Citation Nr: 1320191 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 03-23 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for a right shoulder disability, rated 10 percent through December 5, 2003, as 20 percent from December 6, 2003, to September 4, 2009, and currently rated at 30 percent as of September 5, 2009. 2. Entitlement to an initial increased rating for a right rotator cuff tear, currently rated at 20 percent. 3. Entitlement to an initial increased rating for a right bicep tendon tear, currently rated at 10 percent. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1956 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that continued the previously established 10 percent rating for the Veteran's right shoulder disability. A December 2003 increased the rating to 20 percent effective December 6, 2003. This increase was only a partial grant of the benefit sought, as an even higher rating was possible, so the appeal continued. AB v. Brown, 6 Vet. App. 35 (1993). In a March 2006 decision, the Board denied an increased rating for the Veteran's right shoulder disability. He appealed to the United States Court of Appeals for Veterans Claims. A December 2006 Order by this court remanded his right shoulder disability rating back to the Board for readjudication in accordance with a Joint Motion for Partial Remand (JMPR). The Board took the JMPR, which found the reasons and bases for the Board's denial to be inadequate, into account and remanded for additional development in August 2007, April 2010, September 2011, and September 2012. Adjudication now may proceed since that development has been fully or at least substantially completed. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Of note is that the aforementioned development resulted in a December 2009 rating decision by the Appeals Management Center (AMC) that increased the Veteran's rating for his right shoulder disability to 30 percent effective September 5, 2009. A March 2011 AMC rating decision granted service connection and assigned an initial rating of 10 percent for a right bicep tendon tear effective February 23, 2001. Finally, a May 2013 AMC rating decision granted service connection and assigned an initial 20 percent rating for a right rotator cuff tear effective July 5, 2006. This increased rating and initial ratings are only a partial grant of the benefit sought, since even higher ratings are possible, so the appeal continues encompassing them all. AB v. Brown, 6 Vet. App. 35 (1993). The following decision is based on review of the Veteran's claims file and Virtual VA electronic claims file. Please note this matter has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran's right shoulder disability did not manifest limitation of motion of the arm to at shoulder level for the period through December 5, 2003, to midway between the side and shoulder level for the period from December 6, 2003, to September 4, 2009, or to 25 degrees from the side for the period beginning September 5, 2009. 2. Muscle injury for the period through December 5, 2003, was not moderately severe, while it was not severe for the period from December 6, 2003, to July 4, 2006. 3. The Veteran's right rotator cuff tear, though it manifests weakness and similar symptoms as well as some atrophy, is not severe. 4. The Veteran's right bicep tendon tear, though it manifests weakness and similar symptoms, is not moderately severe. CONCLUSIONS OF LAW 1. The criteria for an increased rating for a right shoulder disability for the period through December 5, 2003, for the period from December 6, 2003, to September 4, 2009, and for the period beginning September 5, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5201, 4.73, Diagnostic Code 5304 (2012). 2. The criteria for an initial increased rating for a right rotator cuff tear have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.56, 4.69, 4.73, Diagnostic Code 5304 (2012). 3. The criteria for an initial increased rating for a right bicep tendon tear have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.56, 4.69, 4.73, Diagnostic Code 5305 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits, VA has a duty to notify claimants. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159 (2012). VA must inform the claimant and his representative of any information and any evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). With respect to an increased rating, generic rather than specific information of the evidence needed to substantiate the claim must be provided. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (overturning Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008)). Information on how ratings and effective date for service-connected disabilities are assigned also must be included. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided prior to the initial decision by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, there is no error in failing to provide prior notice if it was not required at the time. Subsequent VA process following notice instead must be provided. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found. Via letter dated in July 2001, he and his representative at the time were informed of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This was prior to the initial adjudication by the RO, which in this matter is also the AOJ, in the November 2001 rating decision. The Veteran and his representative first were informed of how ratings and effective dates are determined in a March 2006 letter. While this was after the initial adjudication by the RO/AOJ, it immediately followed caselaw first requiring such notification. Subsequent VA process occurred when numerous supplemental statements of the case were issued. Repeat partial or full notification was provided in an August 2007 letter, sent pursuant to the Board's August 2007 remand, as well as in December 2009 and April 2011 letters. In sum, there is no defect in notice content or timing. Even if such a defect did exist, however, it is harmless because the Veteran has had a meaningful opportunity to participate in the processing of this matter. The essential fairness of adjudication thus has not been impacted. In addition to the duty to notify, VA has a duty to assist claimants. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). VA is required to aid the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c)(1-3) (2012). VA also is required to provide a medical examination and/or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran has had many opportunities to identify pertinent records throughout the pendency of this matter. His service treatment records, VA treatment records, and identified private treatment records have been obtained by VA. Some of the VA treatment records were obtained in compliance with the Board's August 2007, September 2011, and September 2012 remands, while the identified private treatment records were obtained in compliance with the August 2007 remand. VA medical examinations were conducted in August 2001, in December 2003, as well as in September 2009, October 2010, September 2011, December 2012, January 2013, and March 2013 pursuant to the Board's remands. To the extent the claims file and Virtual VA electronic claims file were not reviewed by the examiners performing these examinations, it is of no great import since the Veteran gave an accurate account of his medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008). He also was interviewed regarding his symptoms by each examiner. Each finally undertook a physical assessment of the Veteran. Although the previous examiners did not make specific findings required by the Board in its remands, as discussed therein, the December 2012 through March 2013 examiners did. All these actions have provided sufficient detail so that the determinations made herein are fully informed. As such, the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). It is significant that neither the Veteran nor his representative has identified any additional action necessary for fair adjudication that has not been completed. The record also does not indicate any such action. Accordingly, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Adjudication thus may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings Ratings are based upon VA's Schedule for Rating Disabilities. Separate Diagnostic Codes identify various disabilities and the criteria for a specific rating to be assigned for that disability. The ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C.A. § 1155 (West 2002). A rating is assigned by comparing the extent to which a Veteran's service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the rating criteria. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.10 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2012). Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the rating accurately compensates the disability present. 38 C.F.R. § 4.2 (2012). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). However, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran thus prevails if the evidence supports a higher evaluation or is in relative equipoise but does not prevail when it is against a higher evaluation. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where an appeal arises from an initially assigned rating, consideration must be given to whether staged ratings are warranted. Fenderson v. West, 12 Vet. App. 119 (1999). The same consideration further must be given where an increase in a previously established rating is at issue. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which a disability exhibited symptoms meeting the criteria for different ratings during the course of the appeal, a different rating for each of the time periods therefore will be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Upper extremity ratings depend on whether the disabled extremity is the major or minor extremity. The major extremity is the one predominantly used by the Veteran. Only one extremity may be considered to be major. 38 C.F.R. § 4.69 (2012). All indications are that the Veteran is right handed. His disabled right upper extremity thus is his major extremity. Here, the Veteran's right shoulder disability has been rated under Diagnostic Code 5010-5201. 38 C.F.R. § 4.71a (2012). Hyphenated Diagnostic Codes are used when the rating for a disability under one Diagnostic Code is based upon the rating under another Diagnostic Code. 38 C.F.R. § 4.27 (2012). The first Diagnostic Code is for the disability. 38 C.F.R. § 4.27 (2012). The second Diagnostic Code is for the disability found to be most analogous. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5010 pertains to traumatic arthritis substantiated by X-rays. It calls for evaluation pursuant to Diagnostic Code 5003, which addresses degenerative arthritis established by X-rays. Ratings are to be made thereunder based on limitation of motion under the appropriate Diagnostic Code(s) for the specific joint or joints involved. If this results in a noncompensable rating, a 10 percent rating is assigned for each major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or painful motion. In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups warrants a 10 percent rating. The same with occasional incapacitating exacerbations warrants a 20 percent rating. Diagnostic Code 5201 addresses limitation of motion of the arm. It establishes a 20 percent rating for limitation in the major extremity at shoulder level. A 30 percent rating in the major extremity requires limitation midway between the side and shoulder level. The maximum rating of 40 percent in the major extremity is reserved for limitation to 25 degrees from the side. Normal shoulder range of motion is from 0 to 180 degrees flexion and abduction. 38 C.F.R. § 4.71 (2012). Of note, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2012). Functional loss in the form of limitation of motion may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, or weakness. 38 C.F.R. §§ 4.40, 4.59 (2012). It also may be due to excess fatigability or incoordination. 38 C.F.R. § 4.45 (2012). A higher rating for functional loss, to include during flare ups, due to those factors accordingly may be assigned under Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's right rotator cuff tear has been rated under Diagnostic Code 5304, while his right bicep tendon tear has been rated under Diagnostic Code 5305. 38 C.F.R. § 4.73 (2012). Diagnostic Code 5304 addresses injury to muscle group IV, the intrinsic muscles of the shoulder girdle to include the supraspinatus, infraspinatus and teres minor, subscapularis, and coracobrachialis. Diagnostic Code 5305 addressed injury to muscle group V, the flexor muscles of the elbow to include the biceps, brachialis, and brachioradialis. Each Diagnostic Code calls for a noncompensable rating for slight injury and a 10 percent rating for moderate injury to the major upper extremity. Moderately severe injury to the major upper extremity warrants a 20 percent rating under Diagnostic Code 5304 and a 30 percent rating under Diagnostic Code 5305. A maximum rating of 30 percent under Diagnostic Code 5304 and 40 percent under Diagnostic Code 5305 is for severe injury. Cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c) (2012). A moderate muscle disability results from a through and through or deep penetrating wound of short track from a single bullet or small shell or shrapnel fragment without explosive effect of high velocity missile with residuals of debridement or prolonged infection. It is characterized by one or more of the cardinal signs and symptoms, particularly lowered threshold of fatigue after average use. Findings include small or linear entrance and exit scars, some loss of deep fascia or muscle substance or impairment of muscle tonus, and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2) (2012). A moderately severe muscle disability results from a through and through or deep penetrating wound by a small high velocity missile with debridement, prolonged infection, or sloughing of soft parts and intermuscular scarring. It is characterized by consistent cardinal signs and symptoms and, if present, evidence of inability to keep up with work requirements. Findings include indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared to the sound side and tests of strength and endurance compared with the sound side demonstrating positive evidence of impairment. 38 C.F.R. § 4.56(d)(3) (2012). A severe muscle disability results from a through and through or deep penetrating wound due to high velocity missile, a large or multiple low velocity missiles, shattering bone fracture, or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts and intermuscular binding and scarring. It is characterized by consistent cardinal signs and symptoms worse than those shown for moderately severe muscle injuries and, if present, evidence of inability to keep up with work requirements. Findings include palpation showing loss of deep fascia, muscle substance, or soft flabby muscles, abnormal muscle swelling and hardening in contraction, and tests of strength, endurance, and coordinated movements showing severe impairment of function compared with the corresponding muscles of the sound side. Other findings include, if present, X-rays showing minute multiple scattered foreign bodies, adhesion of a scar to one of the long bones or scapula with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle, diminished muscle excitability to pulsed electrical current in electrodiagnostic tests, visible or measurable atrophy, and adaptive contraction of an opposing group of muscles, atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle, and induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4) (2012). The probative value of the evidence must be assessed. 38 C.F.R. § 4.6 (2012). In other words, the Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The competency and credibility of lay evidence in addition to medical evidence therefore must be assessed. Layno v. Brown, 6. Vet. App. 465 (1994). Even though all the evidence has been reviewed, only the most relevant evidence is discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). According to service treatment records, the Veteran injured his right shoulder and elbow a few times. The last was from ejecting from his airplane. His symptoms were minimal at first, but he ultimately developed right arm soreness and weakness. There was no obvious atrophy, but there was tenderness and crepitus in the shoulder. There also was a right bicep tendon tear, which was repaired in 1977. The surgical scar healed well. However, the right arm was moderately deformed due to shortening of the bicep and had decreased strength compared to the left. The Veteran complained of right shoulder pain which is worse at night while sleeping at the August 2001 VA medical examination. He noted that he limits the lifting he does out to the side and behind his back. There was a well healed scar over his right proximal humerus and an obvious defect of the right bicep. The right shoulder was tender to very tender, but it had full range of motion. Strength in the right rotator cuff, bicep, tricep, and deltoid was a normal 5/5, but resisted external rotation of the rotator cuff caused pain. Sensation was intact. Lost right arm strength and numbing right shoulder pain when sleeping or exercising were noted by the Veteran in his November 2002 notice of disagreement. Upon VA medical examination on December 6, 2003, the Veteran reported taking pain medication for significant right shoulder pain and limitation of motion when reaching over his head or behind and significant pain at night which awakens him from his sleep. He also reported weakness. There was a well healed incision on the proximal anterior aspect of the right arm. There also was significant atrophy of the supraspinatus and infraspinatus muscle bellies posteriorly in this shoulder, and it was tender. The right biceps tendon had noted popping. Right shoulder range of motion was significantly decreased, with 90 degrees of flexion and 100 degrees of abduction. That pain after increased activity could cause additional limitation of motion was deemed conceivable, but it was concluded that the amount of such additional limitation cannot be determined with any degree of medical certainty. Strength in the right rotator cuff musculature, specifically the supraspinatus, infraspinatus, and subscapularis, was severely limited at 3/5. Strength in the right bicep was 4/5. Strength on the left was 5/5. The right arm was neurovascularly intact with normal sensation. VA treatment records dated in 2004 and 2005 contain the Veteran's complaints of worsening right shoulder pain to include every night. Medication was prescribed. The Veteran stated on his August 2005 VA Form 9 that his right bicep is weaker than his left and that he cannot reach up with his right arm as well as he can with his left. He also stated that he has a great deal of pain after normal use and if he sleeps on his right side. Finally, he stated that driving causes pain and tiredness. In 2006 VA and private treatment records, the following is reflected. The Veteran received injections and took medication for right shoulder pain. He reported trouble with this shoulder when doing overhead activity in February. He had full range of motion in this shoulder and 5/5 strength in all his right upper extremity muscles. X-rays showed arthritis. The Veteran had pain after a fall in July. There was a well healed incision on the anterior aspect of his right shoulder. Strength was 4+/5 in the supraspinatus and 4/5 with resisted external rotation. In August, the Veteran complained of pain with abduction and raising his right shoulder. Range of motion in this shoulder was full, but isolated supraspinatus and external rotation strength was 4/5. Range of motion in this shoulder was full with 5/5 strength except for resisted external rotation in September. Significant atrophy of the right supraspinatus and infraspinatus was found in October. Range of motion in the Veteran's right shoulder was full, but there was 4+/5 isolated supraspinatus and external rotation strength. In an October statement, the Veteran indicated that his right shoulder has gotten so bad he cannot lift his right hand to shave or comb his hair and cannot lift anything above his waist. A March 2007 VA treatment record contains the Veteran's complaint that his right shoulder hurts worse at night. He noted in an August 2007 statement that he had to stop playing tennis and that hiking was difficult due to his worsening and very painful right shoulder and left knee. He also noted that he owns and operates a tree farm, which requires a lot of lifting. He complained it is very difficult for him to lift his right arm above shoulder level to include with a light object such as a razor. VA and private treatment records dated in 2008 and 2009 document the following. The Veteran complained of quite a bit of right shoulder pain in July 2008. There was a lot of atrophy of the right supraspinatus and infraspinatus fossa. There further was full motion but 4+/5 isolated supraspinatus and external rotation strength. In December 2008, the Veteran reported right shoulder pain rated as 8/10 with lifting or overhead use. He also reported 7/10 pain before physical therapy and 8/10 after. There was mild atrophy of the right shoulder as well as minimal tenderness and crepitus/grinding, but no swelling, palpable effusion, bony abnormality, or asymmetry. Range of motion in this shoulder was flexion and abduction to 90 degrees with verbalized difficulty on one occasion, while it was flexion to 95 degrees and abduction to 92 degrees on another. Decreased strength in addition to decreased range of motion was mentioned on one occasion, but motor strength was 5/5 on another. The right arm was neurovascularly intact with normal sensation. In 2009, VA and private treatment records reveal the following. The Veteran's right shoulder pain was a constant 7/10 before and after physical therapy in February. Its range of motion was flexion to 143 degrees and abduction to 140 degrees. The Veteran's right shoulder pain was 6-7/10 in March. There was mild atrophy of the right shoulder as well as minimal tenderness and crepitus/grinding, but no swelling, palpable effusion, bony abnormality, or asymmetry. Range of motion in this shoulder was flexion and abduction to 90 degrees with verbalized difficulty. Motor strength was 5/5. The right arm was neurovascularly intact with normal sensation. In March, the Veteran underwent aspiration of a ganglion cyst in his right acromioclavicular (AC) joint that formed following an injection. He had full motion but 4+/5 isolated supraspinatus and external rotation strength in this shoulder in April. His deep tendon reflexes were equal and symmetric. Aspiration of the Veteran's cyst occurred again in June. The same findings made in March were made then and in July. The Veteran's cyst ultimately was surgically removed. The Veteran reported right shoulder pain at 8/10 with flare ups every day due to exercise or working on his tree farm at the September 5, 2009, VA medical examination. He indicated that his ability to use his arm for overhead activity was limited, and that his cyst had been removed the day before. The surgical dressing was still on, and his right shoulder was diffusely tender. Its range of motion was to 50 degrees flexion and abduction with pain throughout. Repetition did not cause any change. That increasing pain after activity could cause additional limitation of motion was deemed feasible, but it was concluded that medically determining the amount of such additional limitation would be a matter of mere speculation. The Veteran's strength was 4/5 in his biceps and triceps and 5/5 otherwise. He could feel light touch throughout and had brisk capillary refill. At the October 2010 VA medical examination, the Veteran complained of taking pain medication for increasing right shoulder pain at 8/10 which is worse when he sleeps on his right side, performs overhead activity, or raises the shoulder. He also complained of loss of normal shoulder contour since his cyst was removed. He asserted that his shoulder disability had a significantly affect on his tree farming business, which requires that he lift over his head and lift heavy objects. The Veteran stated that he uses his left arm to assist in lifting. He further noted that he has difficulty shaving, combing his head, reaching behind, and reaching for objects off shelves or in cabinets. He denied numbness, tingling, and motor dysfunction. There were two incisions on the right arm, one superiorly and one in the anterior deltopectoral area, that were well healed. There also was some trapezial atrophy in addition to tenderness and crepitus. Right shoulder range of motion was to approximately 70 degrees flexion and abduction with significant irritation. Repetition produced no change. That increasing pain after using the right shoulder all day could cause additional limitation of motion was deemed conceivable, but it was concluded that the amount of such additional limitation cannot be determined with any degree of medical certainty. Motor strength was 5/5 in the biceps and triceps and 4/5 in the right trapezius, in the deltoid, with resisted internal rotation, and when performing an unnamed maneuver. It was 3/5 with resisted external rotation and when performing Jobe's maneuver. The Veteran had axillary and nerve dermatomes. His sensation to light touch in the right arm was intact. 2011 VA treatment records document the following. In March, the Veteran reported that his right shoulder pain had intensified from moderate to severe and now occurred even when he was lying down and not active even though he takes pain medication. He also reported slight swelling. The Veteran had right shoulder pain at 6-7/10 in June. There was significant atrophy of this shoulder but no significant tenderness and no instability. Range of motion was flexion to 100 degrees and abduction to 85 degrees. Muscle strength was 5/5. The Veteran's right arm was neurovascularly intact, as was its sensation. He reported right shoulder pain at 7/10 in July. In doing so, he noted that he could perform activities but had pain after prolonged overhead and lifting activity. The same findings made in June were made again, with the addition of there being no bony or soft tissue abnormality. An injection procedure was performed. The Veteran reported progressively worsening right shoulder pain with flare ups rendering him unable to hold heavy objects with his right hand or lift his right arm over his head at the September 2011 VA medical examination. He particularly noted difficulty using a chainsaw on his tree farm. His scars were not painful, unstable, or greater than 39 square centimeters. There was localized tenderness, guarding, and mechanical clicking/catching or similar of the right shoulder, but there was no ankylosis of the scapulohumeral articulation, history of dislocation or subluxation of the scapulohumeral joint, AC joint condition, or other impairment of the clavicle or scapula. Its range of motion was to 115 degrees flexion and to 110 degrees abduction, both with pain beginning at 70 degrees. There was no change with repetition. In addition to pain on movement, excess fatigability and atrophy from disuse were referenced. Motor strength was 3/5 with shoulder flexion and abduction. At the December 2012 VA medical examination, the Veteran reported increasing right shoulder pain and weakness especially with lifting and activity above shoulder level. He particularly noted difficulty lifting a chainsaw for use on his tree farm. He also reported flare ups of increased pain at night causing additional limitation to his shoulder range of motion. The Veteran's scars were not painful, unstable, or greater than 39 square centimeters. There was localized tenderness of the right shoulder, but there was no guarding, mechanical clicking/catching or similar, ankylosis of the scapulohumeral articulation, history of dislocation or subluxation of the scapulohumeral joint, AC joint condition, or other impairment of the clavicle or scapula. Its range of motion was to 95 degrees flexion with pain beginning at 60 degrees and to 70 degrees abduction with pain beginning at 45 degrees. There was no change with repetition. In addition to less movement than normal and pain on movement, weakened movement was referenced. Motor strength was 4/5 with shoulder flexion and abduction. The Veteran reported weakness, specifically lifting objects over his head, upon VA medical examination in March 2013. A penetrating muscle injury was not found. A non-penetrating muscle injury to muscle groups IV and V was found. Cardinal signs and symptoms of loss of power in muscle groups IV and V, weakness in muscle group VI, lowered threshold of fatigue in muscle group V, and fatigue-pain in muscle group IV were noted to be consistent. There was minimal scarring associated with the injuries. There was also no evidence of muscle atrophy, fascial defect, or impact on muscle substance or function. Motor strength was 4/5 with shoulder abduction and elbow flexion and extension on the right but 5/5 on the left. Sensation was intact in the right arm, and reflexes were normal. Electromyography showed active denervation in the right C7 paraspinal muscles indicative of cervical radiculopathy. The examiner determined that there is no involvement of muscle group VI attributable to the Veteran's service or service related injury. The weakness that the Veteran experienced was either secondary to right shoulder pain when extending the right arm, the C7 cervical radiculopathy, or both. It further was opined that there is no neurologic impairment of muscle groups IV and V. The impairment to muscle group IV was classified as moderately severe while the impairment to muscle group V was classified as moderate. Finally, it was opined that the Veteran's muscle injuries impact his ability to work in physical positions that require lifting or strenuous use of his right arm. Two scars, one on the right shoulder from the cyst removal and one on the right biceps from the in-service surgery, were found at a second March 2013 VA medical examination. Neither was painful, tender to palpation, or unstable. At the outset, the Board notes that the Veteran is a lay person because there is no indication that he has a medical background. He is competent in reporting his symptoms and their effects because such would have been and is within his personal experience. Layno v. Brown, 6. Vet. App. 465 (1994). Competent lay evidence may be discounted due to interest, self-interest, bias, inconsistency, inconsistency with other evidence, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Veteran is credible in the aforementioned regard because these factors do not reveal a substantial reason for doubt. His statements thus are accepted. The Board finds, based on the above, that an increased rating for the Veteran's right shoulder disability is not warranted for the period through December 5, 2003, for the period from December 6, 2003, to September 4, 2009, or for the period beginning September 5, 2009. The respective current ratings of 10 percent, 20 percent, and 30 percent during these periods therefore are continued. Diagnostic Code 5003, and thus Diagnostic Code 5010, cannot form the basis for rating a shoulder disability higher than 10 percent. The shoulder indeed constitutes one major joint. 38 C.F.R. § 4.45(f) (2012). With respect to Diagnostic Code 5201, the Veteran did not manifest limitation of motion in his right arm to at shoulder level (90 degrees) during the period through December 5, 2003. He indeed had no right shoulder limitation of motion whatsoever on the one occasion it was measured. His flexion and abduction were to a normal 180 degrees despite symptoms such as pain and weakness, in other words. Repetition was not performed, but it is difficult to imagine that it would have resulted in a loss of half the Veteran's range of motion if it had been performed. There indeed is no indication of anything suggesting there would have been such a drastic reduction. There further is no indication that there were any flare ups. A 20 percent rating, in sum, is not warranted. The Veteran did not manifest limitation of motion in his right arm to even midway between his side and shoulder level during the period from December 6, 2003, to September 4, 2009. His right shoulder flexion and abduction instead ranged from 90 degrees to a normal 180 degrees. Some of this motion, particularly that nearing and above shoulder level, was with symptoms such as pain, weakness, or other difficulty. However, motion that is painful does not in and of itself constitute limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). It follows that motion that is weak or difficult also does not constitute limited motion. Repetition on any given occasion was not performed. Yet the consistency of the low end of the Veteran's flexion and abduction, in that 90 degrees of each repeatedly was found, strongly suggests that it would have produced no change had it been performed. He had a pain flare up during physical therapy, but greater range of motion loss than normal was not mentioned. It was determined prior to this report that no medical opinion as to the amount of any additional range of motion loss during a flare up could be given. This presumably is because the Veteran was not experiencing a flare up at that time, since such was not noted. "Pure speculation or remote possibility" is insufficient when considering the degree of disability present. 38 C.F.R. § 3.102 (2012). In sum, a 30 percent rating is not warranted under Diagnostic Code 5201. The Veteran finally did not manifest limitation of motion in his right arm to 25 degrees from his side during the period beginning December 6, 2009. His right shoulder flexion rather ranged from 50 degrees to 115 degrees and his right shoulder abduction ranged from 50 degrees to 110 degrees. Discounting the measurements the day after he had cyst removal surgery, his right shoulder flexion and abduction ranges began at 70 degrees. Again, while some of this motion was with pain, weakness, swelling, or other irritation, motion that is painful, weak, with swelling, or with irritation does not in and of itself constitute limited motion. Repetition, when performed, yielded no change. The Veteran did not specify the amount of additional limitation of motion he experiences during flare ups. Like above, it twice has been determined that to opine as to this amount cannot be done or would be speculative. It appears that this is because the Veteran was not experiencing a flare up either time. "Pure speculation or remote possibility" is insufficient when considering the degree of disability present. 38 C.F.R. § 3.102 (2012). In any event, the fact that the Veteran's range of motion was the same initially and after repetition strongly suggests that the additional range of motion loss he has during flare ups is minimal as opposed to so drastic as to reduce flexion or abduction to 25 degrees. The maximum 40 percent rating under Diagnostic Code 5201, in sum, is not warranted. Turning to Diagnostic Code 5304, of note is that the Veteran filed the instant claim in April 2001. The rating for his right rotator cuff tear thereunder has been in effect only since July 5, 2006, as noted above. He has thereby been receiving compensable ratings for his shoulder disability under DCs 5201 as well as 5304. Emphasis is placed on noting that the question set forth in JMPR was not whether to assign separate ratings under DCs 5201 and 5304 but which code would provide for a higher rating for the shoulder disability. The presently assigned ratings are not disturbed herein. However, for the period prior to this date, a rating for the Veteran's right rotator cuff tear separate from that for his right shoulder disability cannot be awarded. Pyramiding, rating the same disability under different Diagnostic Codes, indeed is to be avoided. 38 C.F.R. § 4.14 (2012). Discussed above in rating the Veteran's right shoulder disability were many of the cardinal signs and symptoms of muscle disability. Diagnostic Code 5304 therefore can be considered with respect to the period through July 4, 2006, only insofar as to determine whether use of it allows for a rating higher than that assigned under Diagnostic Code 5010-5201 with respect to his right shoulder. A moderately severe muscle group IV injury is not found by the Board for the period through December 5, 2003. Further, a severe muscle group IV injury is not found for the period from December 6, 2003, to July 4, 2006. 20 percent, the next highest rating beyond the 10 percent rating currently assigned under Diagnostic Code 5010-5201, for this former period and 30 percent, the next highest rating beyond the 20 percent rating currently assigned under Diagnostic Code 5010-5201, for this latter period therefore cannot be awarded under Diagnostic Code 5304. The Veteran did not suffer a through and through or deep penetrating shoulder wound from one or more high or low velocity missiles during service. Indeed, his injury recently was classified as non-penetrating. There was no piercing by a projectile or introduction of foreign bodies, in other words. The Veteran did not undergo in-service debridement, and there was no fracture of any kind, prolonged infection, sloughing of soft parts, or intermuscular binding or scarring. He consistently manifested cardinal signs and symptoms of shoulder muscle disability since service, however. He namely had persistent weakness. Yet this was not associated with loss of deep fascia, normal firm muscle resistance, or soft flabby muscles in either of the aforementioned periods since no such findings in these regards were made. In the former aforementioned period, the Veteran's right shoulder strength was normal on the right. Comparison with the left shoulder, while not conducted, accordingly would not have yielded evidence of impairment. In the latter aforementioned period, no findings of abnormal muscle swelling and hardening in contraction, adhesion of a scar to one of the long bones or scapula, diminished muscle excitability, or adaptive contraction of an opposing group of muscles were made. The Veteran's strength in the right shoulder rotator cuff supraspinatus, infraspinatus, and subscapularis muscles was 3/5 on one occasion, which was characterized as severe impairment when compared to normal 5/5 strength in his left shoulder. Significant atrophy also was detected in the supraspinatus and infraspinatus muscles on this occasion. Yet these findings were not repeated. A lack of notation where notation would be expected may be considered. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). The Veteran received ongoing treatment subsequent to the occasion, but atrophy was not referenced. It follows that it either did not exist or was not that significant. Strength in the muscles of the Veteran's right arm, to include the supraspinatus, was found to range from 4/5 to full during this treatment. It therefore never was severely impaired, when compared to the left, again. The severely impaired strength and significant atrophy findings, in sum, represent an anomaly. For the period beginning July 5, 2006, the Veteran's 20 percent rating under Diagnostic Code 5304 is continued. The Board does not find a severe muscle group IV injury during this period, which is required for the next highest rating of 30 percent. The above discussion concerning the Veteran's service is reiterated. Indeed, as discussed above, there is some question as to whether the compensable ratings assigned under DCs 5201 and 5304 amounts to pyramiding. The Board nevertheless acknowledges that the Veteran has had cardinal signs and symptoms such as weakness, loss of power, and fatigue-pain consistently since service. Yet no findings of loss of deep fascia, normal muscle firm resistance, soft flabby muscles, abnormal muscle swelling and hardening in contraction, adhesion of a scar to one of the long bones or scapula, diminished muscle excitability, or adaptive contraction of an opposing group of muscles have been made. Some of these indeed specifically have not been found. Strength in the right shoulder, to include the rotator cuff supraspinatus, has ranged from 3/5 to a normal 5/5. Most results have been 4/5, which indicates some impairment but not severe impairment when compared to the normal 5/5 strength in the Veteran's left shoulder. Significant atrophy of the right shoulder, to include the supraspinatus and infraspinatus of the rotator cuff initially was found. However, it then lessened to mild and ultimately was not detected at all. It finally has been opined that the Veteran's muscle group IV injury is only moderately severe. The 10 percent rating for the Veteran's right bicep tendon tear under Diagnostic Code 5305, which as noted above was effective as of February 23, 2001, has been in effect for the entire period on appeal. It is continued because the Board does not find a moderately severe muscle group V injury, which is required for the next highest rating of 30 percent. Like above, the Veteran did not suffer a through and through or deep penetrating bicep wound from anything during service. His injury indeed has been classified as non-penetrating. The Veteran did not undergo in-service debridement, and there was no prolonged infection, sloughing of soft parts, or intermuscular binding or scarring. He did consistently manifest cardinal sign and symptoms of bicep muscle disability, however. Namely, he has had persistent weakness, loss of power, and a lowered threshold of fatigue. Yet this has not been associated with loss of deep fascia, muscle substance, or normal firm muscle resistance. Some of these indeed specifically have not been found. Strength in the Veteran's right bicep always has been either 4/5 or 5/5. There thus sometimes is impairment when compared to normal 5/5 strength in the left bicep, but also sometimes there is no impairment. It finally has been opined that the Veteran's muscle group IV injury is only moderate. Several other Diagnostic Codes concern the shoulder, shoulder girdle, and arm in addition to those set forth and discussed above. Diagnostic Code 5200 is for ankylosis of the scapulohumeral articulation. Diagnostic Code 5202 addresses other impairment of the humerus, and Diagnostic Code 5203 pertains to impairment of the clavicle and scapula. Diagnostic Codes 5301 and 5302 respectively pertain to injuries to muscle groups I and II, the extrinsic muscles of the shoulder girdle. Diagnostic Code 5303 is for to injury to muscle group III, the intrinsic muscle of the shoulder girdle to include the pectoralis major I (clavicular) and deltoid. Diagnostic Code 5305 finally relates to injury to muscle group VI, the extensor muscles of the elbow. These Diagnostic Codes are not applicable because there is no indication that the Veteran manifests the disabilities and injuries specified. There is an absence of ankylosis of the scapulohumeral articulation, impairment of the humerus to include a history of dislocation or subluxation of the scapulohumeral joint, and an AC joint condition. There is likewise no evidence of an injury to muscle group VI. This latter finding in particular is not surprising. The Board's focus on muscle group VI in its remands was erroneous, as the JMPR instead called for consideration of muscle group IV. The above confirms that this has been done. Regarding the Veteran's scars, three Diagnostic Codes addressed non-burn scars other than on the head, face, or neck at the time he filed his claim. 38 C.F.R. § 4.118 (2001). Diagnostic Code 7803 pertained to superficial scars that are poorly nourished with repeated ulceration. Diagnostic Code 7804 was for superficial scars that are objectively tender and painful. Each provided for a maximum 10 percent rating. Diagnostic Code 7805 addressed other scars. It provided that the rating be based on limitation of function of the affected body part. Revisions to the scar Diagnostic Codes became effective on August 30, 2002. 67 Fed. Reg. 49,590 (2002). Revised Diagnostic Code 7801 pertained to scars other than on the head, face, or neck that are deep or that cause limited motion. It established ratings from 10 to 40 percent depending on the area affected, with the lowest 10 percent rating for 6 square inches (39 square centimeters) or greater. Revised Diagnostic Code 7802 was for scars other than on the head, face, or neck that are superficial and do not cause limited motion. It established a maximum 10 percent rating if the area affected was 144 square inches (929 square centimeters) or greater. Revised Diagnostic Code 7803 concerned such scars that are superficial scars and unstable, while revised Diagnostic Code 7804 addressed such scars that are superficial and painful on examination. Both established a maximum rating of 10 percent. Diagnostic Code 7805 did not change. More revisions to the scar Diagnostic Codes became effective on October 23, 2008. 73 Fed. Reg. 54,708 (2008). They apply only to claims unlike the Veteran's received on or after this date or if the Veteran requests their consideration, however. Neither he nor his representative has requested such consideration. As such, they will not be set forth. The Board finds that a separate rating for a right shoulder or for a right bicep scar is not warranted. None of the Diagnostic Codes, whether before or after the 2002 revisions thereto, is applicable. There is no indication that either of the Veteran's scars is associated with underlying soft tissue damage. They therefore are superficial rather than deep. Note (2), Revised Diagnostic Code 7801-7803; Note (1), Revised Diagnostic Code 7804. Poor nourishment and ulceration, let alone repeated ulceration, have not been mentioned as it relates to them. Neither of the Veteran's scars has been found to cause limitation of motion or other function of his right knee. They have not been found to be unstable. Note (1), Revised Diagnostic Code 7803. They further objectively have not been found to be tender, or painful on examination or otherwise. Finally, neither of the Veteran's scars has been noted to be 144 square inches (929 square centimeters) or more. They indeed were not even 39 square centimeters. No Diagnostic Codes concerning neurologic impairment need be set forth. 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Codes 8510-8719 (2012). The Board finds that a separate rating for neurologic impairment clearly is not warranted. The Veteran right arm always has been found neurovascularly intact. At no point have any problems with sensation or reflexes in this arm been detected despite his pain and, if present at the time, muscle atrophy. In making each of the above determinations, consideration has been given to staged ratings and reasonable doubt. The preponderance of the evidence is against increased ratings for the right shoulder disability for the period on appeal through December 5, 2003, for the period from December 6, 2003, to September 4, 2009, and for the period beginning September 5, 2009, however. The same is true for a right rotator cuff tear for the period on appeal beginning July 5, 2006, and for a right bicep tendon tear during the entire period on appeal. Staged ratings other than those already in place for the right shoulder disability therefore are not warranted, while reasonable doubt is not for application. Reasonable doubt also is not for application regarding separate ratings for a right shoulder scar, for a right bicep scar, and for neurological impairment because the preponderance of the evidence is against such ratings. The alternative to assigning a rating schedularly is to assign a rating on an extraschedular basis. 38 C.F.R. § 3.321(b) (2012); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). There are three steps to be taken regarding extraschedular evaluations. A determination of whether the evidence presents such an exceptional disability picture that the applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's disability first must be made. If these criteria are inadequate, it second must be determined whether the Veteran exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral third must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for consideration of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). There is no indication that the Veteran's right shoulder disability, right rotator cuff tear, and right bicep tendon tear could not and cannot be contemplated adequately by the applicable schedular rating criteria discussed above. The Veteran's symptoms, which primarily have consisted of pain, tenderness, decreased range of motion, weakness, fatigue, and some atrophy specifically were accounted for by these criteria and associated statutes, regulations, and caselaw. The ratings assigned were based on these sources. Higher ratings are possible pursuant to them. Yet as explained above, the assigned ratings accurately described or describe the severity of the Veteran's disabilities. The effect his disabilities had and have on him is encompassed by these ratings, in other words. Because the applicable schedular rating criteria are adequate, the Board does not find any exceptional disability picture. Discussion of whether there are related factors such as marked interference with employment or frequent periods of hospitalization thus is unnecessary. Yet it is of note is that while the Veteran's disabilities concededly interfere with his employment, such interference does not arise to the level of marked. He has been able to continue working in spite of them. He further has more flexibility than usual in preventing some interference, such as missing work due to appointments, given that his job is owning and operating a tree farm. In sum, referral for consideration of the assignment of an extraschedular rating is not warranted. Finally, consideration has been given to whether a total disability evaluation based on individual unemployability (TDIU) has been raised by the Veteran or the record as a component to this matter. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board finds that a TDIU has not been raised. The Veteran indeed works notwithstanding the difficulties caused by his right shoulder, right rotator cuff tear, and right bicep tendon tear disabilities. ORDER An increased rating for a right shoulder disability for the period through December 5, 2003, for the period from December 6, 2003, to September 4, 2009, and for the period beginning September 5, 2009, is denied. An initial increased rating for a right rotator cuff tear is denied.. An initial increased rating for a right bicep tendon tear is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs