Citation Nr: 1327959 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-11 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a rating higher than 20 percent for residuals of a right humerus fracture with cystic changes. 2. Entitlement to an effective date earlier than September 27, 2007 for the assignment of a 20 percent rating for residuals of a right humerus fracture with cystic changes. ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to September 1982, from July 1983 to August 1983, and from December 1986 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In May 2008, the RO denied an increased rating for residuals of a right humerus fracture with cystic changes. The Veteran perfected an appeal seeking a higher rating. In February 2010, the RO granted a 20 percent rating for residuals of a right humerus fracture with cystic changes effective from September 27, 2007. The Veteran perfected an appeal seeking an earlier effective date. The Veteran's Virtual VA file has also been reviewed as part of his appeal. Notably, in his February 2012 VA Form 9, the Veteran raised additional issues. He requested that a prior denial for service connection for sleep apnea be considered for a notice of disagreement or reopening. He also raised the issue of an earlier effective date for his service-connected tinnitus. These matters are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Residuals of a right humerus fracture with cystic changes are not manifested by range of motion of the arm limited to midway between the side and shoulder level, malunion of the humerus with marked deformity, or frequent dislocations and guarding of all arm movements. 2. Residuals of a right humerus fracture with cystic changes include a right biceps tendon rupture manifested by a deformity and weakness with use. 3. The Veteran filed a claim for an increased rating for service-connected residuals of a right humerus fracture with cystic changes on September 27, 2007; a 20 percent rating was granted in a February 2010 rating decision, which assigned an effective date of September 27, 2007. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for residuals of a right humerus fracture with cystic changes have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5201-5203 (2012). 2. The criteria for a separate 10 percent rating for a right biceps tendon rupture associated with residuals of a right humerus fracture with cystic changes have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.56, 4.73, Diagnostic Code 5305 (2012). 3. The criteria for an effective date earlier than September 27, 2007 for the grant of a 20 percent rating for residuals of a right humerus fracture with cystic changes have not been met. 38 U.S.C.A. § 5110 (West 2002 and Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's increased rating claim, a letter dated in February 2008 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The February 2008 letter, and an additional July 2010 letter, provided notice on the "downstream" issue of an earlier effective date for the Veteran's shoulder disability. A December 2011 statement of the case (SOC) readjudicated the matter. Notably, the Veteran has not alleged prejudice from any downstream notice defect. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "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 the downstream issues"). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). B. Duty to Assist The Veteran's private treatment records and lay statements have been associated with the claims file. The Veteran was also afforded VA examinations. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's shoulder condition. Notably, a March 2008 examiner stated that he could not determine additional limitation due to repetitive use during flare-ups without resorting to mere speculation. However, the Veteran reported during that examination that he experienced flare-ups only once per month for 2 hours. Given the infrequency of these flare-ups, additional examination is not necessary. See Voerth v. West, 13 Vet. App. 117, 122-23 (1999) (holding that a condition that became inflamed approximately twice a year for a few days did not require examination during flare-up). Further, the Veteran was afforded subsequent VA examinations in December 2009 and February 2012. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Rating A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment). The Veteran is currently assigned a 20 percent rating under Diagnostic Code 5203-5202 for his residuals of a right humerus fracture with cystic changes. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203 (2012). A distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. The Veteran is right-handed, and therefore his service-connected condition affects his major extremity. Diagnostic Code 5201 governs limited motion of the shoulder. Limitation of motion of the major shoulder to shoulder level warrants a 20 percent evaluation. Motion to midway between the side and shoulder level warrants a 30 percent evaluation for the major arm. Motion no more than 25 degrees from the side warrants a 40 percent rating for the major arm. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal (full) 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. Under Diagnostic Code 5202, for impairment of the humerus, a 20 percent rating is granted when there is malunion with moderate deformity. Malunion with marked deformity warrants a 30 percent rating for the major arm. Also under Diagnostic Code 5202, for recurrent dislocations at the scapulohumeral joint, a 20 percent rating is granted with infrequent episodes and guarding of movement only at shoulder level for either arm. When there are frequent episodes and guarding of all arm movements, a 30 percent rating is warranted for the major arm. Fibrous union of the major arm warrants a 50 percent rating. Nonunion (false flail joint) warrants a 60 percent rating for the major arm. Loss of head (flail shoulder) warrants an 80 percent rating for the major arm. Diagnostic Code 5203 does not contemplate a rating in excess of 20 percent. Therefore, it will not be considered. Diagnostic Code 5200 addresses ankylosis of the scapulohumeral articulation. This is not evident at any point during the appeal period, so it will also not be considered. The Veteran has also asserted that his condition is manifested by a right biceps muscle injury. In the May 2008 rating decision, the RO declined to evaluate the Veteran's muscle condition, citing the regulations governing pyramiding. See 38 C.F.R. § 4.14. Nonetheless, the Board will consider the appropriate rating criteria. Diagnostic Code 5305 provides ratings for a disability of Muscle Group V. The function of these muscles are as follows: elbow supination (1) (long head of biceps is stabilizer of shoulder joint); flexion of elbow (1, 2, 3). The muscle group includes flexor muscles of elbow: (1) biceps; (2) brachialis; (3) brachioradialis. See 38 C.F.R. § 4.73, Diagnostic Code 5305. A "slight" injury warrants a noncompensable rating. A slight muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability. Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. A "moderate" injury warrants a 10 percent rating. A moderate muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. A "moderately severe" injury of the dominant arm warrants a 30 percent rating. A moderately severe muscle disability contemplates a through and through or deep penetrating wound by a small high velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. A "severe" injury of the dominant arm warrants a 40 percent rating. A severe muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements. Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. If present, the following are also signs of "severe" muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. B. Evidence A VA examination was conducted in March 2008. The Veteran reported constant pain rated as 1/10 to 2/10 in severity. He experienced flare-ups of pain up to 5/10 about once a month from cold weather or using a keyboard and mouse for 8 hours. He treated his condition with physical therapy for 2 months. He reported experiencing limited range of motion, but denied any weakness, stiffness, swelling, heat, redness, instability, giving way or "locking." He denied any effect on occupational function, but his condition affected his ability to exercise. On examination, forward flexion was 170 degrees and abduction was 180 degrees. Internal and external rotation were both 90 degrees. All ranges of motion were without pain, and there was no additional reduced motion, pain, weakness, fatigue, incoordination, or lack of endurance following repetitive testing. However, biceps and rotator cuff strength was 5-/5. The examiner could not express additional limitations due to repetitive use during flare-ups without resorting to speculation. X-rays revealed a high riding shoulder, calcific tendonitis, and questionable rotator cuff pathology. In April 2008 and October 2009 statements, the Veteran reported that he treated his right shoulder and biceps injury conservatively. He declined to have surgery or take medication due to the possible negative consequences of those treatments. He stated that he experienced minor dislocations on a daily basis. Private records dated April 2009 noted some right biceps atrophy, though strength was 5/5. An additional examination was conducted in December 2009. The Veteran reported experiencing pain and stiffness in the morning, moderate weakness. He also had an abnormal bulge of his biceps and moderate tenderness. He denied any instability, locking, giving way, effusion, or episodes of dislocation or subluxation. He treated his condition with stretching and massage. He experienced flare-ups with heavy work or swimming, during which pain was 5/10 to 6/10. These did not result in any additional loss of motion. His condition affected his ability to use a mouse, and affected exercise activities such as swimming, pull-ups and pushups, and overhand sports. On examination, there was moderate tenderness of the shoulder and an abnormal bulge of the biceps. Strength was 4/5. Forward flexion and abduction were both 150 degrees, with the onset of pain at 130 degrees. External rotation was 30 degrees, with the onset of pain at 25 degrees. Internal rotation was 70 degrees, with the onset of pain at 60 degrees. There was guarding of movement at the extreme ranges of motion. There was no additional loss of motion or function following repetitive testing. X-rays revealed stable right rotator cuff impingement and stable calcific tendinitis compared to the March 2008 findings. Magnetic resonance imaging of the right shoulder in January 2010 showed subacromial subdeltoid bursitis; degenerative changes of the AC joint including capsular hypertrophy with surrounding edema; and supraspinatus tendinopathy with low grade partial thickness under surface tearing and a delaminating, insterstitial component. There were multiple nondisplaced avulsion fragments from the greater tuberosity. In February 2010, the RO awarded the Veteran an increased rating of 20 percent under DC 5202, for malunion of the humerus. Another VA examination was conducted in February 2012. The Veteran reported constant right shoulder pain with flare-ups caused by cold, wrong positioning, and reaching for something. He experienced some popping and weakness when working out. He denied any impact on daily activities, except for weakness in the right biceps when exercising. He treated his condition with occasional shoulder wraps at night. Examination revealed flexion of 170 degrees with the onset of pain at the end range of motion. Abduction was 155 degrees with the onset of pain at the end range of motion. These findings were unchanged following repetitive testing, though the Veteran did report increased pain. There was no guarding of the shoulder. Strength was 5/5. There was no history of recurrent dislocation. A separate examination was provided for the Veteran's muscle injury. He was noted to have a non-penetrating muscle injury secondary to a 1996 parachute jump. There was no scar associated with the injury. There was no fascial defect. His condition did involve a rupture and loss of function of the biceps tendon, including occasional weakness and loss of power. Strength was 5/5. Muscle atrophy was not present. A bulge at the right biceps tendon was noted. C. Analysis Based on the evidence of record, rating higher than 20 percent is not warranted for the Veteran's right shoulder disability. However, a separate 10 percent rating is warranted for the symptomatology associated with his ruptured biceps tendon. A higher rating under Diagnostic Code 5201 requires range of motion of the arm to be limited to midway between the side and shoulder level. During the appeal period, range of motion of the right shoulder was, at worst, 130 degrees, even when accounting for pain and repetitive use. This is well in excess of shoulder level (90 degrees), and therefore a higher rating under Diagnostic Code 5201 is not appropriate. The Board has also considered whether a separate rating under DC 5201 is appropriate; however, the Veteran has not demonstrated motion of the shoulder limited to shoulder level, i.e., 90 degrees. Again, range of motion of the right shoulder was, at worst, 130 degrees, even when accounting for pain and repetitive use. A higher rating under Diagnostic Code 5202 requires either marked deformity of the humerus, or recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all arm movements. In this case, X-rays in March 2008 revealed that the Veteran has a high riding shoulder. There are no other findings of deformity of the shoulder noted in the claims folder, and the deformity is not shown to be marked, as illustrated by a photograph taken at the time of the March 2008 VA examination. In addition, while the Veteran submitted an October 2009 statement which described minor dislocations on a daily basis, subsequent VA examinations noted no such complaints, or any other findings of recurrent dislocation. The December 2009 VA examination noted guarding only at the extreme ranges of motion. This, as well as the Veteran's reports of engaging in exercise activities such as pull-ups, is not consistent with "guarding of all arm movements" as contemplated by Diagnostic Code 5202. Therefore, a higher rating under that code is not warranted. The Veteran's condition also includes a right biceps injury, which is manifested by a deformity and occasional weakness and loss of power. The Veteran consistently reported that his condition did not generally affect his daily activities, but did impair his ability to exercise. These findings are consistent with a "moderate" muscle injury under Diagnostic Code 5305, which contemplates consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use. Therefore, a separate 10 percent rating is appropriate. This rating does not result in pyramiding, as Diagnostic Code 5305 does not contemplate the same symptoms as the previously discussed Diagnostic Codes associated with the shoulder, such as limited shoulder motion, guarding of arm movements, or deformity of the humerus. However, a higher 30 percent rating is not warranted under Diagnostic Code 5305, as the Veteran's muscle injury is not moderately severe. Although the Veteran reported some difficulty with occupational duties, there is no evidence that the Veteran was unable to keep up with work requirements. There are also no of loss of deep fascia or muscle substance, and strength was at least 4/5 during the appeal period. These findings do not result in an overall disability picture consistent with a higher 30 percent rating. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as limited shoulder mobility and pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, when viewed collectively with the medical evidence of record, the Veteran's account of his symptomatology describes ratings consistent with the assigned ratings. D. Extraschedular Consideration In evaluating the Veteran's claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions in considering if the Veteran is entitled to an extraschedular rating. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's right humerus fracture with cystic changes with the established criteria found in the rating schedule for those disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. That is, the Veteran's pain, limited shoulder mobility, and reduced muscle function are all contemplated by the assigned ratings. The rating schedule allows for higher ratings based on additional symptomatology that the Veteran does not have, such as fibrous union or nonunion of the humerus, or severe muscle injury. The Veteran's condition has not been shown to result in any symptoms that fall so far outside the rating schedule as to render it in adequate. Earlier Effective Date A. Applicable Law Unless specifically provided otherwise in the statute, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim. 38 U.S.C.A. § 5110(a). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year of such date. 38 U.S.C.A. § 5110(b)(2). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2012). With regard to the terms "application" or "claim", the Board notes that once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization by VA or the uniformed services can be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. These provisions apply only when such reports relate to examination or treatment of a disability for which service connection has been previously established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital examination. 38 C.F.R. § 3.157(b)(1) (2012); see also 38 C.F.R. § 3.155(a) (2012). Date of receipt means the date on which a claim, information, or evidence was received at the Department of Veterans Affairs, except as to specific provisions for claims or evidence received in the State Department (§ 3.108), or in the SSA §§ 3.153, 3.201), or Department of Defense as to initial claims filed at or prior to separation. However, the Under Secretary for Benefits may establish, by notice published in the Federal Register, exceptions to this rule, using factors such as postmark or the date the claimant signed the correspondence, when he or she determines that a natural or man-made interference with the normal channels through which the Veterans Benefits Administration ordinarily receives correspondence has resulted in one or more Veterans Benefits Administration offices experiencing extended delays in receipt of claims, information, or evidence from claimants served by the affected office or offices to an extent that, if not addressed, would adversely affect such claimants through no fault of their own. 38 C.F.R. § 3.1(r). Pertinent VA legal criteria also provide: Increases: (1) Except as provided in paragraph (o)(2) of this section and § 3.401(b), date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. (2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o). The law provides one exception to this general rule governing increased rating claims. If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is factually ascertainable that the increase occurred as long as the claim for the increased disability rating was received within one year of the date that the increase occurred. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Harper v. Brown, 10 Vet. App. 125 (1997); see also VAOPGCPREC 12-98 (Sept. 23, 1998). In addition, the Court has indicated that in order for entitlement to an increase in disability compensation to arise, the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan, 10 Vet. App. at 521. B. Evidence and Analysis In a May 1995 rating decision, the Veteran was granted service connection for residuals of a right humerus fracture with cystic changes and assigned a 10 percent disability rating effective April 11, 1994. He did not perfect an appeal with respect to this decision, and it is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2012). On September 27, 2007, the Veteran filed a claim for an increased rating for his shoulder disability. In a February 2010 rating decision, the Veteran was granted a 20 percent disability rating effective September 27, 2007, the date of his claim for an increase. The Board has carefully reviewed the claims file, including all medical records and submissions from the Veteran, and has been unable to identify any correspondence or medical evidence subsequent to the May 1995 rating decision and prior to the Veteran's September 27, 2007 claim which could be interpreted as a formal or informal claim for an increased rating. Review of file does not reveal an intent to apply for an increased rating, nor does it reflect any VA medical findings showing an increase or worsening of the Veteran's service-connected shoulder condition beyond the 10 percent disability rating assigned for that period. The Veteran has not provided any specific arguments or assertions regarding what he believes to be the correct effective date for his disability rating. In his March 2010 NOD, he stated that he felt his initial disability rating was "under-evaluated" by the RO. However, that is not a basis for establishing an earlier effective date for an increased rating. The appropriate remedy included filing an NOD at the time the initial disability rating was assigned, or filing a claim for an increase prior to September 27, 2007. As noted above, the claims file does not reflect any such actions. Therefore, an effective date earlier than September 27, 2007 for a 20 percent rating for residuals of a right humerus fracture with cystic changes is denied. ORDER A rating higher than 20 percent for residuals of a right humerus fracture with cystic changes is denied. A separate 10 percent rating for a right biceps tendon rupture associated with residuals of a right humerus fracture with cystic changes is granted, subject to the laws and regulations governing the award of monetary benefits. An effective date earlier than September 27, 2007 for a 20 percent rating for residuals of a right humerus fracture with cystic changes is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs