Citation Nr: 1326326 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 07-37 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to an initial rating in excess of 10 percent for a left shoulder disability prior to May 6, 2010 and a rating in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active service from February 1976 to January 1980, December 1990 to April 1991, and from October 2001 to October 2002. The Veteran also had additional U.S. Navy Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which, in pertinent part, denied the Veteran's claim of service connection for diabetes mellitus. This matter also is on appeal of a November 2007 rating decision in which the RO granted the Veteran's claim of service connection for a left shoulder disability and assigned a 10 percent rating effective June 10, 2005. A Board videoconference hearing was held before the undersigned Acting Veterans Law Judge in June 2010 and a copy of the hearing transcript has been added to the claims file. In January 2011, the claims were remanded for further development. In a February 2012 rating decision, the Appeals Management Center (AMC) granted a higher 20 percent rating for the left shoulder disability, effective May 6, 2010. The case was subsequently returned to the Board. The issue of service connection for diabetes mellitus 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. The Veteran is right hand dominant. 2. Prior to May 6, 2010, the Veteran's left arm motion was not shown to be limited to shoulder level or less; and ankylosis, significant impairment of the humerus and significant impairment of the scapula were not shown. 3. From May 6, 2010, the Veteran's left arm motion was not shown to be limited to 25 degrees from the side or less; and ankylosis, significant impairment of the humerus and significant impairment of the scapula were not shown. CONCLUSIONS OF LAW 1. Prior to May 6, 2010, the criteria for an initial rating in excess of 10 percent for left shoulder disability were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5019, 5201 (2012). 2. From May 6, 2010, the criteria for a rating in excess of 20 percent for left shoulder disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). The Board notes that the instant claim for increase arose from the initial grant of service connection. For initial rating claims, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because 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 § 5103(a) notice. See Dingess/Hartman v. Nicholson, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, VCAA notice pertaining to the Veteran's appeal of the initial rating assigned for the left shoulder disability was not required. With regard to the duty to assist, the claims file contains the service treatment records, VA treatment records, private treatment records, the reports of VA examinations and the assertions of the Veteran and his representative, including the June 2010 hearing testimony. Regarding the hearing before the Board, 38 C.F.R. 3.103(c)(2) requires that a Veterans' Law Judge (VLJ) chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the Veteran's June 2010 hearing, all parties agreed as to the issues on appeal, including the issue herein decided. The parties also had a specific discussion on the evidence contained in the record and what pertinent evidence might still be outstanding. Additionally, the Board's subsequent remand further instructed the RO to obtain any outstanding VA treatment records and/or any additional records identified by the Veteran and to afford the Veteran with a contemporaneous VA examination to assess the current severity of his left shoulder disability. There is no indication the Veteran has any additional evidence to submit or that there is any additional evidence for VA to obtain regarding this claim. Thus, the Board finds that the Board's duties under Bryant have been met. Further, to the extent there were any shortcomings, the Veteran was not prejudiced as there is no indication there is any further outstanding evidence pertinent to his claim. Additionally, the RO/AMC appropriately complied with the instructions in the January 2011 remand, as a VA examination was conducted in February 2011 which provides the findings necessary to rate the left shoulder disability, and additional medical records were obtained. The Board is satisfied there was sufficient compliance with these remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim. II. Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). At a September 2005 VA examination, the Veteran reported that he injured his left shoulder in service when pushing a 500 pound safe with other servicemen. He stated that one of the servicemen lost their grip on the rope and the whole weight of the safe was placed on him and another serviceman. He felt severe pain in the left shoulder but continued working. The shoulder pain subsequently worsened after his deployment to Guam in 2001, however. The pain had continued to disturb his sleep and he was unable to sleep on his left shoulder. He was eventually seen in the urgent care clinic at Mather Field VA in June 2005. At that time, he was noted to have tendonitis of the left shoulder and was given anti-inflammatory medication and then pain medication. The Veteran currently complained of left shoulder pain 1 to 3 times per month. He stated that each episode lasted for 1 to 3 days. The pain was mostly over the acromioclavicular joint of the left shoulder. The Veteran stated that the nature of the pain was knife like and he felt stiffness, weakness and lack of endurance. He took Vicodin to control the pain. He also indicated that he experienced flare-ups with severe pain to the left shoulder at least once a month. Those episodes lasted for two days. He had missed two days of work in July 2005 and also in August 2005. He used family leave to rest those days. The Veteran reported that he was working as a mailman and had to deliver mail. He was able to work in spite of the left shoulder pain. After returning home, however, he had to rest and was not able to perform any activities such as yard work, lifting, throwing or raising his arms overhead, particularly during flare-ups. He denied any trauma, slip and fall accidents or motor vehicle accidents since his retirement from the Navy. Physical examination showed normal contour of the shoulders, girdles, clavicles and supraspinatus. The Veteran could face the wall and push against it with pain in the left acromioclavicular joint. Palpation also revealed pain in the acromioclavicular joints. Range of motion of the left shoulder was as follows: flexion to 180 degrees, abduction to 180 degrees, hyperextension to 50 degrees, adduction to 50 degrees, internal and external rotation to 90 degrees. The Veteran experienced pain and grimacing was seen during range of motion testing of the left shoulder. He also had a 10 degree loss in all ranges of motion with repetitive movements primarily due to pain and to a lesser extent due to weakness, fatigability and lack of endurance. A June 2005 X-ray had shown calcified tendonitis/bursitis. The VA examiner diagnosed chronic tendonitis, left shoulder. In the November 2007 rating decision, the RO granted service connection for chronic tendonitis of the left shoulder and assigned a 10 percent rating effective June 10, 2005, under Diagnostic Codes 5299-5019. VA treatment records from 2005 to 2007 show ongoing treatment and evaluation for left shoulder disability, with complaints of pain. In November 2007, the Veteran presented to the emergency room for evaluation of chronic left shoulder pain. Physical examination showed full range of motion of the left shoulder, with no point tenderness. There was some diffuse posterior tenderness to palpation. A November 2007 X-ray showed calcific bursitis/tendonitis as before. The diagnostic assessment was acute exacerbation of chronic left shoulder pain. At a December 2007 primary care visit, the Veteran reported that his shoulder pain was increased with arm movements approaching and beyond shoulder level. He complained of an intermittent tingling sensation and at times a stabbing pain in his left hand that was most pronounced with firm gripping. He also experienced left wrist and lateral elbow pain. Physical examination showed that left shoulder abduction and flexion were limited about 20 degrees due to pain. There was moderate tenderness with abduction and flexion toward the endpoint. There was mild tenderness in the anterior region of the shoulder on palpation and mild to moderate tenderness in the left periscapular region and tenderness over the left lateral epicondylar region on palpation. The pertinent diagnostic assessment was chronic left shoulder pain with suspected rotator cuff/impingement tendonitis. The Veteran was referred to the orthopedic clinic. In a November 2007 notice of disagreement, the Veteran asserted that his left shoulder hurt 24 hours per day if he did not take medication. He reported that the mobility of the shoulder was very limited and was even more limited than it had been a year previously. He indicated that he could not wash his back without his wife's help. His wife also rubbed his shoulder every day after he came home from work to reduce his pain. On his July 2008 Form 9, the Veteran indicated that due to his left shoulder he was unable to do the lifting he could do in the past. He also indicated that he stopped receiving physical therapy because the pain he experienced during the therapy caused too much discomfort for him to continue. He also could no longer do overtime at work because the pain caused fatigue in the shoulder making him unable to work long hours. He also had had to call in sick more often. VA treatment records from 2008 to 2009 show continued treatment and evaluation for the left shoulder disability. At a January 2008 VA orthopedic consultation, the Veteran reported constant left shoulder pain of varying intensity. He reported that his whole arm would go numb at times. He had pain in the back part of his shoulder blade mostly with motion overhead or behind the plane of his body. Range of motion of the left shoulder was to 140 degrees of flexion with pain at the end of motion and 40 degrees active external rotation. An X-ray showed a decreased acromiohumeral interval with anterior acromial and inferior glenohumeral osteophyte. The examining physician felt that the Veteran had some pain from rotator cuff syndrome. She thought that part of the pain, especially the radiation down the arm to the hand was from something else, either nerve pathology or cervical spine related pain. Later in January 2008, the Veteran phoned his VA medical center with a complaint of awaking with left shoulder pain. He had gone to work but the pain became worse and he was concerned about doing any lifting. As there was no light duty available, he went home. He noted that he had been taking ibuprofen for pain. He said that he had had some numbness in the arm and sometimes his pain went down the arm. It was also painful to move the arm back over his head. In February 2008, the Veteran was seen for a physical therapy consultation. He reported pain inside the shoulder joint and that sometimes the whole arm would go numb. He indicated that at home, he did work on his cars, cut the grass, worked on his computer at home and watched TV. It was noted that a December 2007 X-ray of the cervical spine had shown degenerative changes with multilevel neural foraminal narrowing. The physical therapist noted that the Veteran was independent in all activities of daily living except that he could not wash his back. Physical examination showed that range of motion was 120 degrees flexion and 110 degrees abduction. Internal rotation was to the center of the belt in the back and external rotation was within normal limits. The physical therapy goals included increasing the Veteran's left shoulder range of motion to normal. In June 2009, the Veteran complained to his primary care provider about increased left shoulder pain. He declined pain medications and indicated that he rarely used Motrin. He was not interested in surgery or cortisone injections. He also reported pain in the left elbow. Physical examination showed tenderness to the anterior aspect of the shoulder with decreased range of motion. VA treatment records from 2009 to 2011 show continued treatment and evaluation of left shoulder disability. At an October 2009 orthopedic surgery consultation, muscle testing was thought to be normal. All muscle groups were functioning. Resisted initiation of abduction was strong with discomfort referred not to the shoulder pain but to the tip of the olecranon pain. Voluntary range of motion was decreased. There was no pain or tenderness at the site where a deposit of calcium was seen on X-ray. The orthopedic surgeon could not rule out rotator cuff deterioration or muscle damage without magnetic resonance imaging (MRI) scan data. A November 2009 MRI scan of the left shoulder produced a diagnostic impression of calcific tendonitis of the infraspinatus tendon and tendinosis of this tendon. No full thickness rotator cuff tear was identified. There was hypertrophy of the bone and soft tissue of the acromioclavicular joint, which may be a source of the impingement and there was a 6 by 8mm subcortical cyst on the posterolateral humeral head. At a May 2010 orthopedic surgery consultation, the Veteran's pain was very poorly localized. The Veteran reported that it was circular, deep inside the joint. When the orthopedic surgeon attempted to localize the pain, the Veteran generally pointed to the superior aspect of the shoulder, his trapezius and his glenohumeral joint superiorly and posteriorly. These symptoms were worse with any shoulder motion, picking up heavy objects, overhead activities and lying on his left shoulder. Even at rest, the Veteran complained of a dull, pulsating soreness in the shoulder. He denied any other trauma or neck pain. He also denied numbness or tingling in the left hand. Examination of the left shoulder showed tenderness at the AC joint with localization of pain diffusely over the posterolateral aspect of the shoulder. Range of motion examination was limited as the Veteran displayed tenderness with any motion of the shoulder. The surgeon did get him to forward flex to about 80 degrees actively, to abduct to 45 degrees, to externally rotate to about 10 degrees and to internally rotate to the posterior iliac superior spine level. When the surgeon tried to push the Veteran to do more, he complained of shoulder tenderness. Provocative examination was difficult to perform with the Veteran since he displayed tenderness with any active or passive motion. He did not appear to display any anterior, posterior or inferior instability but had significant guarding with any maneuvers of the shoulder. The surgeon noted that the Veteran's MRI had shown signal changes at the supraspinatus insertion over the greater tuberosity but no interval gapping or any signs of apparent tears. There was a subchondral cyst over the humeral head and arthritic degeneration at the AC joint. There were no significant signs of fatty infiltration or atrophy of the rotator cuff muscles. The biceps tendon was in its groove. The subscapularis tendon appeared to be intact and there were no significant signs of labral injury. The surgeon diagnosed the Veteran with posttraumatic arthritis of the left shoulder, rotator cuff syndrome and significant shoulder dysfunction with pain, weakness and limited range of motion. At his June 2010 Board hearing, the Veteran testified that the left shoulder had affected his daily life. He also indicated that the shoulder had worsened since the September 2005 VA examination. He felt that he had more limited range of motion in the shoulder and more pain. Additionally, he felt he was limited in his ability to lift things. He noted that even when he lifted the tailgate on his van, he could not use his left shoulder. Also, when he lay on his shoulder at night, after involuntarily switching positions while asleep, he would wake up in pain. In a June 2010 letter, the Veteran's private treating physician indicated that he reviewed the Veteran's medical records, and an MRI of the left shoulder obtained in November 2009 showed calcific tendinitis with no rotator cuff tears, hypertrophy of the bone and soft tissue at the acromioclavicular joint and osteoarthritis. He noted that Dr. H. (the Veteran's VA orthopedic doctor) had diagnosed posttraumatic arthritis of the left shoulder. At a February 2011 VA examination, the Veteran reported progressively worse left shoulder pain with weakness, stiffness, swelling, heat, fatigue, lack of endurance, clicking, crepitus or popping and decreased range of motion. He indicated that he experienced stiffness in the morning and that the shoulder would wake him up at night. There was no radiation of pain or incapacitating episodes. He reported that it had a severe effect on chores, shopping, exercise, sports and recreation and a mild effect on bathing and grooming. He reported severe, constant daily flare-ups with further pain. The pain was worse when doing sudden movements and lifting objects heavier than 10 pounds and was better with rest and medication. The examiner noted that the Veteran continued to work as a mailman and that he reported missing four weeks of work in the past year due to his left shoulder condition. The Veteran reported that he had difficulty lifting objects and closing the hatch on his van. He would compensate with his right shoulder. Physical examination showed that motor strength was generally 5/5 in the upper extremity. Inspection of the left shoulder showed no lesions, deformities, malalignment, erythema, ecchymosis, heat, instability, swelling, drainage or scars. There was no crepitus or guarding on palpation. There was tenderness to the AC joint and rotator cuff muscles on palpation. The shoulder showed pain on motion with no evidence of weakness, decreased strength with range of motion, lack of endurance, instability, fatigue, spasm, incoordination, subluxation or any obvious atrophy or lack of muscle tone. Forward flexion of the left shoulder was to 80 degrees and was not more painful in the supinated position than when performed in the pronated position. Adduction was to 70 degrees, external rotation was to 60 degrees and internal rotation was to 60 degrees. There was no additional limitation in any direction after repetitive use. The diagnosis was left shoulder calcific tendonitis with 0 degrees of additional loss of motion after repetitive use. The examiner commented that there was no true fatigability, weakness, lack of endurance or incoordination of the left shoulder. The pain on repetitive use had the primary functional impact. The Veteran's left shoulder disability has been assigned a 10 percent rating prior to May 6, 2010 based on bursitis of the shoulder under Diagnostic Code 5019 based on otherwise noncompensable limitation of motion due to pain. From May 6, 2010, the disability was assigned a 20 percent evaluation under Diagnostic Code 5201. Staged ratings have already been assigned. See Fenderson, supra. Diagnostic Code 5019 provides that bursitis will be rated based on limitation of motion of the affected part, as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5019 (2012). Diagnostic Code 5201, for limitation of the arm, provides for a 20 percent rating when limitation of the minor arm is at shoulder level or midway between the side and shoulder level and a maximum 30 percent evaluation when limitation of motion of the minor arm is to 25 degrees from the side. Diagnostic Code 5003 states that, for degenerative arthritis, when the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected. 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). The Federal Circuit Court has held that the plain language of 38 C.F.R. § 4.71a confirms that a Veteran is only entitled to a single disability rating under Diagnostic Code 5201 for each arm that suffers from limited motion at the shoulder joint. The Diagnostic Code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to "limitation of motion of" the arm. Yonek v. Shinseki; 2012-7120, 2013 WL 3368972, C.A. Fed. 2013. (Fed. Cir. Aug. 16, 2013). Normal range of motion of the shoulder is forward elevation (flexion) to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. The record shows that the Veteran identifies as right handed. Therefore his left shoulder/arm is his non-dominant (minor) upper extremity, and the rating criteria for the minor arm will be considered. The Board will consider whether a higher rating is warranted under Code 5201 for both rating periods as higher ratings are potentially available under this Code. The Board also notes that assigning separate ratings under Code 5201 and Code 5019 is impermissible as it would amount to pyramiding. See 38 C.F.R. § 4.14. For this same reason, assigning a separate rating under Code 5003 (for arthritis of the shoulder), along with a rating under Code 5201, or in addition to the rating under Code 5019, is also impermissible. Id. Prior to May 6, 2010, range of motion of the left (minor) arm was not shown to be to be to midway to the side and shoulder level or less. To the contrary, at the September 2005 VA examination, both flexion and abduction of the shoulder were actually shown to be normal (to 180 degrees). Also, while later VA evaluations did show some level of limitation, there are no findings prior to May 6, 2010 showing limitation to anywhere near midway to the side and shoulder level (i.e. to 45 degrees) or less. Consequently, prior to this date there is no basis for assigning a rating in excess of 10 percent for the left shoulder disability under Diagnostic Code 5201. 38 C.F.R. § 4.71a. The Board has also considered whether a higher rating could be assigned under other rating codes applicable to disability of the shoulder. However, as ankylosis and impairment of the humerus, scapula or clavicle within the meaning of these other rating codes are not shown, such codes are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. The Board also notes that although the Veteran has complained at times of pathology, including numbness, in the lower portions of the right arm and hand, the weight of the competent and probative evidence does not show that this pathology is related to the Veteran's service connected left shoulder disability and these other body parts are not subject to service connected compensation. Additionally, the Veteran has not asserted that these body parts should be subject to such compensation. Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the Veteran has functional loss beyond that currently compensated. 38 C.F.R. §§4.40, 4.45, Deluca v. Brown 8 Vet. App. 202 (1995). In this regard, during the September 2005 VA examination, the Veteran was only shown to have 10 degree loss in all ranges of motion with repetitive movements primarily due to pain and to a lesser extent due to weakness, fatigability and lack of endurance. Thus, this additional impairment does not equate to functional loss compatible with limitation of shoulder motion to midway to the side and shoulder level. There is also no other evidence indicating such a significant level of functional loss. The Veteran did report during the September 2005 VA examination that upon returning home after working full time he had to rest and was not able to perform any activities such as yard work, lifting, throwing or raising his arms overhead, particularly during flare-ups. However, this level of loss of function following a day of working full time as a mail carrier is contemplated by the existing 10 percent rating. From May 6, 2010, range of motion of the left (minor) arm was not shown to be to be to 25 degrees from the side or less. Instead, at the May 6, 2010 orthopedic consultation, abduction was to 45 degrees and flexion was to 80 degrees and at the February 2011 VA examination, flexion was to 80 degrees and abduction was to 70 degrees. There are also no other findings of record from May 6, 2010 showing limitation of left arm motion to 25 degrees from the side or less. Consequently, from this date there is no basis for assigning a rating in excess of 20 percent for the left shoulder disability under Diagnostic Code 5201. 38 C.F.R. § 4.71a. The Board has also considered whether a higher rating could be assigned under other rating codes applicable to disability of the shoulder. However, as ankylosis and impairment of the humerus, scapula or clavicle within the meaning of these other rating codes are not shown, such codes are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. Additionally, once again, although the Veteran has complained at times of pathology, including numbness in the lower portions of the right arm and hand, the weight of the competent and probative evidence does not show this pathology is related to the Veteran's service connected left shoulder disability and these other body parts are not subject to service connected compensation. Further, the Veteran has not asserted that these body parts should be subject to such compensation. Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the Veteran has functional loss beyond that currently compensated. 38 C.F.R. §§4.40, 4.45, Deluca, 8 Vet. App. 202 (1995). In this regard, during the February 2011 VA examination, the Veteran was not found to have any additional loss of motion on repetitive use. The Veteran did subjectively report during the February 2011 VA examination severe constant flare-ups of the left shoulder involving pain, weakness, fatigue and incoordination but given the objective findings showing significant function during that examination with no additional limitation on repetitive use, the Board does not find credible the Veteran's assertion that his shoulder is in such a constant state of severe flare-up. There is also no other evidence indicating functional loss compatible with left arm motion limited to 25 degrees from the side. The May 2010 orthopedic surgeon did not weakness as well as pain but his overall findings do not indicate such a significant level of functional loss. Once again, the Veteran has continued to maintain full time employment as a mail carrier, albeit reporting that he does have to take a significant number of sick days due to left shoulder problems. Even with the sick days, however, this level of impairment is consistent with the assignment of the existing 20 percent rating (i.e. a 20 percent level of occupational impairment). The Board has also considered whether the Veteran's claim for increase should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted for either of the time frames in question. The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The rating criteria adequately contemplate the manifestations of the Veteran's left shoulder disability, including pain, stiffness and limitation of motion. Ratings in excess of those assigned are provided for certain manifestations of the service-connected disability, but the medical evidence reflects that those symptoms are not present. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. Thus, referral for consideration of extraschedular rating is not warranted. Therefore, the Board finds that the preponderance of the evidence is against the claim for a higher rating for the service-connected left shoulder disability, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Prior to May 6, 2010, an initial rating in excess of 10 percent for left shoulder disability is denied. From May 6, 2010, a rating in excess of 20 percent for left shoulder disability is denied. REMAND The January 2011 remand instructed the RO to arrange for a VA examination in order that opinions could be provided concerning the likely etiology of the Veteran's diabetes. After reviewing the claims file, the examiner was asked to opine as to the likelihood that the diabetes was directly related to service and/or was aggravated by service. The Veteran was afforded a VA examination in February 2011. The examiner concluded that the Veteran's had been diagnosed with diabetes type II while on active duty and that therefore, the disease was related to active service. The examiner did not comment on whether or not the diabetes was aggravated by service. Unfortunately, the examiner was mistaken when finding that the diabetes was diagnosed while the Veteran was on active duty. Instead, the record shows that it was diagnosed in August 1996 when the Veteran was not on active duty. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based upon an inaccurate factual premise has no probative value.). Thus, the Board cannot afford the VA examiner's opinion any probative value. Also, because the examiner did not address whether the diabetes was aggravated by the Veteran's subsequent period of active duty, as he has contended, a further remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). (A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). On remand, if the February 2011 VA examiner is available, she should provide a supplemental opinion to the February 2011 VA examination report, which addresses the likelihood that the Veteran's diabetes was aggravated by his active duty military service from October 2001 to October 2002. Additionally, the examiner should also provide a supplemental opinion addressing the likelihood that the Veteran's current diabetes was caused by or the result of his earlier periods of active duty from February 1976 to January 1980 and from December 1990 to April 1991. Prior to arranging for the addendum opinion, the RO/AMC should obtain all available records of VA treatment for diabetes and its complications from March 2011 to the present. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all available records of VA treatment for diabetes and its complications from March 2011 to the present. 2. If available, the February 2011 VA examiner should provide supplemental medical opinions to the February 2011 VA examination report as to the etiology of current diabetes mellitus. The claims file must be provided to and reviewed by the examiner, including the medical records and prior VA examination reports. (a) The examiner should specifically provide an opinion as to the likelihood (likely, at least as likely as not, or unlikely) that the Veteran's diabetes mellitus, diagnosed in August 1996, was caused by or is related to his earlier periods of active duty service from February 1976 to January 1980 and from December 1990 to April 1991, or was manifested within one year after his April 1991 separation from service. (b) The examiner should specifically provide an opinion as to the likelihood (likely, at least as likely as not, or unlikely) that the Veteran's diabetes mellitus, diagnosed in August 1996 while he was not on active duty, was permanently aggravated by his active duty military service from October 2001 to October 2002. The examiner should provide a complete rationale supporting any provided medical opinion(s). If the February 2011 VA examiner is not available, the supplemental opinions should be provided by another qualified medical professional. In this case, the Veteran may need to be reexamined but this is left to the designee's discretion. 3. The RO/AMC should review the supplemental opinions provided to ensure they are in full compliance with the remand instructions. If not, appropriate action must be taken to ensure full compliance. 4. The RO/AMC should then readjudicate the claim. If it remains denied, the RO/AMC should issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matter 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 action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. L. WASSER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs