Citation Nr: 1326423 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 09-46 894A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial rating higher than 10 percent for the service-connected left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to April 1993. He also had three years and ten months of prior active service, but the specific dates are not of record (the Veteran cites total active duty from January 1987 to April 1993, which is consistent with the service treatment records and other evidence of record). This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts that in relevant part denied service connection for tinnitus and granted service connection for a left shoulder disorder and assigned an initial rating of 10 percent disabling effective from June 27, 2008. In June 2013 the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO. A transcript of his testimony is associated with Virtual VA. FINDINGS OF FACT 1. Tinnitus is not etiologically related to service. 2. The Veteran is right-handed. 2. Throughout the period under review the service-connected left shoulder disability has been manifested by with range of motion of the arm to midway between the side and shoulder level, or better, with pain on motion; the Veteran has not shown ankylosis, flail joint, flail shoulder or fibrous union of the humerus and has not shown limitation of motion of the arm to 25 degrees from the side. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for an initial rating of 20 percent, but not more, for the service-connected left shoulder disability are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5201, 5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). Complete notification, to include the disability-rating and effective date elements of a service-connection claim, was provided to the Veteran prior to issuance of the rating decision on appeal. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The increased-rating claim arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In any event, the Veteran has not identified any prejudice due to error in the content or timing of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO has obtained service treatment records (STRs) and post-service VA treatment records from those VA and non-VA providers the Veteran has identified as having treatment records that could be relevant to the issues on appeal. The Veteran has been afforded a VA examination regarding the issues adjudicated below. The Veteran was afforded a hearing before the Board. There are two duties imposed on the person who presides at a hearing: (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked; these duties are not impacted by the Veteran's receipt of a VCAA-compliant notice letter. 8 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010). Here, during the hearing the presiding Member of the Board explicitly cited the bases for the prior determination and elicited testimony from the Veteran in regard to his service during the period in question and to any existing outstanding evidence that should be pursued prior to adjudication of the appeal, as well as the severity of his service-connected left shoulder disability. During the hearing the appellant demonstrated actual knowledge of this information. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate the claim). The Board accordingly finds the Veteran is not prejudiced by any error associated with the hearing. Neither the Veteran nor his representative has made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the Veteran in the adjudication of his appeal. Service Connection for Tinnitus Applicable Legal Principles Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d 1313, 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor involves consideration of whether the opinion is supported by a reasoned analysis. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis Service treatment records (STRs) show the Veteran was issued earplugs when he reported for duty aboard the USS Theodore Roosevelt in August 1987. There is no indication in STRs that the Veteran complained of tinnitus during service. In a self-reported Report of Medical History, prepared in preparation for his separation examination in April 1993, the Veteran indicated by checkmark that he did not have current or past ear, nose or throat trouble, although he checked "don't know" for hearing loss (the form did not specifically ask about current or past ringing in the ears). The corresponding Report of Medical Examination in April 1993 shows clinical evaluation of the ears and neurologic system as "normal." The Veteran had a VA audiological evaluation in March 2009, performed in support of his claims of entitlement to service connection for hearing loss and tinnitus. In regard to tinnitus, the Veteran reported military noise exposure in the form of occasional exposure to the flight deck of aircraft carriers and regular exposure to the large fans and blowers in the radio shack. Occupational noise exposure after discharge from service consisted of 4.5 years in a machine shop, with hearing protection. The Veteran denied recreational noise exposure. He endorsed recurrent/intermittent bilateral tinnitus but could not remember when it began; he characterized the tinnitus as being just a few times per week and lasting a couple of seconds. Audiological evaluation showed the Veteran to have normal hearing bilaterally (no hearing loss). Because the Veteran had normal hearing the audiologist was unable to provide an opinion regarding the etiology of the reported "hearing loss" or the reported occasional tinnitus. The May 2009 rating decision on appeal denied service connection for hearing loss and for tinnitus. The Veteran did not appeal the denial of his hearing loss claim, but appealed the denial of service connection for tinnitus. In his Notice of Disagreement (NOD), received in June 2009, the Veteran reported he had no ringing in his ears when he entered service but since had a high-pitched tone and pressure in the ears that sometimes only lasted a few seconds but was nonetheless bothersome. The Veteran testified before the Board in June 2013 that during service he worked in the radio shack of an aircraft carrier, which was a noisy environment not only because of the noise of the electronic devices but also the noise of the fans and blowers that kept those electronic devices cool. There was also a one-time occasion when he was exposed to aircraft noise during an air show in which the aircraft created a "sonic boom" near the ship. During service he also worked in a radio shack ashore, but the environment was similar to that aboard ship in terms of noise exposure. The Veteran testified he had first noticed tinnitus "a few years ago;" on prodding from his representative as to whether he noticed tinnitus in service the Veteran responded affirmatively but then stated it was "sometime in the 1990s" (the Veteran was discharged from service in 1993). The Veteran described current constant tinnitus. He stated that after service he worked as a machine operator, but used hearing protection in that job and also had tinnitus prior to undertaking that job; before becoming a machine operator he was a painter, which was a quiet occupation. On review of the evidence above, the Board finds the criteria for service connection for tinnitus are not met. Tinnitus is a subjective disease that cannot be medically diagnosed based on clinical observation; tinnitus is typically diagnosed based on patient report either by an audiologist, in conjunction with evaluation of hearing loss, or by a neurologist in conjunction with evaluation of concussive head injury. The Veteran has not been formally diagnosed with tinnitus, but the Board finds at this point that he is competent to describe having the disorder. Kahana, 24 Vet. App. 428. The Board accordingly accepts the Veteran has tinnitus; thus, the first element of service connection - medical evidence of a disability - is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). Where an opinion is used to link the current disability to a cause during service, a competent opinion of a medical professional is required. Caluza, 7 Vet. App. 498. In this case there is no medical opinion supporting an etiological relationship between service and tinnitus. The only medical opinion that relates to such a possible relationship is that of the VA audiologist in March 2009. While the opinion is not a model of clarity, the context of the examination shows the audiologist, having found no hearing loss that could be consequent to reported in-service acoustic trauma, was unable to render an opinion as to whether subjective tinnitus could be related to such reported acoustic trauma. Thus, the audiologist's opinion is consistent with a finding that the Veteran's tinnitus is not likely (less than 50 percent probable) to be related to acoustic trauma in service. The Board notes at this point that the Veteran does not contend, and the evidence of record does not suggest, that he has tinnitus due to a concussive head injury during service. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza, 7 Vet. App. 498. Accordingly, in addition to the medical evidence cited above the Board has carefully considered the lay evidence offered by the Veteran in the form of his testimony before the Board, his correspondence to VA and his statements to various medical providers and examiners. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). It is unclear whether the Veteran is asserting having had tinnitus that began in service and has been continuous since service, since he stated to the VA audiologist that he could not remember when tinnitus began, and he seemed uncertain of his answer during testimony before the Board. In any event, evidence of continuity of symptoms is only for consideration in regard to disorders recognized as "chronic" under 38 C.F.R. § 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, while the Veteran's account of continuous symptoms since service is probative, it is not a sufficient basis for granting service connection in the absence of supporting medical opinion. Further, while the Board has accepted the Veteran as being competent to describe current tinnitus, the etiology of such a disorder is a complex medical question that is not within the competence of a layperson. Kahana, 24 Vet. App. 428; Jandreau, 492 F.3d 1372, 1376-77. In sum, based on the evidence and analysis above the Board finds the Veteran does not have tinnitus that was incurred in or aggravated by service. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Evaluation of Left Shoulder Disability Applicable Legal Principles Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The assignment of a particular diagnostic code (DC) is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC 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 DC by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Disability of the shoulder is rated under the criteria of 38 C.F.R. § 4.71a, DCs (DCs) 5200 through 5203. The rating criteria distinguish between the major (dominant) and minor (non-dominant) extremity. The Veteran in this case is right-handed, so the criteria for the minor extremity apply. The Veteran is not shown to have ankylosis of the scapulohumeral articulation or impairment of the humerus, so DCs 5200 and 5202 are not applicable. At the time service connection was granted, the Veteran's left shoulder disability was characterized as chronic acromioclavicular dislocation, and was rated under the criteria of DC 5203 (impairment of clavicle or scapula). For the minor extremity, a rating of 10 percent is warranted for malunion of clavicle and scapula or for nonunion of clavicle and scapula without loose movement. A rating of 20 percent is warranted for nonunion of clavicle and scapula with loose movement or for dislocation of clavicle and scapula. There is no provision under this DC for a rating higher than 20 percent; however, alternatively, impairment may be rated based on impairment of function of a contiguous joint. The Veteran is also shown to have degenerative joint disease (DJD) of the shoulder. Traumatic DJD (arthritis) is rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010, which defers to the criteria for degenerative arthritis under DC 5003. DC 5003 in turn provides that degenerative arthritis that is 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. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. However, a note to DC 5003 provides that the 20 pct and 10 pct ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Where medical evidence shows claimant has arthritis, and where the diagnostic code applicable to the disability is not based on limitation of motion, such as DC 5203 (impairment of clavicle or scapula), a separate rating may be assigned if there is additional disability due to limitation of motion. VAOPGCPREC 23-97 (July 1, 1997); see also Hicks v. West, 8 Vet. App. 417 (1995). Painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under DC 5003, even though there is no actual limitation of motion. VAOPGCPREC 09-98 (August 14, 1998), citing Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Limitation of motion of the shoulder is rated under DC 5201 (limitation of motion of the arm). For the minor extremity, a rating of 20 percent is assigned for limitation of motion to shoulder level or to midway between the side and shoulder level. A rating of 30 percent is assigned for limitation of motion to 25 degrees or less from the side. For reference, normal range of motion (ROM) of the shoulder is forward flexion 0-180 degrees, abduction 0-180 degrees, internal rotation 0-90 degrees and external rotation 0-90 degrees. 38 C.F.R. § 4.71a, Plate I. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59 cited above are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In any increased rating claim, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability on appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities under review. Evidence and Analysis Service connection was granted effective from June 27, 2008. The period under appellate review begins on that date. Fenderson, 12 Vet. App. 119. The Veteran was treated by Dr. Brian Busconi in August 2008 for left shoulder complaints of intermittent pain, difficulty with repetitive overhead activity, difficulty sleeping at night and pain in the acromioclavicular (AC) joint area associated with locking and catching. Previous attempts at conservative treatment had failed. The Veteran was noted to walk with antalgia to the left upper extremity (LUE). The Veteran had 107 degrees of forward flexion, which was a positive impingement interval. Abduction was to 90 degrees with positive Hawkins sign. Extension was to 10 degrees, internal rotation was to L3 and external rotation was to 90 degrees. There was some weakness to the rotator cuff tendons. X-rays were marked with an impression of no demonstrated abnormality of the left shoulder, but Dr. Busconi characterized the X-rays as showing degenerative joint disease (DJD) in the AC joint with a type 2-3 acromion. Dr. Busconi expressed concern about an injury to the rotator cuff and AC joint area and scheduled the Veteran for magnetic resonance imaging (MRI). The Veteran had an MRI of the left arm and shoulder in August 2008 per referral by Dr. Busconi. The impression was low-grade partial articular surface tear of the subscapularis tendon just proximal to its insertion, subcortical cystic change at the anterior humeral head, mild subacromial subdeltoid bursitis and irregular anteroinferior labrum suggesting chronic tear. A follow-up note by Dr. Busconi in September 2008 states that the Veteran's left shoulder showed positive signs of impingement, weakness of the supraspinatus tendon and pain on cross-arm abduction. MRI had shown significant osteoarthritis of the AC joint, a down-sloping acromion and a high-grade partial thickness tear to the supraspinatus tendon. The Veteran stated he wanted conservative care at present, and received an injection; possible surgery was postponed pending the success of conservative treatment. The Veteran had an annual physical examination by Dr. Carrie DiRamio in October 2008. During clinical examination he denied joint pains or muscle aches, ROM was grossly normal in all extremities and neurologic examination was normal (sensation, reflexes, muscle strength and tone). Dr. DiRamio noted history of calcified left shoulder and noted that left shoulder pain was one of the Veteran's enumerated problems, with rotator cuff surgery scheduled for the following March. The Veteran received treatment by Dr. Carrie DiRamio in November 2008 for reported dizziness. The treatment report is silent in regard to complaints of left shoulder pain, and clinical examination was consistent with the previous note. On March 3, 2009, the Veteran underwent left shoulder surgery performed by Dr. Busconi (arthroscopic subacromial decompression, arthroscopic debridement of intraarticular partial-thickness supraspinatus tendon tear and anterosuperior labral tear, arthroscopic Mumford procedure and intraarticular synovectomy). The preoperative diagnosis and post-operative diagnosis was left shoulder subacromial impingement, anterosuperior labral tear, partial-thickness rotator cuff tear, AC joint DJD and synovitis. Per a follow-up note dated ten days after surgery, the Veteran had tolerated the procedure well and had a current pain level of 2/10. The Veteran had a VA examination of the shoulder in March 2009 approximately two weeks after his surgery. The examiner reviewed the claims file and noted the circumstances of the Veteran's original injury in service. The Veteran endorsed having recently undergone a Mumford procedure on the left shoulder. The Veteran was noted to be right-handed per his report. The Veteran endorsed pain, giving way, stiffness, weakness, decreased speed of motion, swelling and tenderness of the left shoulder; he denied deformity, instability, incoordination, dislocation, subluxation or locking. The Veteran also denied flare-ups. Range of motion (ROM) was flexion/abduction 0-180 degrees and internal/external rotation 0-90 degrees, all without pain (in contrast, the right side had reduced ROM and pain on motion). There was increased pain on repetitive motion. There was no joint ankylosis. Examination also showed well-healed surgical scars on the left shoulder. The examiner noted that private MRI had demonstrated AC joint degeneration, but the Veteran had since had surgery to resect his distal clavicle. The examiner diagnosed left AC joint osteoarthritis status post resection of the distal clavicle. The disability caused significant effect on the Veteran's employment due to pain, decreased strength and difficulty lifting, carrying and reaching. In terms of activities of daily living (ADLs) the left shoulder disability prevented chores, sports and recreation; caused severe impairment of exercise; caused moderate impairment of traveling and driving; caused mild impairment of bathing dressing and grooming; and, caused no impairment of feeding or toileting. The May 2009 rating decision on appeal granted service connection for the left shoulder and assigned an initial rating of 10 percent. In his NOD, received in June 2009, the Veteran reported he had shoulder surgery in March but continued to have chronic pain and discomfort; he was also unable to raise or extend his arm. A rating decision issued in December 2009 granted a temporary 100 percent rating based on surgery requiring convalescence. The 100 percent rating was in effect from March 3, 2009 (the date of the Veteran's Mumford procedure) to June 1, 2009, following which the previous 10 percent rating was restored pending results of reexamination. The Veteran had a VA examination of the left shoulder in December 2009, performed for the purpose of evaluating the Veteran's disability postoperatively. The examining physician reviewed the claims file and noted the Veteran's original injury in service and post-operative treatment including the record of surgery. The Veteran complained of current persistent left shoulder pain and some limitation of motion. The Veteran endorsed pain, tenderness, stiffness, weakness and decreased speed of motion; he denied deformity, instability, giving way, incoordination, effusion or locking episodes. Physical examination showed no evidence of recurrent shoulder dislocations. Examination was positive for crepitus, tenderness and abnormal motion. ROM was flexion 0-120 degrees, abduction 0-100 degrees, internal rotation 0-45 degrees and external rotation 0-75 degrees. Repetitive motion caused no additional pain or limitation of motion. Current X-rays showed no significant abnormality. The examiner diagnosed status post repair partial tear supraspinatus tendon, debridement labral tear, synectomy, status post Mumford procedure. The disability caused significant effect on the Veteran's employment due to pain, decreased strength and difficulty reaching; although the Veteran was currently employed pain may interfere during his daily construction and painting work. In terms of ADLs the left shoulder disability caused moderate impairment of exercise and sports; mild impairment of chores and shopping; and, no impairment of recreation, traveling, driving, bathing, dressing, grooming, feeding or toileting. In his substantive appeal, received in May 2011, the Veteran stated he was dissatisfied with the VA examination because the examiner had only spent about 10 minutes with the Veteran. The Veteran stated he continued to have severe constant left shoulder pain shooting into his fingertips that caused trouble sleeping at night. He also complained that pain medications he took for his left shoulder caused acid reflux, which had to be addressed by an additional medication thus causing additional expense. The Veteran testified before the Board in June 2013 that he had constant pain and limitation of motion, although some days were worse than others. Pain was present even at rest, but was increased with use; he also had difficulty sleeping. The Veteran testified he was currently taking prescription pain medication. He endorsed intermittent flare-ups but could not quantify them. The Veteran stated he was currently working in a machine shop, and although the shoulder caused problems on the job he had to work through them. The Veteran stated his disability had deteriorated somewhat since his last VA examination in 2009, and demonstrated that he was able to raise his arm only to midway between his side and shoulder level. Review of the evidence above demonstrates that the Veteran's ROM of the left arm was limited to 90 degrees in August 2008, per the examination by Dr. Busconi, and to a point midway between the side and shoulder level in June 2013 per his testimony before the Board. This demonstrates a limitation of motion squarely within the criteria for a 20 percent rating under DC 5201. The evidence does not show limitation of motion to 25 degrees or less from the side, even considering the presence of the DeLuca factors (pain on motion and additional limitation of function following repetitive motion), so the criteria for a 30 percent rating are not met. The rating of 20 percent satisfies the minimum requirement under Lichtenfels and Burton. VA must consider potential applications of Title 38 C.F.R., whether or not raised by claimant. Schafrath, 1 Vet. App. 589, 593. The Board has accordingly considered whether any other applicable DC would be more beneficial to the Veteran. However, the only other applicable DC is DC 5203, under which the Veteran was originally rated, and under which 20 percent is the maximum allowable benefit. Therefore, continued rating under DC 5203 would present no benefit to the Veteran. The Board has rated the Veteran under DC 5201 because that DC allows for a potential 30 percent schedular rating and is thus more beneficial to him. Pernorio, 2 Vet. App. 625, 629. The Board has also considered whether separate ratings may be assigned under DCs 5201 and 5203, per VAOPGCPREC 23-97 and Hicks, 8 Vet. App. 417. If a veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Fanning v. Brown, 4 Vet. App. 225 (1993). However, the evaluation of the same manifestation under various different diagnoses is to be avoided; see 38 C.F.R. § 4.14. Further, 38 U.S.C.A. § 1155 implicitly contains the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomology, since such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. Brady v. Brown, 4 Vet. App. 203 (1993). In this case, the Veteran does not actually have malunion or nonunion of the clavicle/scapula as required for compensation under DC 5203; the 10 percent rating was essentially assigned to compensate him for pain, which is considered under DC 5201. Thus, assigning separate ratings under DCs 5201 and 5203 would essentially compensate the Veteran for the same symptoms and would constitute pyramiding. The Board has found no distinct period during the course of the appeal in which the criteria for a rating higher than 20 percent were met, so "staged rating" under Fenderson is not applicable. In that regard, the VA examination in December 2009 arguably showed entitlement to a rating less than 10 percent, in that his ROM was to 120 degrees, considerably higher than the shoulder. However, given the Veteran's account of his overall impairment in his testimony before the Board, the Board finds his overall disability picture more closely approximated the criteria for a 20 percent rating throughout the period under review. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's left shoulder disability on appeal, as he has described no functional impairments that are not specifically incorporated in the schedular criteria as expanded by DeLuca. Further, a higher schedular rating is available under the appropriate DC. The rating criteria are therefore adequate to evaluate the Veteran's disability on appeal, and referral for consideration of extraschedular rating is not warranted. The United States Court of Appeals for Veterans Claims (Court) recently held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In this case, the Veteran is shown to be currently employed, so a claim for TDIU is not raised by the rating issue on appeal. The benefit of the doubt in this case has been resolved in favor of the Veteran. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for tinnitus is denied. An initial rating 20 percent for the service-connected left shoulder disability is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs