Citation Nr: 1331986 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-33 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for right rotator cuff tendinitis with labral injury from January 16, 2006 to March 28, 2007 and from July 1, 2007 to April 7, 2009. 2. Entitlement to a disability rating in excess of 30 percent for right rotator cuff tendinitis with labral injury from August 1, 2009 to May 25, 2011. 3. Entitlement to a disability rating in excess of 30 percent for right rotator cuff tendinitis with labral injury on and after December 1, 2011. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1998 to January 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The RO has granted temporary 100 percent disability ratings for the periods of March 29, 2007 to June 30, 2007, April 8, 2009 to July 31, 2009, and May 26, 2011 to November 30, 2011. As the Veteran is receiving the maximum disability rating during those periods, the Board will not address the issue of entitlement to a higher disability rating regarding those times. In May 2012, the Board remanded the issue of entitlement to service connection for a right ankle disability. In a November 2012 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for right ankle instability/strain with an evaluation of 10 percent effective January 16, 2006. As this represents a total grant of the benefits sought on appeal with respect to this issue, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In addition, the RO granted entitlement to a TDIU from July 28, 2010 to May 26, 2011. However, the assigned 30 percent disability rating for this period is not the maximum rating available for the right shoulder disability. As such, the claim remains in appellate status, and the Board has re-characterized the issues to include staged ratings as shown on the title page. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In the May 2012 decision and remand, the Board also referred the issue of an increased disability rating for neuropathy of the lateral femoral cutaneous nerve in the May 2012 decision. As the record does not show that this issue has been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to a disability rating in excess of 30 percent for right rotator cuff tendinitis with labral injury on and after December 1, 2011 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. From January 16, 2006 to March 28, 2007, the Veteran's right rotator cuff tendinitis with labral injury was characterized by, at worst, external rotation to 60 degrees. 2. From July 1, 2007 to April 7, 2009, the Veteran's right rotator cuff tendinitis with labral injury was characterized by, at worst, external rotation to 45 degrees. 3. From August 1, 2009 to May 25, 2011, the Veteran's right rotator cuff tendinitis with labral injury was characterized by, at worst, external rotation to 60 degrees. 4. In a July 2013 written brief, the Veteran's representative indicated that he wished to withdraw the issue of entitlement to a TDIU. CONCLUSIONS OF LAW 1. From January 16, 2006 to March 28, 2007, the criteria for an initial disability rating in excess of 20 percent for right rotator cuff tendinitis with labral injury have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2013). 2. From July 1, 2007 to April 7, 2009, the criteria for a disability rating of 30 percent for right rotator cuff tendinitis with labral injury have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 3. From August 1, 2009 to May 25, 2011, the criteria for a disability rating in excess of 30 percent for right rotator cuff tendinitis with labral injury have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 4. The criteria for the withdrawal of the issue of entitlement to a TDIU have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1) (2013). The appeals for higher disability ratings arise from a disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under the VCAA in this case. The Veteran's service treatment records, VA treatment records, VA examination reports, and identified private treatment records pertinent to the issues decided herein have been obtained and associated with the claims file. The Veteran was also provided VA examinations in December 2005 and November 2010 in connection with his claims. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The record demonstrates that the VA examiners reviewed the pertinent evidence and the Veteran's lay statements. Additionally, the examinations provided sufficient information to decide the issues on appeal. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds the examinations to be sufficient and adequate for rating purposes. In May 2012, the Board remanded the Veteran's claim for the RO to issue a supplemental statement of the case (SSOC). The record includes a November 2012 SSOC addressing the issues on appeal. Therefore, the Board finds VA substantially complied with the May 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998). There is no indication in the record that any additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45 (2013); see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). The factors involved in evaluating and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint; or pain on movement. 38 C.F.R. § 4.45. The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for that disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's right rotator cuff tendinitis with labral injury (right shoulder disability) is rated under Diagnostic Code 5201 for limitation of motion of the arm. Diagnostic Code 5201 provides a 20 percent rating when motion of the major arm is limited to shoulder level (90 degrees). A 30 percent rating is warranted when motion of the major arm is limited to midway between the side and shoulder level (45 degrees), and a 40 percent rating is provided for when motion of the major arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal ranges of motion of the shoulder are flexion (forward elevation) from zero degrees to 180 degrees, abduction from zero degrees to 180 degrees, external rotation from zero degrees to 90 degrees, and internal rotation from zero degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I (2013). From January 16, 2006 to March 28, 2007 The Veteran is currently assigned a 20 percent rating for his service-connected right shoulder disability from January 16, 2006 to March 28, 2007. In December 2005, the Veteran underwent VA examination in connection with his claim. The Veteran reported constant pain and difficulty with heavy lifting and carrying. He denied having any periods of incapacitation. He stated that he was able to brush his teeth, dress himself, and take a shower. He was also able to cook, vacuum, drive a car, and go grocery shopping. He was able to take out the trash cans, push the lawn mower, and do gardening. The Veteran reported that his dominant hand was the right hand. Examination revealed limited and painful motion. There was no evidence of heat, redness, swelling, effusion, drainage, or abnormal movement. There was evidence of mild instability and mild incoordination. There was no evidence of weakness. Active flexion was to 100 degrees, with pain beginning at 100 degrees, and active abduction was to 90 degrees, with pain beginning at 90 degrees. Active external rotation was to 90 degrees, with pain beginning at 90 degrees, and active internal rotation was to 80 degrees, with pain beginning at 80 degrees. The VA examiner found the Veteran's range of motion was limited by pain, mild instability, and mild incoordination after repetitive use, with pain having the major functional impact. Range of motion was not limited by fatigue, weakness, or lack of endurance after repetitive use. There were no additional limitations of the joint in degrees. The VA examiner diagnosed right shoulder labral tear, status post repair with residual pain, limited range of motion, mild instability, and incoordination. With respect to functional limitations, the VA examiner stated the Veteran should avoid using ladders, overhead reaching, and crawling. X-ray examination showed normal alignment of the acromioclavicular joint and glenohumeral joints. There was no evidence of fracture or other structural abnormalities, and the glenoid fossa and humeral head articular surfaces appeared normal and smooth. The joint spaces were maintained, and the surrounding soft tissues were unremarkable. In his November 2006 Notice of Disagreement, the Veteran stated that his shoulder injury had worsened and was considered permanent. A January 2007 VA orthopedic surgery note shows the Veteran complained of daily shoulder subluxation that occurred with little provocation, such as carrying a 12-pack of soda. The Veteran's biggest reported problem was instability, but he also reported sign pain. He reported that the pain was constant, a nine on a scale out of 10, and kept him from getting to sleep. Forward flexion was to 180 degrees, and external rotation was to 60 degrees. The VA physician's notes regarding internal rotation are not discernible. There was no appreciable anterior subluxation or instability. Pain was in the posterior region of the shoulder with apprehension, and there was no improvement with relocation. A Magnetic Resonance Imaging Scan (MRI) showed posterior labral tear at six to 10 o'clock position, approximating a superior labral anterior and posterior eight lesion. The Veteran also had a low grade infraspinatus undersurface tear and subscapular tendinosis. There was no atrophy or muscle edema. Rotator interval was clear, and biceps tendon was proximally normal. X-ray examination reflected anatomic alignment and no joint space narrowing. There was normal mineralization, and no acute fracture or dislocation. There was a small Hills Sachs deformity. Upon review, the Board finds that a disability rating in excess of 20 percent is not warranted from January 16, 2006 to March 28, 2007. First, the evidence does not show the Veteran's range of motion was limited to midway between the side and shoulder level at any time during the period at issue. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The January 2007 VA record demonstrates that, at worst, external rotation was to 60 degrees. All other recorded measurements reflect motion limited to no less than 80 degrees, and the evidence does not indicate that the Veteran reported such limitation of motion. The Board has considered whether the Veteran's right shoulder disability resulted in a level of functional loss greater than that already contemplated by the assigned rating for the appeal period. DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. With respect to a disability rating in excess of 20 percent, in December 2005 the Veteran's range of motion was limited by pain, mild instability, and mild incoordination after repetitive use, with pain having the major functional impact. However, range of motion was not limited by fatigue, weakness, or lack of endurance after repetitive use, and there were no additional limitations of the joint in degrees. In January 2007, the Veteran's biggest reported problem was instability. On examination, forward flexion was to 180 degrees, and external rotation was to 60 degrees. As such, the Board finds the evidence does not reflect functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 that is not already contemplated by the assigned rating, and a rating greater than 20 percent from January 16, 2006 to March 28, 2007 is not warranted. Additionally, the Board has considered whether a higher rating is warranted under other Diagnostic Codes. However, the treatment records and examinations do not demonstrate ankylosis of the scapulohumeral articulations or impairment of the humerus as applicable to Diagnostic Codes 5200 and 5202. 38 C.F.R. § 4.71a. Because the preponderance of the evidence is against a disability rating in excess of 20 percent, the benefit of the doubt is not applicable for this period. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). From July 1, 2007 to April 7, 2009 From July 1, 2007 to April 7, 2009, the Veteran's right shoulder disability is currently assigned a 20 percent disability rating. In December 2007, the Veteran sought treatment for right shoulder pain which had been triggered three weeks prior. At that time he started having progressive shoulder pain with overhead use. He had full range of motion with triggering of right shoulder pain upon abduction and external rotation greater than 90 degrees. There were no signs of impingement or AC joint tenderness. There was posterior and lateral right shoulder tenderness with palpation. The assessment was shoulder pain which had been asymptomatic after his second surgery up until three weeks prior. On X-ray examination in July 2008, internal and external rotation views of the right shoulder demonstrated no fracture or dislocation. The acromioclavicular joint was normal, as were the soft tissues. The impression was normal right shoulder radiographs. An August 2008 VA treatment record shows the Veteran reported no concerns regarding his right shoulder. On his October 2008 formal appeal, the Veteran reported that due to his shoulder injury, he was unable to raise his arm to change a light bulb and lift and play with his daughter. He stated that he was in constant, severe pain. A December 2008 X-ray examination revealed no fracture, subluxation, or dislocation. There was a small Hills-Sachs deformity at the posterosuperior aspect of the humeral head that was unchanged when compared to the prior studies. The acromioclavicular joint and soft tissues were normal. The impression was no radiographic evidence of acute osseous abnormality. A MRI revealed a severe tear of the posterior-superior glenoid labrum, from eight o'clock to 11 o'clock, and the labrum was macerated at 11 o'clock. A superior glenoid anchor suture was in place, compatible with prior labral debridement and repair. There was no evidence of abnormal bone marrow edema, fractures, or dislocations. The acromioclavicular joint was unremarkable, and the trapezoid and conoid portions of the coracoclavicular ligament and coracoacromial ligament were normal. The supraspinatus muscle and tendon were intact, and the infraspinatous tendon and muscle had normal morphology and signal. There was mild atrophy of the teres minor muscle, with mildly increased signal throughout the teres minor muscle. No mass-like structures were noted in the quadrilateral space. The middle glenohumeral ligament was enlarged, and the intra- and extra-articular portions of the biceps tendon were normal in appearance. The suprascapular and spinoglenoid notches were free of masses and abnormal fluid accumulation. Private treatment records dated in January 2009 show the Veteran had recurrent shoulder instability. A private treatment record dated in March 2009 shows the Veteran complained of severe aching pain and a sensation that his shoulder was loose or slipping out of joint. It was reported that he was extremely limited in his functioning because of his shoulder symptoms. In particular, as a chef he was limited to doing activities with his elbow tucked at his side. He rated the pain as four out of 10 at rest, increasing to eight out of 10 with physical activities, and he was unable to sleep on his shoulder at night. On physical examination, he had overhead elevation of 160 degrees. Passively, he could be pushed to 170 degrees but that was painful for him. Abduction was to 65 degrees, and external rotation was to about 45 degrees. There was severe laxity in the shoulder and a grade two to three positive sulcus sign, which tightened up moderately in external rotation. He had grade two translation in a posterior direction with obvious discomfort both in the lateral decubitus as well as in the supine position. He had laxity in an anterior inferior direction and mild hyperextension at the elbows. The private physician diagnosed posterior instability right shoulder and posterior labral tearing right shoulder. An April 1, 2009 private treatment record shows forward flexion was to 170 degrees, abduction was to 80 degrees, and external rotation was 45 to 50 degrees. Muscle strength was limited by pain, and there was mild hyperextension at the elbows. Upon review of the evidence, the Board finds a 30 percent rating is warranted for the Veteran's right shoulder disability from July 1, 2007 to April 7, 2009. The evidence shows the Veteran had symptoms of progressive shoulder pain with overhead use, and he reported that he was unable to raise his arm to change a light bulb and lift his daughter. The March 2009 private treatment record shows the Veteran complained of severe aching pain, a sensation that his shoulder was loose, and being extremely limited in his functioning. In addition, external rotation was limited to about 45 degrees. Likewise, the April 2009 private treatment record reflects measurements of external rotation from 45 to 50 degrees. Moreover, the evidence shows the Veteran's right shoulder disability limited his usual occupation as a chef. In this respect, the Board is cognizant that the Rating Schedule is meant to reflect the average impairment of earning capacity resulting from service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Therefore, the Board finds a 30 percent disability rating is warranted for the Veteran's right shoulder disability from July 1, 2007 to April 7, 2009. Conversely, a disability rating in excess of 30 percent under Diagnostic Code 5201 is not warranted as the evidence does not show limitation of motion to 25 degrees from the side. See 38 C.F.R. § 4.71a. As described above, treatment records reflect that, at worst, external rotation was limited to 45 degrees. In addition, the Board has considered whether the Veteran's right shoulder disability resulted in a level of functional loss greater than that already contemplated by the assigned rating for the appeal period. DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. The Veteran consistently reported symptoms of instability and pain. However, there is no evidence of reported weakness, excess fatigability, incoordination, or lack of endurance. As such, the Board finds the evidence does not reflect functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 that is not already contemplated by the assigned rating, and a rating greater than 30 percent from July 1, 2007 to April 7, 2009 is not warranted. Additionally, the Board has considered whether a higher rating is warranted under other Diagnostic Codes. However, the treatment records and examinations do not demonstrate unfavorable ankylosis of the scapulohumeral articulations or impairment of the humerus as applicable to Diagnostic Codes 5200 and 5202. 38 C.F.R. § 4.71a. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the criteria for a disability rating of 30 percent, but no more, for right rotator cuff tendinitis with labral injury from July 1, 2007 to April 7, 2009 have been met. However, because the preponderance of the evidence is against a rating in excess of 30 percent, the benefit of the doubt is not applicable for this period. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). From August 1, 2009 to May 25, 2011 From August 1, 2009 to May 25, 2011, the Veteran's right shoulder disability is currently assigned a disability rating of 30 percent. An October 2009 MRI revealed no significant joint effusion, and there was a new focal area of bone marrow edema at the superior lateral aspect of the humeral head. The acromioclavicular joint was unremarkable, and the rotator interval was mildly effaced. In a July 2010 letter, a VA physician, Dr. S. Ly, opined that the Veteran had right shoulder pain which prevented him from working until he could be evaluated by the pain clinic. A July 2010 VA orthopedic surgery note shows the Veteran complained of chronic instability and persistent episodes of brief shoulder pain. The Veteran had daily, partial dislocation. There was bilateral atrophy, with the right greater than the left, forward flexion was limited to 120 to 125 degrees, external abduction was to 85 degrees, and external rotation was limited to 60 degrees. According to the record, a June 2010 MRI revealed partial thickness intrasubstance tear at the junction of the posterior fibers of supraspinatus tendon and anterior fibers of infraspinatus with possible decompression into the intraosseous cyst in the humeral head. The record noted that the findings had progressed since the previous examination and could represent a potential Bennett lesion as a result of multidirectional instability. An October 2010 letter from Dr. J. Crum shows the Veteran had been treated for right shoulder instability since July 2010. The letter was meant to verify the Veteran's temporary disability pending rehabilitation from surgery. In November 2010, the Veteran underwent VA examination in connection with his claim. The Veteran reported that due to his severe shoulder pain, which required surgery, he was told to stop working immediately. He had been unemployed for less than one year. The Veteran reported constant right shoulder pain and weakness. He also reported popping, catching, and giving way, and he denied locking and symptoms of subluxation. The Veteran stated that his activities of daily living were slowed by his shoulder symptoms and that he had missed approximately 88 days of work in the past 12 months due to his shoulder. He reported that his functional impairment involved limitations on lifting, working overhead, pushing, and pulling. Flare-ups of additional limitation were described as hobbled, occurring once that year, lasting four months, which was precipitated by an unknown reason. On examination, there was no shoulder tenderness to light palpation and no swelling. There was no atrophy, and muscle strength was normal. Active shoulder ranges of motion measured flexion to 150 degrees; however, zero to 180 degrees passively was seemingly limited by pain. Abduction was to 180 degrees, external rotation was to 85 degrees, and internal rotation was to 85 degrees. Anterior and posterior stresses suggested no shoulder instability. There was no crepitus and no impingement. Acromioclavicular adduction stress provoked no joint complaints, and there was mild objective evidence of pain at the extremes of right shoulder motion but no spasm or weakness. Repetitive testing provided no added objective loss of joint function due to pain, weakness, fatigue, or incoordination. The VA examiner diagnosed posttraumatic changes right shoulder. With respect to the Veteran's ability to retain employment, the VA examiner found there was only functional impairment of being unable to tolerate working with the arm above the head or doing heavy manual labor that required regular lifting of 40 pounds or more. A December 2010 letter from the Chief Operating Officer at Whisknladel Hospitality indicates the Veteran worked for the company from March 2010 to July 2010 and left voluntarily due to a shoulder injury. A February 2011 VA treatment record reflects the Veteran's complaints of continued pain and instability. He reported that when he slept, he had to have a pillow behind his shoulder or it would dislocate posteriorly. He denied numbness and tingling. An additional February 2011 VA treatment record shows the orthopedic resident found that with the Veteran's degenerative joint disease of the shoulder, the likelihood of him being able to work in a kitchen and lift pots and pans weighing twenty or more pounds on a regular basis was low. A March 2011 VA letter shows the Veteran had right shoulder instability that was limiting his ability to work as a chef. The condition limited his ability to lift heavy weights and produced pain with activity. The diagnosis was right shoulder instability and biceps tendinitis. An additional March 2011 VA treatment record noted that the Veteran was able to perform only light duties until his shoulder instability was corrected. An April 2011 private treatment record shows the Veteran reported constant sharp and burning pain in his shoulder, which bothered him at rest and interfered with his ability to sleep. He was unable to put his hand behind his head, put a coin on a shelf in front of him, or lift an eight-pound container to the level of his shoulder. The Veteran reported that he was able to lift one pound to the level of his shoulder without bending his elbow but was unable to carry twenty pounds at his side. The Veteran was unable to wash the back of his opposite shoulder with his arm or toss a softball under-hand or over-hand twenty yards. A MRI showed persistent irregularity within the posterior labrum and new marrow edema of the posterior glenoid. There was moderate tendinosis of the supraspinatus tendon, and partial intrasubstance tear of the posterior fibers of the supraspinatus. On examination, the Veteran's right shoulder had zero to 160 degrees of elevation with marked guarding. There was definite scapular dysrhythmia and posterior instability. The private physician reported that the Veteran had a significant disability of his shoulder. At a May 2011 hearing with a Decision Review Officer at the RO, the Veteran reported that it was primarily his shoulder that precluded him from working. He stated that he had worked as a chef until about one year prior when the pain from his right shoulder became too much. He was unable to lift plates of food up and put them in the window. He stated that in June or July 2010 he was told to stop working immediately, otherwise he risked ripping his shoulder even more. The Veteran reported that he had gone back to school in January 2011 for retraining in restaurant management. He stated that since his last surgery he had had residual pain, tenderness, and instability, which had gotten worse. The Veteran also asserted that he had trouble cooking at home, take care of his dog and daughter, doing laundry, and vacuuming. Here, the Board finds that a disability rating in excess of 30 percent from August 1, 2009 to May 25, 2011 is not warranted as the evidence does not show limitation of motion to 25 degrees from the side. See 38 C.F.R. § 4.71a. In July 2010, forward flexion was limited to 120 to 125 degrees, external abduction was limited to 85 degrees, and external rotation was limited to 60 degrees. In November 2010, flexion was to 150 degrees, abduction was to 180 degrees, external rotation was to 85 degrees, and internal rotation was to 85 degrees. In April 2011, although the Veteran was unable to put his hand behind his head, put a coin on a shelf in front of him, or lift an eight-pound container to the level of his shoulder, he reported that he was able to lift one pound to the level of his shoulder without bending his elbow. Additionally, the Board has considered whether a higher rating is warranted under other Diagnostic Codes. However, the treatment records and examinations do not demonstrate unfavorable ankylosis of the scapulohumeral articulations or impairment of the humerus as applicable to Diagnostic Codes 5200 and 5202. 38 C.F.R. § 4.71a. With respect to the representative's assertion regarding a separate disability rating for the Veteran's diagnosed biceps tendinitis, tendinitis is rated based on the limitation of motion caused by the tendinitis. 38 C.F.R. § 4.71a, Diagnostic Codes 5024-5201. As such, the Board finds this manifestation of the Veteran's right shoulder disability is already contemplated by the assigned disability rating for this period. The Board has also considered whether the Veteran's right shoulder disability resulted in a level of functional loss greater than that already contemplated by the assigned rating for this period. DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. In November 2010, the Veteran reported that his functional impairment involved limitations on lifting, working overhead, pushing, and pulling, and flare-ups of additional limitation were described as hobbled. However, repetitive testing provided no additional objective loss of joint function due to pain, weakness, fatigue, or incoordination, and the VA examiner found the Veteran's functional impairment consisted of being unable to tolerate working with the arm above the head or doing heavy manual labor that required regular lifting of 40 pounds or more. As such, the Board finds the evidence does not reflect functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 that is not already contemplated by the assigned rating, and a disability rating greater than 30 percent for this period is not warranted. Finally, entitlement to a TDIU is already in effect for the period from July 28, 2010 to May 26, 2010, and therefore, the Board finds the evidence concerning the effects of the Veteran's right shoulder on his occupation are already contemplated for the applicable period. Here, the Board finds the preponderance of the evidence is against a disability rating in excess of 30 percent, and therefore, the benefit of the doubt is not applicable for this period. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Extraschedular Consideration 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, 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 to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 3.321(b)(1) (2013). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. Here, the Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the disability ratings assigned herein inadequate. The Veteran's service-connected right rotator cuff tendinitis with labral injury is evaluated as a musculoskeletal disability, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Thun, 22 Vet. App. at 115; see also 38 C.F.R. § 4.71a, Diagnostic Code 5201. Ratings in excess of that assigned are provided for certain manifestations of a right shoulder disability, but as described above, those symptoms are not present for any period on appeal. Here, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's right shoulder disability during the appeal periods. Therefore, the Veteran's disability picture is contemplated by the Rating Schedule, and no extraschedular referral is required. Withdrawal of TDIU In July 2013, the Veteran's representative stated that the Veteran wished with withdraw his appeal of entitlement to TDIU because he was working. Therefore the appeal as to entitlement to TDIU is dismissed. 38 C.F.R. § 20.204 (2013). ORDER Entitlement to an initial disability rating in excess of 20 percent for right rotator cuff tendinitis with labral injury is denied from January 16, 2006 to March 28, 2007. Entitlement to a disability rating of 30 percent, but no more, for right rotator cuff tendinitis with labral injury is granted from July 1, 2007 to April 7, 2009. Entitlement to a disability rating in excess of 30 percent for right rotator cuff tendinitis with labral injury is denied from August 1, 2009 to May 25, 2011. The appeal as to the issue of entitlement to a TDIU is dismissed. REMAND The issues of entitlement to a rating in excess of 30 percent for right rotation cuff tendonitis with labral injury is remanded to the RO/AMC for additional development. An April 2013 rating decision indicates the Veteran underwent VA examination in February 2012 in connection with his right shoulder disability. In addition, the rating decision shows the RO reviewed VA treatment records dated through April 4, 2013 from the VA Medical Center in San Diego. The record contains VA treatment records dated only through September 2012, and the evidence does not include the February 2012 VA examination report. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the case must be remanded for the RO to obtain and associate any outstanding VA treatment records with the Veteran's claims file or Virtual VA file, to include the VA treatment records outlined above. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record any outstanding VA treatment records, to include all treatment records dated from September 2012 to the present from the VA Medical Center in San Diego, California and all associated outpatient clinics, and the February 2012 examination report. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran should be notified in writing. 2. When the development requested has been completed, re-adjudicate the claim for entitlement to a disability rating in excess of 30 percent for right rotator cuff tendinitis with labral injury on and after December 1, 2011. If any benefit sought on appeal is not granted to the fullest extent, the Veteran and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review. The Veteran 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs