Citation Nr: 1333324 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 03-32 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an effective date earlier than November 25, 2009 for the grant of a total disability rating based on individual unemployability (TDIU). 4. Entitlement to an effective date earlier than November 25, 2009 for the establishment of Dependents' Educational Assistance. 5. Entitlement to a rating in excess of 50 percent for a right shoulder disability, to include the issue of an effective date earlier than November 25, 2009 for the grant of the 50 percent rating. 6. Entitlement to a rating in excess of 10 percent for a forehead scar, to include the issue of an effective date earlier than November 25, 2009 for the grant of the compensable rating. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1973 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2009 and March 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of a TDIU was denied by an October 2009 Board decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, in a May 2010 Order, the Court remanded the claim for a TDIU to the Board for further adjudication. The RO granted entitlement to a TDIU in a March 2010 rating decision and the Veteran's appeal of that issue has therefore become moot. That notwithstanding, the Veteran filed a notice of disagreement with the effective date of the grant of a TDIU; therefore, that issue remains on appeal. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The issues of an earlier effective date for TDIU and DEA are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran was exposed to loud noises (acoustic trauma) during service. 2. The Veteran has currently diagnosed sensorineural bilateral hearing loss and tinnitus. 3. Symptoms relating to bilateral hearing loss were not chronic in service and have not been continuous since service separation. 4. Bilateral hearing loss did not manifest in service or to a compensable degree within one year of service separation. 5. Currently diagnosed bilateral hearing loss and tinnitus are not etiologically related to service. 6. As of June 12, 2009, the evidence of record showed severe incomplete paralysis in the Veteran's right shoulder; and as of March 9, 2010, the evidence showed complete paralysis of the Veteran's right shoulder. 7. The Veteran's forehead scar was noted as depressed in March 2010, but an examination did not reveal any other characteristics of disfigurement and the scar was not found to be unstable or painful on examination. 8. It was not factually ascertainable that the Veteran's scar was compensable, prior to his examination in March 2010, nor was a claim received prior to November 2009. CONCLUSIONS OF LAW 1. Criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 2. Criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 3. Criteria for a 70 percent rating, but no higher, for a right shoulder disability were met as of March 9, 2012, and the criteria for a 50 percent rating were met as of June 12, 2009. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.157, 3.400, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 8510 (2013). 4. Criteria for a rating in excess of 10 percent rating for scar on the forehead have not been met. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Codes 7800-7805 (2013). 5. Criteria for an effective date earlier than November 25, 2009, for the award a 10 percent rating for a scar on the forehead have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the claims, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The VCAA duty to notify was satisfied by letters sent to the Veteran in November 2008 and December 2009. The letters fully addressed the notice elements and advised him of the information required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also informed the Veteran of how VA determined disability ratings and effective dates. See Dingess/Hartman, 19 Vet. App. at 490-491. The letters accordingly addressed all notice elements and predated the initial adjudications by the RO in February 2009 and March 2010. Nothing more is required. Additionally, with regard to the claims seeking earlier effective dates, the underlying claims were granted. The Veteran then appealed the downstream issues of the ratings that had been assigned. Under these circumstances, since the original claims were granted, there are no further notice requirements under the aforementioned law with regard to the effective date issues. Neither the Veteran nor his representative has alleged prejudice with respect to notice, and none is found by the Board. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. app. 128 (1998). As such, the duty to notify has been met. Next, VA has a duty to assist the Veteran in the development of his claims. This duty includes assisting him in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records and post-separation VA and private treatment records with the claims file. No outstanding evidence, to include the records from any post-service treatment, has been identified. Additionally, the case was previously remanded by the Board in February 2011 for further evidentiary development of requesting outstanding post-service VA treatment records and to obtain a VA audiological examination for the Veteran's hearing loss and tinnitus disabilities. This was accomplished, and the claims were readjudicated in February 2012 and August 2012 supplemental statements of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Veteran underwent several VA examinations to assist in determining the nature and severity of his disabilities. As discussed in detail below, the June 2009, March 2010, and May 2011 VA examinations are found to be adequate in addressing the necessary questions to be answered regarding the Veteran's disorders. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinions rendered following the examinations were made in connection with review of the claims folder, interview of the Veteran, and physical examination. The opinions provided were factually accurate, fully articulated, and provided sound reasoning for the conclusions. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). To the extent the Veteran disagreed with the adequacy of the January 2009 hearing examination, he was afforded a second hearing examination in May 2011, which is found to be adequate by the Board and the Veteran has not specifically questioned the adequacy of that opinion. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (finding that where a Veteran does not challenge a VA medical expert's competence or qualifications, VA need not affirmatively establish that expert's competency). As such, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F3d. 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Laws and Regulations Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has been diagnosed with bilateral hearing loss and with tinnitus. The condition of sensorineural bilateral hearing loss (organic disease of the nervous system) is a chronic condition listed under 38 C.F.R. § 3.303(b); as such, 38 C.F.R. § 3.303(b) is applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In contrast, tinnitus is not a chronic condition under 38 C.F.R. § 3.303(b) and that issue will be adjudicated using the general principles of service connection. Service connection may also be established with certain chronic diseases, including bilateral hearing loss, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran contends that his current bilateral hearing loss and tinnitus are associated with noise exposure he experienced during service while performing his duties as a military security policeman including his training with various types of weapons. The Veteran also asserted that he was struck on the head while in basic training in 1973, and has suggested that since that time he has experienced hearing loss and recurrent tinnitus in his left ear. He indicated that he noticed hearing loss in his right ear within the last few years. He has denied occupational and recreational noise exposure since service. A hearing loss disorder for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC (controlled speech discrimination) test are less than 94 percent. 38 C.F.R. § 3.385 (2012). See also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). Audiometric testing confirms that the Veteran has bilateral sensorineural hearing loss that meets the standards for VA disability compensation under 38 C.F.R. § 3.385. Further, based on the Veteran's assertions in his October 2008 claim and during his May 2011 VA examination, the Board finds that the Veteran has a current disability of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (stating that a lay person is capable of reporting symptoms of tinnitus). Audiometric testing at the VA examination in May 2011, revealed (with pure tone thresholds in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 45 25 10 20 40 LEFT 20 20 10 25 50 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 in the left ear. The auditory thresholds were 40 decibels or greater in two out of the five frequencies in the right ear and one out of the five frequencies in the left ear. On the question of in-service injury, disease, or event, the Board finds that the Veteran was exposed to loud noise during service. The Veteran has credibly reported that his military occupational specialty was as a security policeman. He reported that he was exposed to a variety of weapons and did not always wear ear protection. The Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that exposure to hazardous noise for veterans with a duty MOS of "security forces" (i.e., military police) as "highly probable." Accordingly, the Board finds that the Veteran was exposed to acoustic trauma during service. Addressing first the presumptive regulations, the Board finds that bilateral hearing loss was not diagnosed either during service or within a year of service. See Walker, 708 F.3d 1331 (sensorineural bilateral hearing loss is a chronic condition listed under 38 C.F.R. § 3.303(b); as such, 38 C.F.R. § 3.303(b) is applicable). In this regard, service treatment records are absent for complaints, diagnosis, or treatment for hearing loss. Further, the May 1975 service separation examination revealed normal hearing bilaterally for the 500 Hertz to 4000 Hertz frequencies. Specifically, audiometric testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 0 0 LEFT 10 0 0 0 0 The Veteran also specifically denied any hearing loss on a medical history survey completed in conjunction with his separation physical. Following service, the first suggesting of hearing loss did not appear for many years after service. As will be discussed in detail below, the evidence shows the first assessment of bilateral hearing loss was in 2004, approximately 29 years after service separation. For these reasons, the Board finds that bilateral hearing loss did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for hearing loss are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. The evidence also fails to show that symptoms of the Veteran's hearing loss have been chronic since service. See 38 C.F.R. § 3.309(a). Here, the only evidence suggesting chronicity was the Veteran's assertion at his January 2009 VA examination that he had been struck on the left side of his head with a baton in service and that he had experienced hearing loss in his left ear ever since. To this end, lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As noted, the Veteran did on one occasion assert that his hearing loss in his left ear began during service when he was struck in the head and had continued ever since. However, service treatment records directly disprove such an allegation. First, while the Veteran now, in conjunction with a claim for disability benefits asserts that he had experienced hearing loss in his left ear ever since service, on a medical history survey completed in conjunction with his separation physical, the Veteran specifically denied having ever experienced any hearing loss. This statement was made contemporaneously with service, and therefore is felt to have greater reliability than a statement rendered years later in support of a claim for disability benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). It is also noted that the Veteran did not simply deny all medical conditions on this survey, but it is clear that he reviewed the document noting several conditions. This suggests that the Veteran actually did not perceive hearing loss in his left ear at that time as he has later suggested. Additionally, audiometric testing conducted at the separation physical confirmed that the Veteran did not have hearing loss in either ear at that time. The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). This also serves to disprove any contention voiced by the Veteran that he had continuously experienced hearing loss since service. The Veteran has also not been consistent regarding the onset of his hearing loss. For example, while he stated that hearing loss had been present in his left ear since service, at his second VA audiological examination the Veteran indicated that his chief complaint was hearing loss since approximately 2004. Given the inconsistencies of the Veteran's testimony, the Board finds that it is not sufficiently credible, particularly in light of the contemporaneous medical evidence refuting his allegation, to establish continuous symptoms since service. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed other claims for service connection, but did not mention hearing loss at any time prior to his October 2008 claim. For example, in July 1975, one month after service separation, the Veteran filed claims for service connection for a right hand disorder, tonsillitis, head injury, skin rash, ulcers, blurred vision, nervous condition, shoulder condition, and hemoptysis. The Veteran filed numerous additional claims prior to 2008 without ever mentioning hearing loss. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for his bilateral hearing loss, when viewed in the context of his action regarding his other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain hearing loss in service and a lack of hearing loss symptomatology at the time he filed the other claims. Nevertheless, while presumptive service connection is not warranted, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. As discussed, the Veteran has been diagnosed with both bilateral hearing loss and with tinnitus. It has also been acknowledged that the Veteran had military noise exposure. However, a hearing loss disability and military noise exposure alone is insufficient to establish that service connection is warranted. Rather, it must be shown that the noise exposure caused the hearing loss and/or tinnitus. Here, the Board further finds that the weight of the evidence demonstrates the Veteran's currently diagnosed bilateral hearing loss and tinnitus are not etiologically related to service, specifically the in-service noise exposure. In this regard, the Veteran was afforded a VA audiological examination in January 2009. The examiner indicated that the claims file was reviewed. The VA examiner specifically noted that the Veteran's service treatment records were reviewed but did not include his separation examination. The examiner also noted that she had not reviewed private, VA, or other medical records in the claims file. Additionally, the examiner indicated that the results of an audiogram were not reported due to poor reliability. She noted that the Veteran's speech reception thresholds were in the normal range bilaterally while puretone averages reflected moderate hearing loss in the right ear and moderately severe hearing loss in the left ear. She concluded that the puretone thresholds did not appear consistent with the Veteran's demonstrated communication ability. The examiner indicated that she was unable to provide a medical opinion as to the etiology of the Veteran's hearing loss because the reliability of the examination results was not sufficient to form an opinion. However, as discussed above, the separation physical was clearly contained in the claims file and therefore the Board concluded that the January 2009 VA examination was inadequate for rating purposes and remanded the claim to obtain a second examination. The Veteran was afforded the second VA audiological examination in May 2011. The VA examiner reviewed the claims file, to include the Veteran's service separation examination, and interviewed the Veteran. After conducting audiological testing, the examiner diagnosed sensorineural bilateral hearing loss and tinnitus. However, the VA examiner ultimately opined that the Veteran's bilateral hearing loss and tinnitus were less likely as not caused by or a result of military service. In support of her opinion, the VA examiner reasoned that during the January 2009 VA audiological examination, which yielded unreliable results, the Veteran reported onset of left ear hearing loss and tinnitus after being hit on the head in service, and onset of right ear hearing loss 1 to 2 years prior to the January 2009 VA examination. However, at the 2011 examination, the Veteran reported onset of bilateral hearing loss as 2004 and the onset of his tinnitus as 2002. The VA examiner based her opinion on the inconsistencies in reported onset, and the showing that the Veteran's hearing was normal at separation in 1975 in concluding that his current hearing loss and tinnitus were more likely a post-service occurrence. For these reasons, the Board finds that currently diagnosed hearing loss and tinnitus are not related to service. In making this determination, the Board has also considered the Veteran's statements asserting a nexus between his hearing loss and tinnitus and service. A lay person is competent to report what comes to him through his senses, but generally lacks the medical training and expertise to provide a complex medical opinion. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, a lay person is competent to report symptoms such as diminished hearing acuity or tinnitus. Of note, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). However, determining that hearing loss exists for VA purposes is a medically complex question, which the Veteran lacks the medical qualifications and expertise to address. In this case, the Veteran did report that his hearing loss in his left ear and his tinnitus began in service when he was struck on the left side of his head with a baton. However, this statement is wholly undermined by the service treatment records. As noted above, the Veteran specifically denied hearing loss at separation, refuting his allegation rendered approximately three decades later that hearing loss had been present ever since service. His allegation is also undermined by the fact that he filed numerous claims for service connection with VA in the years and decades following service, without ever mentioning any hearing problems. With regard to his claims that tinnitus began in service and continued ever since; this too is refuted by the medical evidence of record. Of particular note, on his medical history survey completed in conjunction with his separation physical, the Veteran specifically noted that he had ear/nose/throat problems. From the notes made by the medical professional, this was in reference to having occasional tonsillitis. As such, the Veteran clearly discussed his ear/nose/throat system with the medical officer, but did not mention any tinnitus. Likewise, on several VA examinations in the years following service (such as in September 1975 and October 1981), the Veteran's ears were found to be normal. Moreover, at the Veteran's VA examination in May 2011, he reported that his tinnitus had onset in approximately 2002. As such, the Veteran's statements as to the onset of his hearing loss and tinnitus have been sufficiently inconsistent that they are not considered to be credible to support a grant of service connection for either tinnitus or bilateral hearing loss; particularly in light of the fact that the medical evidence of record also weighs against service connection. As noted, the Board finds that the Veteran does not have the education, training, or experience to provide a competent opinion as to the etiology of his disorders. For this reason, a medical opinion of record was obtained. The Board finds the May 2011 VA medical opinion, which was based on a review of accurate facts in the claims file, history by the Veteran, and clinical findings, to be the most probative evidence of record. Additionally, this opinion has not been questioned or undermined by any additional medical evidence. For the reasons stated above, the most competent and probative evidence addressing whether bilateral hearing loss and tinnitus are etiologically related to service, is the May 2011 VA opinion. Therefore, the Board finds that a preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus, and the claims must be denied. 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Rating and Effective Date for Right Shoulder Disability In November 2009, the Veteran filed a claim seeking a rating in excess of 40 percent for his right shoulder disability. In a March 2010 rating decision, the RO granted a 50 percent evaluation effective November 25, 2009, the date the Veteran's claim was received, under 38 C.F.R. § 4.71a Diagnostic Code 5200 pertaining to ankylosis of the scapulohumeral articulation. In March 2010, the Veteran filed a preprinted notice of disagreement in which he stated that if an increased rating was granted, he wished to file for a still higher rating and an earlier effective date. As an initial point, the evidence establishes that the Veteran is right handed. It is noted that at a June 2007 VA examination, the Veteran was noted as being left handed, but a review of the Veteran's service treatment records confirms that he is in fact right side dominant. Under Diagnostic Code 5200, the highest rating available is 50 percent for unfavorable, abduction limited to 25 degrees from side. As the 50 percent rating is the highest possible under Diagnostic Code 5200, there is no basis for a schedular rating in excess of 50 percent under this Diagnostic Code. The Veteran's shoulder had originally been rated, by analogy, to Diagnostic Code 8599-8510 for paralysis of the upper radicular peripheral nerves due to the Veteran's right scapular serratus anterior palsy. Under Diagnostic Code 8510, the highest available rating for the major joint is 70 percent which is warranted for complete paralysis resulting in all shoulder and elbow movements lost or severely affected, with hand and wrist movements not affected. A 50 percent rating is assigned for severe incomplete paralysis of the upper radicular group. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. As will be discussed, the Veteran has undergone two VA examinations of his shoulder in June 2009 and then in March 2010. VA treatment records were reviewed, but did not discuss any treatment for the Veteran's right shoulder disability. Having reviewed the evidence of record, the Board concludes that the 50 percent rating for the Veteran's right shoulder disability should be effective from the date of the June 2009 VA examination, and a 70 percent rating is granted from the date of the March 2010 examination. Such a conclusion is consistent with the evidence of record, as the Veteran specifically acknowledged at the March 2010 VA examination that his shoulder disability had worsened since his previous examination. Turning to the evidence of record, at the June 2009 VA examination, the examiner noted tenderness to palpation of the posterior scapular region of the right shoulder. The examiner also noted that the medication prescribed to address right shoulder pain caused the Veteran to be lightheaded, making it dangerous for him to operate motor vehicles or mechanical equipment as a profession. The Veteran reported pain 3/10 on average that would flare to 9/10 with any movement. This caused weakness and stiffness. The examiner also noted instability and giving way. The Veteran was prevented from doing any lifting because of the shoulder. Range of motion testing revealed that flexion and abduction were from 0 to 60 degrees, limited by pain and stiffness. The Veteran was unable to do any repetitive testing due to pain. The range of motion of right shoulder external rotation and internal rotation could not be tested as the Veteran was unable to raise his right shoulder to 90 degrees abduction. The VA examiner diagnosed the Veteran with right shoulder partial ankylosis due to winged scapula, causing complete wasting of the right serratus anterior muscle, causing eventual right shoulder stabilization surgery. In a subsequent March 2010 VA examination report, the Veteran stated that the pain in his right shoulder had progressively worsened since his last examination. Further, he reported deformity of the right shoulder, giving way, instability, and stiffness. Upon physical examination, the VA examiner noted deformity, tenderness, pain at rest, abnormal motion, and guarding of movement. There was evidence of wasting of the posterior shoulder girdle muscles. Range of motion for the right shoulder showed flexion from 0 to 15 degrees, internal rotation of 0 to 10 degrees, external rotation of 0 degrees, and abduction of 0 to 15 degrees. The VA examiner noted that repetitive range of motion testing was not performed due to pain. The examiner further noted that the internal and external rotation testing could only be performed with assistance from the examiner by holding the Veteran's arm up to 15 degrees. The VA examiner diagnosed "complete frozen shoulder" secondary to right scapular instability, status post serratus anterior palsy. The examiner added that the Veteran would be unable to sustain either physical or sedentary employment on account of his right shoulder disability. Upon review of the evidence of record, both lay and medical, the Board finds that the Veteran's right shoulder disability currently most closely approximates a 70 percent rating under Diagnostic Code 8510. Although the record does not contain specific evidence revealing complete paralysis of the upper right extremity peripheral nerve, the March 2010 VA examination found that Veteran's right shoulder disability movements were "severely affected" due to his serratus anterior palsy and complete frozen shoulder as contemplated by a 70 percent disability rating under Diagnostic Code 8510. The Board further finds that the highest rating under Diagnostic Code is 70 percent; therefore, a higher evaluation under this code is not possible. The Board has also considered other Diagnostic Codes applicable to the Veteran's case which would warrant a higher rating in excess of 70 percent, to include Diagnostic Code 5202 which assigns an 80 percent rating for the loss of the head of the humerus (flail shoulder) of the major side. Here, the evidence does not show that the Veteran has a flail joint, quite the opposite, as the examiner described the Veteran as having a completely frozen shoulder, with very limited mobility. As such, an 80 percent rating under Diagnostic Code 5202 is not warranted. The issue then becomes whether the 70 percent rating should become effective earlier than March 9, 2010. The Board concludes that it should not. As noted, under Diagnostic Code 5200, the highest rating available is 50 percent for unfavorable, abduction limited to 25 degrees from side. At the June 2009 VA examination, the Veteran was able to flex and abduct his right shoulder to 60 degrees. However, the examiner observed that the Veteran was unable to do any repetitive testing due to pain. The Board acknowledges that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, it clearly does, as the Veteran was unable to do any repetitive motion. As such, his range of motion was effectively limited to significantly less than 60 degrees of flexion or abduction. Therefore, the Board believes that a 50 percent rating was warranted under Diagnostic Code 5201 as of June 2009. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The issue then becomes whether a rating in excess of 50 percent is warranted earlier than March 2010. As noted, a 50 percent rating is the highest schedular rating available under 5201, however, consideration has also been given to Diagnostic Code 8510, which provides a higher 70 percent rating when there is complete paralysis of the major side resulting in all shoulder and elbow movements lost or severely affected, with hand and wrist movements not affected. A 50 percent rating is assigned for severe incomplete paralysis of the upper radicular group. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Prior to the March 2010 VA examination, the evidence of record did not show complete paralysis. At the June 2009 examination, the Veteran had some motion possible, although significantly limited by pain. The Veteran was still able to complete light year work. Pain was also noted on average to be only 3/10. The Board does not wish to minimize the impact of the Veteran's pain, as it clearly provides significant functional limitation as discussed. Rather, the Board is attempting to show that the Veteran's right shoulder disability increased in severity between his June 2009 VA examination and his March 2010 VA examination. Continuing with the 2009 examination, the Veteran was diagnosed with partial ankylosis of the right shoulder. Given that some use of the right arm appears to have still have been possible, the Board concludes that a 50 percent rating would be most appropriate rating under 8510, as such a rating is intended to compensate severe incomplete paralysis. A 70 percent rating would require complete paralysis which is not shown as evidenced by the shoulder motion which remained possible. The conclusion that a higher rating is warranted following the March 2010 VA examination is consistent with the evidence of record, as the Veteran specifically acknowledged at his March 2010 VA examination that his disability had progressively worsened since the June 2009 examination, and he was first diagnosed with a complete frozen shoulder at the 2010 examination. As such, it would appear appropriate that the assigned disability rating increased accordingly between the time of the two VA examinations. Turing to the effective date for the Veteran's rating, the provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). Here, the Veteran's claim seeking an increased rating for his right shoulder disability was received in November 2009. As noted, the VA examination in June 2009 showed a factually ascertainable worsening of the Veteran's right shoulder disability. As such, a 50 percent rating should be assigned as of June 12, 2009. It is also noted that once a formal claim for pension or compensation has been allowed a receipt of a report of VA examination will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157. Here, the Veteran underwent a VA examination of his shoulder in June 2009, and the examination report could therefore serve as an informal claim for benefits. However, because an effective date is the later of the date of entitlement and the date of claim, even concluding that the June 2009 VA examination served as an informal claim would not require the assignment of an effective date earlier than June 12, 2009, as there is no medical evidence of record between June 12, 2008 and June 12, 2009 which would support a 50 percent rating. Rating and Effective Date for Forehead Scar The Veteran was initially granted service connection and a noncompensable rating for a forehead scar in a June 1975 rating decision. Thereafter, he was granted a 10 percent disability rating, effective November 25, 2009 under Diagnostic Code 7805-7800. The rating criteria direct that scars may be rated based on limitation of function of an affected part. See Diagnostic Code 7805. Here, the Veteran's scar is located on the forehead. Under Diagnostic Code 7800, ratings for scars that impact the head, face, or neck are based on the number of characteristics of disfigurement present. The eight characteristics of disfigurement, as listed in Note 1, include the following: (1) scar five or more inches (13 or more centimeters) in length; (2) scar at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper- pigmented in an area exceeding six square inches (39 square centimeters); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and (8) skin indurate and inflexible in an area exceeding six square inches (39 square centimeters). Diagnostic Code 7800 further provides that a scar with one characteristic of disfigurement of the head, face, or neck is rated 10 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, is rated 30 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, is rated 50 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, is rated 80 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7800. Alternatively, 10 percent ratings may be assigned for a scar that is unstable or painful on examination. See 38 C.F.R. § 4.118, Diagnostic Codes 7804. VA treatment records from April 2008 to March 2010 reveal no treatment or evaluation the Veteran's forehead scar. In a March 2010 VA examination report, the examiner noted that the Veteran had cut his forehead while in service. Upon examination, the Veteran's scar measured 0.2 centimeters wide by 2.3 centimeters long, and was located on his face just lateral to the left eye. There was no adherence to underlying tissue, no skin texture abnormalities, no underlying soft tissue missing in an area exceeding six square inches, no disfigurement, no tenderness to palpation, and the scar was not hypo or hyper pigmented. Limitation of motion or loss of function was absent. The VA examiner did find that the scar was depressed. Upon review of the evidence of record, the Board finds that a higher rating in excess of 10 percent for the Veteran's forehead scar is not warranted. The evidence of record demonstrates that the Veteran met only one of the eight characteristics of disfigurement. Specifically, the March 2010 VA examiner found that the scar was depressed. A rating higher than 10 percent is not warranted under Diagnostic Code 7800 because the Veteran's facial scar is not shown to meet any of other seven characteristics of disfigurement. The evidence of record does not show that the Veteran's facial scar caused disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. The Veteran's facial scar was not five or more inches in length, was not at least one-quarter inch wide at the widest point, it was not adherent to underlying tissue, nor hypo or hyper pigmented, underlying soft tissue was not missing, and the skin was not indurated and inflexible in an area exceeding six square inches. Inasmuch as the Veteran did not meet any of the other seven characteristics of disfigurement for his facial scar, the Board finds that the criteria for a rating higher than 10 percent is not met and a rating higher than 10 percent is thus not warranted. Further, Diagnostic Codes 7801 and 7802 are not applicable as they apply to scars other than on the head, face, or neck. The facial scar was not found to be either unstable or painful on examination, precluding a higher rating under Diagnostic Codes 7804. The Veteran has also challenged the November 25, 2009 effective date of the 10 percent rating currently assigned for the forehead scar. As noted in the previous section, the general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). In the present case, the Board finds no earlier document of record that may be interpreted as an informal claim for increase prior to November 25, 2009. Additionally, while scars of the various extremities were discussed at a VA examination in June 2009, there was no discussion of the Veteran's forehead scar and therefore this examination does not serve as an informal claim. See 38 C.F.R. § 3.157. Further, the evidence of record, to include a June 2009 VA examination report, does not demonstrate that it was factually ascertainable that an increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. Specifically, in the June 2009 VA examination report, the examiner noted no scars on the head, face, or neck. The first evidence that the Veteran's scar was depressed was in the March 2010 VA examination, after the Veteran filed his November 2009 claim for an increased rating. As such, the Board finds that an earlier effective date for the 10 percent disability rating for the Veteran's forehead scar is not warranted. Extraschedular Consideration The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, the medical evidence fails to show anything unique or unusual about the Veteran's forehead scar that would render the schedular criteria inadequate. The scar is generally asymptomatic and has not been shown to be painful. The Diagnostic Codes provided for scar ratings contemplate a wide number of potential impairments caused by scars, and the Veteran has not identified any impairment from his forehead scar that was not contemplated. As such, the rating criteria reasonably describe the claimant's disability level and symptomatology and a referral for extraschedular consideration is not warranted. With regard to the Veteran's right shoulder disability, there is no question that the disability is significant, but he was assigned ratings which reasonably contemplated all of his complained of symptoms, including most significantly pain and limitation of motion. The ratings assigned took into account neurologic impairment as well. Essentially, the Veteran's current rating, and the assigned Diagnostic Codes, direct VA to consider all of the Veteran's right shoulder symptomatology and then to determine whether the entirety of the symptomatology has resulted in complete paralysis of the right shoulder or severe incomplete paralysis. As such, the assigned schedular ratings reasonably contemplate the Veteran's symptoms and referral for extraschedular consideration is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is no longer employed. He has not, however, alleged, nor has the evidence of record independently suggested, that he is unemployable solely on account of either his forehead scar or right shoulder disability. Thus, the Board finds that Rice is inapplicable. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. A rating of 70 percent, but no higher, for a right shoulder disability is granted effective March 9, 2010, subject to the laws and regulations governing the award of monetary benefits. A rating of 50 percent, but no higher, for a right shoulder disability is granted effective June 12, 2009, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 10 percent rating for scar on the forehead is denied. An effective date earlier than November 25, 2009, for the award of a 10 percent rating for a scar on the forehead, is denied. REMAND As an initial point, the Veteran has been granted a TDIU as of November 25, 2009, but he believes that his TDIU should have become effective earlier than that date. The Veteran's claim for TDIU that is currently on appeal was first filed July 30, 2001, and denied by an April 2003 rating decision. The Veteran appealed to the Board, and the Board denied the Veteran's TDIU claim in October 2009 decision, which the Veteran filed a timely appeal to the Court. Subsequently, in May 2010, the Court vacated the Board's October 2009 decision and remanded the matter for further adjudication consistent with a joint motion for remand (JMR). The JMR suggested that the Board should consider referring the Veteran's claim for extraschedular consideration. During the course of the appeal at the Court, the RO granted a TDIU in a March 2010 rating decision. The RO assigned an effective date of November 25, 2009, purportedly the date the Veteran's claim for a TDIU was received. The Veteran filed a notice of disagreement with the effective date of the grant of a TDIU. However, as noted, the Court vacated the October 2009 Board decision, meaning that the Veteran's original claim for a TDIU, filed in July 2001, remained on appeal. This is not to say that a TDIU was warranted prior to November 25, 2009, but rather that consideration should be given to that question. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A threshold requirement, however, for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In the present case, prior to November 25, 2009, service connection had been granted for right scapular instability, status post serratus palsy, rated as 40 percent disabling prior to June 12, 2009 and 50 percent from then until November 25, 2009; post-operative flexor tendon transplant of the right thumb, rated as 20 percent disabling; and scar of the forehead, rated as 0 percent disabling. The combined disability rating was 50 percent prior to June 12, 2009 and 60 percent from then until November 25, 2009. 38 C.F.R. § 4.25, Table I, Combined Ratings Table. Thus, although he had at least one disability rated at 40 percent disabling, his combined rating was less than 70 percent, and he did not meet the schedular rating criteria for a TDIU under 38 C.F.R. § 4.16(a). Where a Veteran is unemployable by reason of his or her service-connected disabilities, but fails to meet the percentage standards set forth in § 4.16(a), a TDIU may be assigned pursuant to 38 C.F.R. § 4.16(b). However, the Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance, and must first refer any claim to the Director, Compensation and Pension Service for consideration of TDIU on an extraschedular basis. This should be done. For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) the Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3501, 3510 (West 2002); 38 C.F.R. §§ 3.807(a), 21.3021. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C.A. § 5113. As such, the establishment of the effective date for assignment of DEA inextricably intertwined with the effective date assigned for a TDIU. As such, this issue is also remanded. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran/his representative to submit a statement reflecting the Veteran's employment history, together with his educational and vocational attainment. 2. Next, consistent with the provisions of 38 C.F.R. § 4.16(b), the RO should submit the Veteran's claim to the Director of Compensation and Pension Service for consideration of entitlement to TDIU benefits on an extra-schedular basis prior to November 25, 2009. 3. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs