Citation Nr: 1324374 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 08-22 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a compensable initial disability rating for residuals of a right proximal humerus fracture (right shoulder disability) prior to May 23, 2005. 2. Entitlement to an initial disability rating in excess of 20 percent for a right shoulder disability from May 23, 2005. 3. Entitlement to an initial disability rating in excess of 10 percent for left shoulder osteopenia (left shoulder disability). 4. Entitlement to an initial disability rating in excess of 10 percent for hypothyroidism. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to July 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Nashville, Tennessee that granted service connection for a right shoulder disability, a left shoulder disability, and hypothyroidism. In the December 2006 rating decision and the Board's May 2012 Remand, the Veteran's right shoulder disability was characterized as residuals of a right proximal humerus fracture with hypertrophic malunion. The evaluation of the Veteran's right shoulder disability, however, turns largely on whether it was productive of malunion versus nonunion because nonunion is rated differently than malunion. As will be explained in greater detail below, the diagnostic medical evidence of record shows that the Veteran had initially incurred a right proximal humerus fracture with nonunion, which subsequently resolved. Thus, the Board has recharacterized the issue on appeal in more basic terms as from "entitlement to a higher initial rating for residuals of a right proximal humerus fracture with hypertrophic malunion" to entitlement to a higher initial rating for residuals of a right proximal humerus fracture (hereinafter "right shoulder disability"). In March 2012, after prior scheduled Board hearings were postponed, the Veteran ultimately canceled his request for a Board hearing. Therefore, the Veteran's request for a Board hearing is considered withdrawn, and these matters are ready for further review. In May 2012, the Board remanded these matters for further development. Such development has been completed and associated with the claims file, and these matters are returned to the Board for further review. The issue of entitlement to service connection for a left clavicular fracture as secondary to service-connected Hodgkin's disease has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See, e.g., Statement, June 2012. Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to an initial disability rating in excess of 10 percent for the Veteran's left shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to June 9, 2012, the Veteran's right shoulder disability was manifested by range of flexion limited to 90 degrees, abduction to 70 degrees, and nonunion of a proximal humerus fracture, with findings during this period of a rotator cuff tear; there was no objective evidence of loss of head of the humerus (flail joint) or ankylosis. The Veteran is shown to be right hand dominant. 2. For the period beginning on June 9, 2012, the Veteran's right shoulder disability is manifested by range of flexion limited to 100 degrees and abduction to 90 degrees, with findings of rotator cuff tear atrophy and retraction during this period; there is no objective evidence of loss of head of the humerus, nonunion, fibrous union, recurrent dislocation, malunion, or ankylosis. 3. The Veteran's hypothyroidism is manifested by continuous medication for control, but not by fatigue or mental sluggishness. CONCLUSIONS OF LAW 1. For the period prior to June 9, 2012, the criteria for an initial rating of 60 percent disabling for the Veteran's right shoulder disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5202 (2012). 2. For the period beginning on June 9, 2012, the criteria for an initial rating in excess of 20 percent disabling for the Veteran's right shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5202 (2012). 3. The criteria for an initial rating in excess of 10 percent for the Veteran's service-connected hypothyroidism have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.119, DC 7903 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claims for a higher initial ratings, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board notes that where service connection has been granted and an initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to 38 U.S.C.A. § 5103(a) notice is nonprejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Nevertheless, the Board finds that notice letters dated in January 2008 and May 2008 fully satisfied the notice requirements of the VCAA with respect to the Veteran's claims for higher initial ratings. The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, and private treatment records are all in the claims file. The Veteran has not referenced any outstanding records for VA to obtain relating to his claim. In that regard, the Board notes that pursuant to the Board's May 2012 remand directive, all of the Veteran's VA treatment records dated since December 2010 have been associated with the claims file. Also, the RO asked the Veteran by way of a June 2012 notice letter to identify any outstanding treatment records relating to his claim (in response to which no outstanding records were identified for VA to obtain). Therefore, the Board finds that there has been substantial compliance with the Board's remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). In May 2012, the Board remanded the Veteran's claims so that, among other things, the Veteran's records from the Social Security Administration (SSA) could be associated with the claims file. Pursuant to the Board's remand directive, such records were associated with the claims file around June 2012, and the Veteran's claim was readjudicated in January 2013 by way of a Supplemental Statement of the Case (SSOC). Based thereon, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). Prior to the Board's May 2012 remand, the Veteran was provided with VA examinations in October 2006 (thyroid and shoulders), April 2009 (thyroid), May 2009 (shoulders), February 2010 (right shoulder), and March 2010 (general). An April 2010 VA medical opinion was also obtained regarding the effect of the Veteran's disabilities on his occupational functioning (related to a TDIU claim). In May 2012, the Board remanded the Veteran's claims so that, among other things, the Veteran could be provided with a new VA examination relating to his right shoulder disability in order to address whether the Veteran's disability met certain rating criteria and so that new range of motion testing could be performed using a goniometer. Pursuant to the Board's May 2012 remand directive, the Veteran was provided with a new VA examination in June 2012 relating to his right shoulder disability, which addresses all of the questions posed by the Board and which reflects that range of motion testing was performed using a goniometer. Therefore, the Board finds that there has been substantial compliance with the Board's remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that there is no evidence indicating that there has been a material change in the severity of the Veteran's right shoulder or hypothyroidism since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the above noted VA examination reports and VA medical opinion are thorough, complete, and adequate upon which to base a decision with regard to the Veteran's claims. The VA examination reports and VA medical opinion reflect that the examiners personally reviewed the claims file, examined the Veteran, and provided sufficient detail to rate the Veteran under the applicable diagnostic criteria. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537. II. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b) (West 2002). Where, as in the instant case, an appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). A. Right Shoulder The Veteran's right shoulder disability is assigned a noncompensable disability rating under Diagnostic Code 5010-5202 effective September 22, 2004, and 20 percent rating effective May 23, 2005. See 38 C.F.R. § 4.71a (2012). The Veteran seeks higher initial ratings. Traumatic arthritis, substantiated by x-rays findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5003, provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a (2012). When, however, limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is generally for application. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Diagnostic Code 5201, Arm, limitation of motion of, provides a 20 percent rating for limitation of motion to the shoulder level, a 30 percent rating for limitation of motion midway between the side and shoulder level (20 percent minor), and a 40 percent rating for limitation to 25 degrees from the side (30 percent minor). 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). Diagnostic Code 5202, Humerus, other impairment of, provides a 20 percent rating for malunion of the humerus with moderate deformity, and a 30 percent rating for malunion of the humerus with severe deformity (20 percent minor); a 20 percent rating for recurrent dislocations of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level, and a 30 percent for frequent episodes and guarding of all arm movements (20 percent minor); a 50 percent rating for fibrous union of the humerus (40 percent minor); a 60 percent rating for nonunion (false flail joint) of the humerus (50 percent minor); and an 80 percent rating for loss of head (flail shoulder) of the humerus (70 percent minor). 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2012). Diagnostic Code 5203, Clavicle or Scapula, impairment of, provides a 10 percent rating for malunion, a 10 percent rating for nonunion without loose movement, a 20 percent rating for nonunion with loose movement, and a 20 percent rating for dislocation. Or, impairment of the clavicle or scapula may be rated based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2012). In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider reports of forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I (2012). A May 2005 VA treatment record reflects that the Veteran presented for follow-up with a resident surgeon for a right cervical neck fracture in December 2003. The Veteran reported right shoulder pain. Range of motion testing revealed flexion to 110 degrees and abduction to 90 degrees. Some weakness with stress testing of his rotator cuff was noted, but no significant pain, and no gross instability at his proximal humerus site was noted. A CT scan was positive for osteoporosis of the proximal humerus and questionable for nonunion of the proximal humerus fracture. An MRI was more than likely consistent with a nonunion of the humerus fracture as well as a rotator cuff tear with atrophy and retraction. A diagnosis of right humerus nonunion, with large rotator cuff tear, with retraction, was recorded. The physician opined that the Veteran's symptoms were "minimal," and although a large reconstruction procedure was discussed, the Veteran was adamant in saying that he was functioning at too high a level to undergo surgery. No mention of any left shoulder complaints was noted in the record. A February 2006 VA orthopedic treatment record reflects that the Veteran was following-up for a right proximal humerus hypertrophic nonunion. It was noted that he was having minimal, if any, pain, and that he had no loss of function in his right upper extremity, and that he would be discharged from the clinic as he was having no issues. No mention of any left shoulder complaints was noted. An October 2006 VA examination report reflects the Veteran was noted as right hand dominant, and that he worked as a quad director at an ammunition plant. He reported significant pain at night and with weather changes in his right shoulder, no instability or giving way, and flare-ups with lifting heavy objects or extreme ranges of motion, but no additional functional impairment during flare-ups. It was noted that his activities of daily living and occupational functioning were affected as noted above, and that he experiences difficulty lifting objects greater than 10-15 pounds. No physician ordered bed rest was noted in the past 12 months. Physical examination revealed tenderness to palpation over the proximal humerus, but no underlying edema. Range of motion testing revealed flexion to 140 degrees, abduction to 100 degrees, external rotation of zero to 50 degrees, and internal rotation of zero to 30 degrees. Painful motion was noted. Good rotator cuff strength was noted. No evidence of deformity, false motion, or ankylosis was noted. Range of motion and function were noted as not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive motion or flare-ups. X-rays revealed a fibrous hypertrophic nonunion of a surgical neck proximal humerus fracture. A diagnosis of right proximal humerus fracture with hypertrophic nonunion secondary to a history of radiation induced osteoporosis was recorded. The examiner noted that with regard to the DeLuca factors, while there was pain and limitation of motion, it was not feasible to express any additional limitation of motion because it could not be determined with any degree of medical certainty. A May 2009 VA examination report reflects that the Veteran complained of pain with repetitive motion and lifting or twisting in his right shoulder, and weakness and trouble lifting his arm. He reported that his symptoms are activity dependent and denied any flare-ups. It was noted that he was able to do his activities of daily living except that it was difficult to lift his right shoulder, and that he was currently unemployed and that it did not affect his work. The examiner noted that the February 2006 VA treatment record reflecting that he had no loss of function in his right upper extremity, whereas the May 2005 record reflected that flexion was limited to 110 degrees and abduction to 90 degrees, with weakness when testing his rotator cuff. The examiner also acknowledged that an MRI was consistent with nonunion along with a large rotator cuff with atrophy and retraction, and that managing the Veteran's condition nonoperatively had been decided due to his good functional abilities and the extensive nature of the required surgery. Range of motion testing (active) revealed flexion to 90 degrees, abduction to 70 degrees, external rotation of zero to 30 degrees, and internal rotation of zero to 45 degrees. Passive range of motion was noted as including flexion to 170 degrees and abduction to 170 degrees. Painful motion was noted. Strength was noted as 4/5, and tenderness to palpation was noted. X-rays showed residuals of an extrarticular humerus fracture, and that the joint space was well maintained with no degenerative changes. A diagnosis of nonunion right proximal humerus fracture with rotator cuff tear retraction and atrophy was recorded. To address the DeLuca provisions, the examiner noted that while it is conceivable that pain could further limit function, particularly with heavy lifting or movement with his shoulders, it was not feasible to attempt to express any such additional limitations in terms of additional limitation of motion because it could not be determined with any degree of medical certainty. A February 2010 VA examination report reflects that the Veteran reported experiencing right shoulder pain depending on his activities, that his activities of daily living were affected regarding reaching overhead for objects and lifting objects. It was noted that he was currently unemployed, and that his prior occupation was in quality assurance, and that he did feel that his right shoulder disability would affect his occupation were he to do anything requiring overhead activity or lifting with that arm. Range of motion testing revealed flexion to 90 degrees, abduction to 90 degrees, external rotation of zero to 60 degrees, and external rotation of zero to 30 degrees. It was noted that repetitive motion did not produce increased pain or decreased range of motion. Weakness with rotator cuff testing, pain with extremes of all ranges of motion, and tenderness were noted. No gross instability was noted. A diagnosis of residuals of right proximal humerus fracture, moderate, was recorded. To address the DeLuca provisions, the examiner noted that there was sprain with testing that day, and while the Veteran could have additional pain that could further limit function, particularly with repetitive use, it was not feasible to attempt to express any such additional limitations in terms of additional limitation of motion because it could not be determined with any degree of medical certainty. The Board acknowledges that in virtually identical April 2010 statements from the Veteran and his friend, F.W. (which friend apparently attended the examination), they assert that the February 2010 VA examiner told them that he was a licensed physician but not Medical Board certified because he was "too young," that he did not review the claims file in its entirety prior to the examination (but said that he would complete his review before he wrote his report), and that the examiner, when questioned, answered that he could better evaluate ranges of motion without the use of a goniometer. The Board finds, however, that even if the VA examiner was not Medical Board certified at that time, that does not diminish in any way the fact that he was a licensed orthopedic surgeon, with clearly the requisite education, training, and experience to perform the VA examination and offer a competent medical opinion. Also, the Board finds that the fact that the February 2010 VA examiner had not reviewed the claims file in its entirety prior to the VA examination is harmless because the examiner noted in his examination report that he reviewed the claims file (before he wrote his reports, as he told the Veteran and his friend that he planned to do). Finally, regarding the fact that the February 2010 VA examiner reported that he did not use a goniometer, as noted in the VCAA section above, the Board took into serious regard this point made by the Veteran and his friend and ultimately remanded the Veteran's right shoulder rating claim in May 2012 so that he could be provided with a new VA examination that included range of motion testing using a goniometer, which was provided in June 2012. For the period prior to the June 2012 VA examination report, however, as explained below, the Board has granted herein a 60 percent disability rating, which is higher than any rating provided under Diagnostic Code 5201, arm, limitation of motion, which provides only a 30 percent maximum rating for limitation of motion to 25 degrees to the side. Therefore, in light of the above, the Board finds that to the extent that the February 2010 range of motion figures lack probative value because they were not taken using a goniometer, such error is harmless. The Board adds that a remand at this time could not change the fact that the February 2010 VA examination range of motion testing may have been performed without using a goniometer. An April 2010 VA medical opinion was obtained to address the effect of the Veteran's disabilities, including his right shoulder disability, on his occupational functioning because he had filed a separate claim for total disability based on individual unemployability (TDIU) that was ultimately granted by way of a March 2011 rating decision. The April 2010 VA examiner opined that with regard to the Veteran's right shoulder disability, it was healed according to a recent March 2010 x-ray report and, therefore, should not hinder the Veteran's physical or sedentary employability. As noted in the VCAA section above, in May 2012, the Board remanded the Veteran's claims so that, among other things, the Veteran could be provided with a new VA examination relating to his right shoulder disability in order to address whether the disability met certain rating criteria and so that new range of motion testing could be performed using a goniometer. The Veteran was provided with a new VA examination relating to his right shoulder disability in June 2012. The June 2012 VA examination report reflects that the Veteran reported experiencing daily flare-ups involving pain with exertion or repetitive motion. Range of motion testing revealed flexion to 100 degrees, and abduction to 90 degrees. Objective evidence of painful motion was noted. The examiner noted that the Veteran had functional loss due to less movement than normal, weakened movement, excess fatigability, and painful motion, but that there was no additional limitation of motion beyond that noted above with repetitive testing. Tenderness or pain on palpation was noted, muscle strength was 4/5, and no ankylosis was found. The examiner noted that there was no history of recurrent subluxation. The examiner noted that a May 2005 MRI reflected degenerative arthritis. With regard to occupational functioning, the examiner noted that the Veteran would be unable to perform any overhead activity, and would be very limited with regard to any lifting with the right shoulder or a job requiring normal range of motion of the right shoulder. The examiner noted that the Veteran's humerus fracture had gone on to achieve a bony union and healed in acceptable alignment, there was no malunion, nonunion, or residual deformity, the humeral head was intact without signs of AVN or flail shoulder, there is no history of recurrent dislocation or any physical examination findings that would support recurrent instability. A September 2012 VA treatment record reflects that right shoulder elevation was limited to 90 degrees. Prior to June 9, 2012, as shown above, the VA treatment records and VA examination reports, including x-rays and MRIs, uniformly reflect that the Veteran had a right proximal humerus fraction with nonunion. The Veteran's right shoulder disability is rated under Diagnostic Code 5202, which provides a 60 percent rating for nonunion of the humerus (major, as the Veteran is right hand dominant). The Board acknowledges that the RO has categorized the Veteran's disability previously as a malunion rather than a nonunion, and in that regard, that the May 2005 VA treatment record reflects that the Veteran's symptoms were "minimal," and that the February 2006 VA orthopedic treatment record reflects that he had no loss of function. The Board may not, however, arrive at its own medical conclusions in this case as to whether the Veteran's right shoulder disability is more akin to a malunion rather than a nonunion when all of the medical evidence reflects it was a nonunion during this period. Because the medical evidence of record prior to June 9, 2012 overwhelmingly reflects that the Veteran's right shoulder disability involved a fracture of the right humerus with nonunion, the Board finds that the Veteran's disability picture for this period nevertheless meets the criteria for a higher, 60 percent rating under Diagnostic Code 5202 for nonunion of the humerus. The Board has considered whether the Veteran would be entitled to a rating in excess of 60 percent for the period prior to June 9, 2012. In that regard, the Board notes that there is no evidence of loss of head of the humerus (flail shoulder) and, therefore, a higher 80 percent rating under Diagnostic Code 5202 is not warranted. Also, the Board notes that the maximum ratings under all of the other relevant Diagnostic Codes 5200, 5201, and 5010 are less than the 60 percent rating assigned herein, and assigning separate ratings under these codes would constitute impermissible pyramiding. See 38 C.F.R. § 4.114 (2012). For the period beginning on June 9, 2012 (the date of the June 2012 VA examination), the Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2Vet. App. 625, 629 (1992). The Board notes that the RO assigned a 20 percent rating for the Veteran's right shoulder disability under Diagnostic Code 5202, effective May 23, 2005, for malunion of the humerus with a moderate deformity of the humeral head. It was also noted in the December 2006 rating decision that a 20 percent rating could be assigned in the alternate under Diagnostic Code 5201 for limitation of motion of the arm to shoulder level based on findings of abduction limited to 90 degrees. Because, however, the June 2012 VA examination report shows that the Veteran's right proximal humerus fracture healed without any residual humeral deformity, including no loss of head, nonunion, fibrous nonunion, or malunion, the Board has considered whether rating under another diagnostic code would be more appropriate for this period. In that regard, the Board notes that no ankylosis is shown, such that a rating under Diagnostic Code 5200 would not be appropriate. Also, no malunion, nonunion, or dislocation of the clavicle or scapula is shown, such that a rating under Diagnostic Code 5203 would not be appropriate. The Veteran's right shoulder disability is manifested by pain and limitation of motion. Therefore, the Board finds that it would be more appropriate to rate the Veteran's right shoulder disability under Diagnostic Code 5201 for limitation of motion. The current 20 percent rating represents limitation of motion to the shoulder level (which is limitation to 90 degrees). A higher, 30 percent rating is for limitation of motion midway between the side and shoulder level (which is limitation to 45 degrees). In this case, the Veteran's motion of his right arm is not shown to be limited to midway between the side and shoulder level. On VA examination on June 9, 2012, flexion was to 100 degrees, and abduction was to 90 degrees. These degrees are at or above shoulder level. See 38 C.F.R. § 4.71a, Plate I. Thus, the level of impairment necessary for a rating in excess of 20 percent disabling under Diagnostic Code 5201 is not present for the period beginning on June 9, 2012. With regard to assigning a higher disability ratings for the Veteran's right shoulder disability according to 38 C.F.R. § 4.40 and 4.45 for the entire period on appeal, the Board acknowledges the Veteran's reported complaints of pain and painful motion. The Board finds, however, that painful motion is already contemplated by the currently assigned 60 percent and 20 percent ratings for his right shoulder. See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that in rating limitation of motion outside of the context of Diagnostic Code 5003, painful motion alone may not be deemed limitation of motion). Therefore, the Board concludes that the greater weight of evidence is against assigning higher evaluations as contemplated by the holding in Deluca. The Board has considered whether referral for extraschedular ratings is appropriate. "The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. . . The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. . ." Thun v. Peake, 22 Vet App 111, 115 (2008) (citing Fisher v. Principi, 4 Vet. App. 57, 60 (1993), and Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). "Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. . .[I]f the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun at 115. "[I]n the second step of the inquiry, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' 38 C.F.R. § 3.321(b)(1) (related factors include 'marked interference with employment' and 'frequent periods of hospitalization')." Thun at 115-116. "When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating." Thun at 116. With respect to the first prong of Thun, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's right shoulder is inadequate. A comparison between the level of severity and symptomatology of the Veteran's right shoulder disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As such, an extraschedular rating is not appropriate. In sum, for the Veteran's right shoulder disability, the evidence supports granting a 60 percent initial disability rating for the period prior to June 9, 2012, but the preponderance of the evidence is against a disability rating in excess of 20 percent thereafter. As the preponderance of the evidence is against a rating in excess of 20 percent for the latter period, the benefit of the doubt rule is not for application. Finally, the Board recognizes that this decision represents the assignment of a 60 percent disability rating prior to June 9, 2012, with a latter assignment of a reduced rating to 20 percent thereafter. Consequently, whether this decision is consistent with 38 CFR 3.344 (2012) as it relates to the stabilization of disability ratings must be addressed. In that this decision represents a staged rating of an initial disability evaluation, 38 CFR 3.344 is not for application. B. Hypothyroidism The Veteran's hypothyroidism is currently assigned a 10 percent disability rating under Diagnostic Code 7903, effective March 9, 2005. See 38 C.F.R. § 4.119 (2012). The Veteran seeks a higher initial rating. The Veteran's hypothyroidism is currently rated under Diagnostic Code 7903, which provides a 10 percent evaluation when the hypothyroidism is manifested by fatigability, or when continuous medication is required for control; a 30 percent evaluation is warranted when manifested by fatigability, constipation, and mental sluggishness; a 60 percent evaluation is warranted for muscular weakness, mental disturbance, and weight gain; a 100 percent is warranted cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute) and sleepiness. 38 C.F.R. § 4.119 (2012). By way of background, various private and VA treatment records reflect that during the period on appeal, the Veteran has been followed for diagnosed hypothyroidism and prescribed Synthroid. See, e.g., Private Treatment Records, December 2004 (Dr. D.); VA Treatment Records, July 2005. The Board notes that the Veteran's separate claim for service connection for depression as secondary to his service-connected hypothyroidism was separately denied by way of an unappealed December 2008 rating decision as being situational. An October 2006 VA examination report reflects the Veteran's history of diagnosed hypothyroidism and that he was taking Synthroid. The Veteran reported experiencing fatigue and decreased strength and energy level, waking up in the morning feeling tired, and cold and heat intolerance. He reported losing 10 pounds in the last 1.5 years. He reported that he was taking Metamucil every day for constipation, and that if he misses a day, he will experience constipation and hemorrhoid flare-up. He also reported an intermittent rash on his back. Examination revealed that his weight was 278 pounds and his skin showed no rash or lesions. His TSH level was 2.439 (0.35 - 6.0). A diagnosis of hypothyroidism on supplementation with Synthroid was recorded. A July 2008 private treatment record from Dr. D. reflects that the Veteran was euthyroid. Dr. D. noted that "[he] has been battling with the VA over mental sluggishness, which he thought was due to his hypothyroidism, 12-pt review of systems is actually negative. I discussed with him the fact that he is euthyroid now and that any mental sluggishness was not attributable to his thyroid." An April 2009 VA examination report reflects the Veteran's history of hypothyroidism, and it was noted that it was in remission with Synthroid. Examination revealed that the Veteran's skin was dry, and there were no signs of slow speech, depression, apathy, psychosis, or dementia. Muscle strength was noted as 1 or 2 in all four extremities. No other signs of thyroid disease were specifically noted. A diagnosis of hypothyroidism, in remission, was recorded. It was noted to have a mild to moderate effect on his activities of daily living, and that he was unemployed due to a downturn in the economy. A March 2010 general VA examination notes that the Veteran had hypothyroidism, and that he reported experiencing heat and cold intolerance and constipation, but no memory problems. A September 2010 VA treatment record reflects that the Veteran reported no symptoms of weight loss, weight gain, constipation, depression, trouble sleeping, or memory loss. March, August, and October 2011 VA treatment records reflect that the Veteran denied constipation. Subsequent VA treatment records, however, reflect that the Veteran reported constipation. See, e.g., November 2011, April 2012, and October 2012. In light of the above, the Board finds that a preponderance of the evidence is against granting an initial rating in excess of the currently assigned 10 percent rating under Diagnostic Code 7903, which contemplates fatigability or continuous medication. A higher, 30 percent rating requires fatigability, constipation, and mental sluggishness. As shown above, fatigability and mental sluggishness are not shown in the above medical evidence of record (at least not related to his hypothyroidism). In the words of Dr. D. in July 2008, "he is euthyroid now and that any mental sluggishness was not attributable to his thyroid." The April 2009 VA examiner opined that the Veteran's hypothyroidism was in remission with Synthroid. While the Board does acknowledge the Veteran's statements regarding taking Metamucil to treat constipation, and the fact that constipation is reflected in certain more recent treatment records, the Board finds this is not so significant as to bring the Veteran's overall disability closer to the next higher rating. With regard to the Veteran's history of diagnosed depression, the Board notes again that service connection for depression was separately denied by way of an unappealed December 2008 rating decision. While the Board does acknowledge some VA treatment records reflecting cold intolerance, again, the Board finds that this is not sufficient to bring the Veteran's disability picture more near to the next higher disability rating. The Board also notes that there is no evidence of significant weight gain or muscle weakness relating to the Veteran's hypothyroidism, or cardiovascular involvement. The Board emphasizes that the medical evidence of record essentially reflects that the Veteran's hypothyroidism is asymptomatic (i.e., "euthyroid" or "in remission"). The Board notes that it has considered whether the Veteran may be entitled to a higher rating under any other diagnostic code, but ultimately finds that there is no other applicable rating criteria in this case. The Board has considered whether extraschedular consideration is warranted. 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 Veteran's hypothyroidism is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Board has also considered whether staged ratings are warranted regarding the Veteran's hypothyroidism. However, based on the facts found, the current 10 percent rating is appropriate for the entire period. See Fenderson v. West, supra. Therefore, in light of the aforementioned evidence, the Board finds that the preponderance of the evidence is against awarding a rating in excess of 10 percent for hypothyroidism. ORDER Entitlement to an initial disability rating of 60 percent disabling for the Veteran's right shoulder disability is granted for the period prior to June 9, 2012. Entitlement to an initial disability rating in excess of 20 percent for the Veteran's right shoulder disability is denied from June 9, 2012. Entitlement to an initial disability rating in excess of 10 percent for hypothyroidism is denied. REMAND The Veteran's left shoulder disability is assigned a 10 percent disability rating under Diagnostic Code 5201, effective October 10, 2006. See 38 C.F.R. § 4.71a (2012). The Veteran seeks a higher initial rating. The Veteran was provided with VA examinations in October 2006 and May 2009 relating to his left shoulder disability. Subsequently, VA treatment records reflect that he fractured his left clavicle around October 2011, and underwent left shoulder open reduction internal fixation surgery in December 2011. A May 2012 record notes that the Veteran's left shoulder limitation of motion was very limited at that time, and in September 2012, the Veteran underwent revision surgery. As noted above, the Veteran's left shoulder is rated under Diagnostic Code 5201, which pertains to limitation of motion of the arm, and it appears that the Veteran's left clavicular injury may have affected the Veteran's left shoulder range of motion. Because the Veteran has filed a separate claim for service connection for a left clavicular fracture that has not yet been adjudicated by the AOJ and that is being referred herein, the Board finds that these two issues are intertwined and, therefore, that it would be premature to issue a final decision on this matter before the left clavicular issue has been adjudicated by the AOJ. The Board adds that the Veteran has not been provided with a VA examination relating to his left shoulder disability since May 2009, prior to the left clavicular injury, and the Veteran asserts that his left clavicular injury worsened his left shoulder disability. Therefore, a decision on this matter is deferred. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) After the issue of entitlement to service connection for a left clavicular fracture has been adjudicated, perform any additional development necessary with regard to the present issue of entitlement to an initial rating in excess of 10 percent disabling for left shoulder osteopenia (left shoulder disability). Then, readjudicate the Veteran's claim. If his claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs