Citation Nr: 1323358 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-43 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating higher than 30 percent for right shoulder impingement syndrome. 2. Entitlement to service connection for a left shoulder disability, including as secondary to the right shoulder impingement syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to December 1986 and from August 1989 to August 1994. He appealed to the Board of Veterans' Appeals (Board/BVA) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In particular, in December 2005 the RO denied his claim of entitlement to service connection for a left shoulder disability. And in October 2008 the RO denied his claim for a rating higher than 30 percent for his right shoulder disability already determined to be service connected. In support of these claims, he testified at a videoconference hearing in March 2013 before the undersigned Veterans Law Judge (VLJ) of the Board, who had been designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this appeal. A transcript of the hearing testimony is in the claims file for consideration. A portion of the Veteran's records are in the electronic ("Virtual VA") system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. VA, incidentally, also is in the process of transitioning to a reportedly even better and newer system - the Veterans Benefits Management System (VBMS). So use of this even newer system will allow even more efficiency and flexibility in deciding claims. Also notably, the Veteran's claim of entitlement to service connection for a left shoulder disability, while first considered and denied in the December 2005 rating decision mentioned, also subsequently was denied in a February 2006 rating decision. The record clearly reflects that he filed a notice of disagreement (NOD) in March 2006 in response to those decisions denying this claim. However, no statement of the case (SOC) was provided in response to his NOD. Instead, the RO issued another rating decision in June 2006 that confirmed and continued the denial of this claim. The filing of an NOD places a claim in appellate status, and the failure to issue an SOC in such a circumstance renders a claim procedurally defective. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2012); see also Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran filed his claim again in September 2008 and perfected an appeal of the November 2008 rating decision which denied his claim. He was issued an SOC in October 2009. Therefore, a remand for an SOC is not necessary. However, because his initial appeal of this service-connection claim was procedurally defective, the Board will not apply the "new and material evidence" standard of 38 C.F.R. § 3.156(a) that is normally applicable to requests to reopen previously denied claims that supposedly were not timely appealed and, therefore, became final and binding based on the evidence then of record. See, in particular, subsections (b) and (c) of this VA regulation allowing for exceptions to this normal pleading requirement. See also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); and Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). This claim of entitlement to service connection for a left shoulder disability, however, requires further development before being finally decided on appeal, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, D.C. If service connection for a left shoulder disability is ultimately granted, the RO/AMC should be mindful of the procedural history of this claim when assigning an effective date. A still additional claim of entitlement to service connection for a nerve disability of the right upper extremity has been raised by the record, specifically, in a December 2008 statement the Veteran submitted. But this claim has not been specifically adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not presently have jurisdiction to consider this additional claim, so is referring it to the RO for appropriate development and consideration. In this decision the Board is only deciding whether the Veteran is entitled to a higher rating for his already service-connected right shoulder disability. FINDING OF FACT The Veteran's right shoulder impingement syndrome has not been manifested at any point during the pendency of this appeal by limitation of motion of this arm and shoulder to 25 or less degrees from his side, even when considering the extent of his associated pain. CONCLUSION OF LAW The criteria are not met for a rating higher than 30 percent for this right shoulder impingement syndrome. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). If the claim arose in the context of him trying to establish his underlying entitlement to service connection, this notice must address all five elements of the claim: 1) Veteran status, 2) existence of the claimed disability, 3) a connection or correlation between this disability and his military service, but also the "downstream" 4) disability rating and 5) effective date in the eventuality there is a favorable disposition of the underlying claim for service connection. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Conversely, if, as here, service connection was granted in years past and the claim instead concerns a request for an increase in an already established rating, not an initial rating, then consider that in Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) clarified VA's notice obligations in increased-rating claims. But the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) later vacated the lower Court's holding, indicating "generic" VCAA notice is all that is required, so VA does not have to notify a Veteran of alternative diagnostic codes (DCs) or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This notice, ideally, should be provided prior to initially adjudicating the claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). However, a delay in the provisional timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a statement of the case (SOC) or supplemental SOC (SSOC)) after the claimant has had an opportunity to submit additional evidence. This readjudication after providing the required notice preserves the intended purpose of the notice and gives the Veteran opportunity to participate effectively in the adjudication of his claim See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). Here, prior to the initial adjudication of the Veteran's claim, so in the preferred sequence, a letter dated in August 2008 was sent to him in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). He was notified of the evidence that was needed to substantiate his claim, of the information and evidence that VA would obtain, of the information and evidence he was expected to provide, and that VA would assist him in obtaining supporting evidence, but that it was his ultimate responsibility to provide VA with any evidence pertaining to his claim. He therefore has received all required notice concerning his claim. B. Duty to Assist VA's duty to assist under the VCAA includes helping the claimant obtain relevant records, such as, when appropriate, service treatment records (STRs) and other pertinent records, such as concerning his evaluation and treatment since service, whether from VA or private healthcare providers, as well as affording him an examination or obtaining a medical opinion when needed to make a decision on his claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). To this end, the Veteran's STRs, post-service VA treatment records, lay statements, and hearing transcript have been associated with the claims file. Correspondence from the Social Security Administration (SSA) indicates he is not receiving any disability benefits from this other Federal agency, and therefore no SSA records need obtaining. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (VA's duty to assist specifically includes requesting information from other Federal departments or agencies, so including SSA, if potentially pertinent to the claim before VA). Golz clarified however that VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim). The Veteran was also afforded VA examinations. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file for the history of this disability, document and consider the relevant medical facts and principles, and record the relevant findings needed for rating this disability. Although the VA examination reports include statements that impairment from flare-ups could not be measured without resorting to mere speculation, these reports also contain range-of-motion findings following repetitive use, which the Veteran identified as a precipitating factor of flare-ups. Therefore, the examinations adequately portray the overall level of impairment associated with his right shoulder disability. Notably, he testified during his March 2013 videoconference hearing before the Board that he believed his condition had worsened since his last VA examination. Generally, when such an assertion is made, the Veteran is entitled to another examination reassessing the severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). However, he testified that his condition had worsened since he was assigned a 30 percent rating, which effectively was in March 2002. He also stated that he thought his last VA examination for his right shoulder was that same year. When, in actuality, he since has undergone two VA compensation examinations during the pendency of his current claim, initially in September 2008 and more recently in April 2012. Therefore, further examination is not warranted because VA is not obligated to provide another examination merely because of the passage of time since an otherwise adequate examination. Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Consequently, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Veteran also, as mentioned, has testified at a videoconference hearing before the Board in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) chairing a hearing fulfill two duties to comply with this VA regulation. These two duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position. Here, during the hearing, the presiding VLJ elicited testimony to support the Veteran's claim and sought to identify any pertinent evidence not then currently of record that might tend to substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conducting of that hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated his actual knowledge of the elements necessary to substantiate his claim for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board resultantly may proceed to adjudicating this claim on the current record. Increased Rating A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation already has been established and increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all of the evidence of record, the more critical evidence is that generated during the appeal period - which is from the year immediately preceding the filing of this increased-rating claim. See 38 U.S.C.A. § 5110(b)(2) ; 38 C.F.R. § 3.400(o)(2). VA must assess the level of disability during this time frame and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged" rating. See Hart v. Mansfield, 21 Vet. App. 505 (2008). This will compensate the Veteran for this varying degree of severity of his disability. See also Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (first applying this practice in the initial-rating context). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Court has held that VA adjudicators must analyze the evidence of pain, weakened movement, premature or excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Indeed, when § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id., at 37. In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id., at 36. Where the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston, 10 Vet. App. at 84-85. The Veteran is currently assigned a 30 percent rating under Diagnostic Code 5201. His right shoulder is considered his major upper extremity as the evidence shows he is right handed. Under Diagnostic Code 5201, a 30 percent rating is assigned when motion of the major arm is limited to midway between the side and shoulder level. A maximum 40 percent rating is assigned when motion of the major arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The normal range of motion of the shoulder is 180 degrees of forward elevation (flexion) and abduction, and 90 degrees of external and internal rotation. 38 C.F.R. § 4.71, Plate I. The Board also has considered other Diagnostic Codes pertaining to disabilities of the shoulder. However, the evidence during the period on appeal does not reflect findings of ankylosis of the scapulohumeral articulation (Diagnostic Code 5200) or impairment of the clavicle or scapula (Diagnostic Code 5203). Therefore, these other DCs are not applicable to the Veteran's claim and will not be discussed. Ankylosis, incidentally, is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure"); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. There is no such impairment here since ankylosis essentially requires no motion whatsoever, thus, certainly more than just less than normal range of motion. B. Evidence and Analysis A June 2008 X-ray of the Veteran's right shoulder revealed mild arthritic disease with slight spurring of the acromioclavicular joint. There was also probable mild juxta-articular sclerosis of the glenohumeral joint. The surrounding soft tissues were unremarkable. He had a VA compensation examination in September 2008. He reported constant pain in his right shoulder which was worsened with certain movements, particularly sustained anterior elevation. He also had constant stiffness and intermittent muscle spasms. In his capacity as a security guard, he was required to be able to draw a weapon and shoot with one hand. He was barely able to complete that test due to his right shoulder pain. He treated his condition with medication. He used no assistive devices and completed all activities of daily living without assistance. On examination forward flexion was to 54 degrees and abduction to 56 degrees. Repetitive motion reduced flexion to 40 degrees and abduction to 50 degrees. There was objective evidence of pain at the end range of motion. He was unable to maintain the right shoulder in abduction at 90 degrees, letting it drop when passively moved there. Therefore, rotation could not be tested. Using the scratch test, he could reach to the level of the distal left clavicle with his right hand. In December 2008 statement, the Veteran reported experiencing weakness and spasms in his right shoulder and arm. VA records dated in May 2009 show findings of mild crepitus in the right shoulder. Records dated in August 2011 show he complained of being unable to raise his arms above his head due to pain. He had another VA compensation examination in April 2012. He stated that he was unable to lie down on his right side. He experienced spasms. Picking things up caused his shoulder to feel tired. He complained of stiffness and pain with elevation. He reported that the shoulder had been the same for years, though his range of motion had decreased. He complained of weakness in his grip. Pain was constant and reached up to 8.5/10 in severity. It was worsened by lifting, carrying weight, and pressure. He treated his condition with medication. His shoulder gave him problems with the periodic firearms qualification tests he had as a security guard. His shoulder would shake, making the gun unsteady. The examiner observed the Veteran would be unable to do overhead work. On examination, however, flexion and abduction were to 90 degrees, with the onset of pain at 90 degrees, so not until the terminal endpoint. Range of motion was unchanged following repetitive testing. Abduction and flexion strength was 5/5. There was pain with palpation, but no guarding of the shoulder. Ankylosis was not present. The examiner noted there was no finding of impingement on the last MRI. The Veteran's pain and difficulty with range of motion was due to a rotator cuff injury and failure to perform daily range-of-motion exercises. There was no connection between the rotator cuff injury and impingement syndrome. The examination report reflects a positive Hawkins impingement test. The Veteran testified during his March 2013 videoconference hearing before the Board that he could not lift things. He could not put his hand behind his back or lift over his head. He could not pick up his grandkids. He sometimes lost the strength in his shoulder. His wife normally helped him with things like putting on a jacket. He hugged his wife around the waist because he could not raise his arms to reach her neck. He had difficulty with driving. He could wash his face, but shaving required some contortion of his body. He could not cut his own hair. In his capacity as a security officer, he could not really draw his weapon or extend it straight out in front. His job also had new requirements for doing pushups and sit-ups, which he could not do. Based on this collective body of evidence, a rating higher than 30 percent is not warranted for the Veteran's right shoulder disability. As explained, a higher 40 percent rating requires motion of the major arm limited to 25 degrees from the side. The range-of-motion findings however do not reflect that level of restriction. At worst, flexion was to 40 degrees in September 2008 even when accounting for repetitive testing and painful motion. This is consistent with the existing 30 percent rating, which contemplates motion of the major arm limited to midway between the side and shoulder level. It exceeds the 25 degree or lesser motion requirement for the higher 40 percent rating. Also notably, the April 2012 VA compensation examiner clarified that the Veteran's rotator cuff injury - which he also testified concerning during his March 2013 videoconference hearing before the Board - has nothing to do with his service-connected impingement syndrome, so is totally unrelated to it. And the impingement also was not evident during the last MRI. Consequently, although the Veteran indicated in his substantive appeal to the Board (on VA Form 9) that he believed VA had decided his claim incorrectly...because his rotator cuff was not torn and first, but now is, and this makes his overall disability worse when also considering the other things that are going on with this shoulder, he cannot use the impairment attributable to the rotator cuff injury (tear) to increase the rating for his impingement syndrome since the VA compensation examiner has disassociated one from the other. See Mittleider v. West, 11 Vet. App. 181, 182 (1996). However, even were the Board to assume for the sake of argument that the symptoms and findings documented during the VA examination were attributable to the Veteran's service-connected condition, there still is not indication of sufficient consequent impairment to warrant assigning a higher rating, partly again because this has not resulted in sufficient limitation of motion of this shoulder. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as pain and stiffness in his right shoulder. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds he is credible in his reports of the symptoms he experiences, and the impact of his condition on his daily life. However, as with the medical evidence of record, his account of his symptoms and overall level of impairment describes a rating consistent with the currently assigned 30 percent. That is, the functional limitations and impairment with daily activities described by him do not reflect motion of the major arm limited to just 25 degrees from his side and do not reflect an overall disability picture consistent with a higher 40 percent rating. C. Extra-schedular Consideration In evaluating the Veteran's claim for a higher rating for his right shoulder disability, the Board also has considered whether he is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. See Barringer v. Peake, 22 Vet. App. 242 (2008). As part of the evaluation for an extra-schedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which as already alluded to held that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition versus a non-service-connected condition. Essentially, if there is not competent and credible evidence make this distinction or differentiation, then VA must resolve this doubt in the Veteran's favor according to 38 C.F.R. §§ 3.102 and 4.3 and, for all intents and purposes, presume the symptoms in question are attributable to the service-connected disability. So, here, the Board has attributed all potentially service-connected symptoms to the Veteran's service-connected condition in considering whether he is entitled to an extra-schedular rating. According to the regulation, an extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). According to Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's right shoulder condition with the established criteria found in the Rating Schedule for this disability shows the rating criteria reasonably describe his disability level and symptomatology, for the reasons and bases already discussed. That is, his limited range of motion is specifically contemplated by the Rating Schedule, as is his associated pain which allows for assigning of a higher rating when this results in greater limitations on the range of motion. He additionally has made reference to the impairment in his job as a security officer, such as when required to complete the physical fitness test (insofar as having to do push-ups or sit-ups) and when required to remove his gun from its holster, explaining that he cannot hold the gun steady, such as for targeting. But the schedular rating accepts there will be an impairment in his earning capacity as a consequence, indeed, even that he will have to miss time from work on account of this disability. See 38 C.F.R. § 38 C .F.R. § 4.1 (indicating that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). As well, records do not show that he has ever been hospitalized on account of this service-connected disability, certainly not on what could be considered a frequent basis. Instead, most, if not all, of the evaluation and treatment he has received and required for this disability has been on an outpatient basis, not as an inpatient. The schedular criteria, then, more than reasonably describe his disability level and symptomatology. See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER The claim of entitlement to a rating higher than 30 percent for the right shoulder impingement syndrome is denied. REMAND The Veteran contends that his left shoulder disability, like his right shoulder disability, is the result of his military service. TRs dated in January 1993 show he complained of a left shoulder injury. He was diagnosed with a strain of the left shoulder and trapezius muscle. He mentioned that injury when since filing his substantive appeal to the Board (on VA Form 9), although his May 1994 military separation examination was grossly normal. He says that, because the injury in service was treated as just as strain ("sprain"), no X-ray or MRI was ever taken of this shoulder, and he never returned to the doctor because he was told that it was just a sprain/strain. He added that he later after service went to the VA Hospital and the Greenville Medical Clinic, but that just as in service no one thought that anything was wrong with this shoulder. He said he took a Cortisone shot to try and stop the pain, but it did not, and that it was only later with the benefit of surgery that the extent of his impairment was found. VA treatment records dated in January 2005 show he reported injuring his left shoulder in July 2004 while playing basketball. On his VA Form 9 he said he never told any doctor he injured his shoulder playing basketball, instead that he was hit in the eye with a basketball. In any event he underwent surgery for left shoulder impingement with partial rotator cuff repair in August 2005. An opinion regarding the etiology of his left shoulder condition has not been obtained. According to McLendon v. Nicholson, 20 Vet. App. 79 (2006), in service-connection claims, VA must provide a VA medical examination for a medical nexus opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or a disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The Federal Circuit Court held in Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010), that medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service. See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and medical nexus opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicate an association between the disability and service or a service-connected disability.) During the pendency of this appeal, the Veteran also asserted that his left shoulder condition may be secondary to his service-connected right shoulder disability, meaning caused or aggravated by this disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Consequently, medical comment is needed to further explore these possibilities. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Schedule the Veteran for a VA examination. The examiner must review the claims file and provide an opinion as to the likelihood (very likely, as likely as not, or unlikely) that any current left shoulder disability is attributable to the Veteran's military service - either as 1) directly incurred in service if the result of his alleged injury in service, 2) presumptively incurred in service if involving arthritis and manifested to the required compensable degree of at least 10-percent disabling within the initial year after the conclusion of his service, or 3) is secondarily related to his service, in particular, caused or aggravated by his service-connected right shoulder disability. Although the examiner must conduct a review of the claims folder, the examiner's attention is called to the following evidence of record: (A) The Veteran was diagnosed in service with a left shoulder and trapezius muscle strain in January 1993. (B) A May 1994 separation examination showed normal findings. (C) VA treatment records dated in January 2005 show the Veteran reported injuring his left shoulder in July 2004 while playing basketball. He disputes the notion that he ever said that or that is how the injury occurred. In any event he later underwent surgery for left shoulder impingement with partial rotator cuff repair in August 2005. The examiner therefore must provide a fully explained opinion as to whether any current left shoulder disorder is etiologically related to the Veteran's service, as mentioned considering all potential bases of entitlement (direct, presumptive, and secondary). 2. Ensure the examiner, whoever designated, provides complete responses to the questions posed. If he/she does not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 3. Then readjudicate this claim of entitlement to service connection for a left shoulder disorder in light of this and all other additional evidence. Consider all potential bases of entitlement (direct, presumptive, and secondary). If this claim continues to be denied, send the Veteran and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs