movement against some resistance. Ankylosis was not shown. The examiner noted positive Hawkins' Impingement Test, Empty-can test, and external rotation/infraspinatus strength test. There was a negative lift-off subscapularis test. No history of mechanical symptoms (clicking, catching) or recurrent dislocation were noted. With regard to the Veteran's acromioclavicular joint arthritis, the examiner noted there was tenderness on palpitation and that the cross-body adduction test was positive. No surgery was reported. The examiner noted x-rays documented arthritis. The examiner noted that the Veteran's left shoulder disability limits his ability to perform sports, exercise, chores, and shop. It is clear from the medical evidence of record that a rating in excess of 20 percent for left shoulder osteoarthritis is not warranted. The Veteran is right-handed; therefore his left arm is the minor arm. As such, a 20 percent rating is appropriate for motion limited midway between side and shoulder level. At the most recent examination, the Veteran demonstrated flexion measured to 100 degrees and abduction measured to 100 degrees. As such, motion is not limited to 25 degrees from the Veteran side. Therefore, a higher rating (to 30 percent) is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5201. As stated above, the Veteran is not entitled to a rating under any other diagnostic code for shoulder disabilities because the pathology required, such as ankylosis or impairment of the humerus, clavicle or scapula, is not shown. Additionally, as the Veteran's left shoulder disability is characterized by a compensable limitation of motion, Diagnostic Code 5003 is not for application. The Veteran's complaints of pain experienced in his left shoulder, functional loss due to flare-ups, pain on movement, and weakness were considered and are reflected in the 20 percent rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. While there was pain with range of motion testing, at worst, following repetitive testing in 2011 and after pain set in, flexion was still possible to 100 degrees (out of 180 degrees), and abduction was to 100 degrees (out of 180 degrees). There was no evidence of fatigability, lack of endurance, or incoordination of the left shoulder after repetitive use at any time. In summary, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to an increased disability rating for left shoulder osteoarthritis in this case. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Assignment of a staged rating is also not applicable. Fenderson, supra. Extraschedular Consideration The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion 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. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular 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. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further 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 extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a 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 extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. ORDER Entitlement to a compensable evaluation for the Veteran's service-connected right ear hearing loss, prior to June 14, 2007, is not warranted. Entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected bilateral hearing loss is not warranted. Entitlement to a disability evaluation in excess of 20 percent for the Veteran's service-connected left shoulder osteoarthrthritis is not warranted. The appeal is denied as to all issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs