Citation Nr: 1340709 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 09-35 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for the service-connected lumbar strain. 2. Entitlement to an increased rating in excess of 20 percent for the service-connected left shoulder status post rotator cuff repair x2. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from February 1987 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The September 2008 rating decision continued the Veteran's 20 percent disability rating for his service-connected lumbar strain and his 20 percent disability left shoulder status post rotator cuff repair x2. During the pendency of the appeal, a January 2011 rating decision continued the Veteran's 20 percent disability ratings. On the Veteran's September 2009 VA-9 Substantive Appeal he requested a Board hearing at the RO. However, in November 2009 he elected to have a decision review officer (DRO) hearing at the RO instead of a Board hearing. In March 2010 the Veteran testified before a DRO at the RO. Thus, the Board finds that his request for a Board hearing has been withdrawn and his request for a hearing has been satisfied. In a January 2011 rating decision the RO continued the Veteran's 10 percent disability rating for his service-connected tinnitus and a noncompensable rating for his service-connected hypertension. While the Veteran filed a notice of disagreement he did not file a substantive appeal after the July 2012 statement of the case (SOC) and November 2012 SOC. Thus, the Board finds that the issues of entitlement to increased ratings for the service-connected tinnitus and hypertension are not before the Board. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals additional VA treatment records dated to March 2013, which were considered by the agency of original jurisdiction (AOJ) in the March 2013 supplemental statement of the case (SSOC) and by the Board. It also includes the October 2013 brief by the Veteran's representative. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's lumbar strain is not manifested by limitation of flexion to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, incapacitating episodes, or neurologic/bladder impairment. 2. The Veteran's left shoulder status post rotator cuff repair x2, minor shoulder, is not manifested by motion limited to 25 degrees from the side. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent for lumbar strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2013). 2. The criteria for an increased rating of 20 percent for left shoulder status post rotator cuff repair x2 have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a July 2008 letter, sent prior to the initial unfavorable decision issued in September 2008, and December 2008, January 2009, and August 2010 letters advised the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the July 2008, December 2008, January 2009, and August 2010 letters advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra. While the December 2008, January 2009, and August 2010 letters were issued after the initial September 2008 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the December 2008 and January 2009 letters were issued, the Veteran's claims were readjudicated in the July 2009 statement of the case (SOC) and after the August 2010 letter, the Veteran's claims were readjudicated by January 2011, May 2012, and March 2013 supplemental statements of the case (SSOC). Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA examinations in January 2009 and August 2010 in conjunction with his increased rating claims on appeal. The Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected lumbar strain and left shoulder disability as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claims and no further examinations are necessary. The Board notes that in March 2013 the Veteran was notified by letter that he was going to be scheduled for new VA examinations for his lumbar spine and left shoulder disabilities. The Veteran was then scheduled for VA examinations in March 2013 but he failed to appear. In the March 2013 SSOC the RO stated that the Veteran's claims for increased ratings were denied because of 38 C.F.R. § 3.655, failure to report to the scheduled examination, without good cause, shall result in denial of the claim. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. There is no indication in the Veteran's claims file or in the October 2013 brief of why the Veteran failed to appear for his March 2013 VA examinations; furthermore, the letters were not returned to the RO as undeliverable and the address listed on the letter is the address of record. However, the Board finds that based upon the evidence of record, including VA treatment records and the adequate January 2009 and August 2010 VA examinations, the Board can proceed with the adjudication of the Veteran's claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2010 hearing, the DRO enumerated the issues on appeal. Also, information was solicited regarding the Veteran's current symptomatology. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, after the hearing the Veteran was afforded a VA examination. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claims, herein decided. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims herein decided based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart, supra. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. See generally 38 U.S.C.A. § 5110(b)(2). In this regard, the Board notes that an March 1985 rating decision granted service connection for lumbar strain with an evaluation of 20 percent effective March 1, 2008, and service connection for left shoulder status post rotator cuff tear repair x2 with an evaluation of 20 percent effective March 1, 2008. The Veteran did not enter a notice of disagreement with respect to the initially assigned ratings but on June 27, 2008, he filed a claim for an increased ratings because his disabilities had "gotten worse since [he] was last rated." In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Lumbar Strain The September 2008 rating decision continued the Veteran 20 percent disability rating for his service-connected lumbar strain. The Veteran's lumbar strain is evaluated as 20 percent disabling, effective March 1, 2008, under Diagnostic Code 5237, which pertains to lumbar strain. The Veteran asserts that he is entitled to an increased rating in excess of 20 percent; however, the Board finds that the preponderance of the evidence is against an increased rating. Under the General Rating formula for Diseases and Injuries of the Spine, ratings are assigned as follows: a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; a 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. In May 2008 the Veteran's private doctor stated that the Veteran had back pain that was constant and progressively getting worse. It interfered with his activities of daily living. His symptoms increased with activity and were relieved by rest. He had a sharp, stabbing pain in his lower back that increased with activity. His pain was a 6 out of 10 at rest and an 8 out of 10 with activity. He had pain with movement/ when he walked. His range of motion was diminished and he had pain throughout. He was diagnosed with scoliosis and osteoarthritis. In June 2008 the Veteran's private physician stated that the Veteran was medically unfit to work or monetarily able to sustain himself; he further stated that the Veteran's back pain prevented him from standing and bending. The Veteran was afforded a VA examination in January 2009 and reported constant back pain that was an 8 out of 10 and it was elicited by physical activity; relieved by rest and Vicodin. He reported stiffness but denied numbness, loss of bladder control, and loss of bowel control. It had not resulted in any incapacitation. He reported functional impairment with difficulty with bending and lifting. On examination there was no evidence of radiating pain on movement. Muscle spasm was absent but there was tenderness with palpitation over the lumbar spinous processes and paraspinal muscles. There was negative straight leg raising test on both sides and his spine was not ankylosed. His range of motion was 40 degrees for flexion, 15 degrees for extension, 15 degrees for right and left lateral flexion, and 15 degrees for right rotation and left rotation; pain was at the end point for all ranges of motion. After repetitive use the joint function of his spine was additionally limited by pain and lack of endurance but it was not limited by fatigue, weakness, or incoordination nor was there any additional limitations by degrees. There were no signs of lumbar interverterbral disc syndrome with chronic and permanent nerve root involvement. Neurological examination of the lower extremities revealed motor function and sensory function within normal limits. X-ray studies revealed spondylosis, hyperlordosis, and facet joint arthritis. It was noted that the Veteran's conditions had minimal effect on his activities of daily living but did have severe effect on his usual occupation because he had to stop working as a warehouse laborer. At the Veteran's August 2010 VA examination he discussed both his cervical spine and lumbar spine. It was noted that he was diagnosed with degenerative disc disease at C5-C6 and lumbar spine degenerative disc disease. He had an epidural steroid injection to the lumbar spine. He was able to walk 200 yards in 10 minutes. He denied symptoms of stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, dislocation, deformity, tenderness, drainage, effusion, or subluxation. He also denied any paresthesia or loss of bowel or bladder control. The pain was described as moderate to severe and constant; it was brought on by physical activities and improved by steroid injections. The pain resulted in functional impairment in the ability to perform pushing, pulling, lifting, and overhead reaching. He denied any hospitalizations or surgeries; he also denied any periods of incapacitation in the past 12 months. On examination his range of motion was to 50 degrees for flexion, 15 degrees for extension, 20 degrees for bilateral lateral flexion, and 25 degrees for bilateral rotation; pain was at the endpoint for all ranges of motion, repetitive use was possible, and there was no additional limitation of degrees for each movement. Range of motion was additionally limited by pain and lack of endurance; there were no limitations of fatigue, weakness, or incoordination after repetitive use. There was no evidence of intervertebral disc syndrome. Straight leg raising and Lasegue signs were both negative and his neurologic examination was normal. In January 2011 it was stated that the Veteran was not working because of his shoulder and back pain. In April 2012 the Veteran underwent an MRI study and it revealed no evidence of fracture or dislocation involving the lumbar spine; it was noted that his low back pain was resistant to injections. Also in April 2012 it was stated that the Veteran had injections every two months for pain management and that his pain was a 10 out of 10 when sitting and a 2 out of 10 when standing. It was noted that his reflexes were within normal limits and his sensation was preserved. After a careful review of the evidence, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for lumbar strain. In order for the Veteran to be granted a higher rating under the General Rating Formula, forward flexion of the thoracolumbar spine must be limited to 30 degrees or less or there must be favorable ankylosis of the entire thoracolumbar spine. However, the Veteran's range of motion for flexion was 40 degrees in January 2009 and 50 degrees in August 2010. In addition, there is no evidence that the Veteran had additional limitations of motion after repetitive use or during flare-ups during the pendency of the appeal. It was specifically stated at the January 2009 and August 2010 VA examinations that pain was at the end point of his ranges of motion and his range of motion was not changed after repetitive use. Thus, he does not meet the criteria for an increased rating. With regard to giving proper consideration to the effects of pain and other symptoms in assigning a disability rating per DeLuca and Mitchell, supra, the reports from the examinations and treatment records document consideration of these principles and there is no indication that increased compensation would be warranted under these principles as such factors do not result in additional functional loss that that resulted in a higher limitation of motion. While there is evidence of pain in the Veteran's VA and private treatment records, it was stated at the January 2009 and August 2010 VA examinations that he was not limited by incoordination, weakness, or fatigability. It was also noted that there was no evidence of tenderness, guarding, or muscle spasm. Thus, the Board finds that the currently-assigned 20 percent rating adequately contemplates any disability due to pain on limitation of motion. Moreover, since the Veteran had range of motion for flexion anywhere from 40 degrees to 50 degrees he, by definition, does not suffer from lumbar ankylosis. Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007) (ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). Thus, the Board finds that there is no evidence in the Veteran's VA treatment records, private treatment records, and VA examinations that his lumbar strain meets the criteria for the next higher disability rating. The Board also finds that a higher rating is not warranted under the criteria for intervertebral disc syndrome as there has been no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during a 12 month period during the appeal period. 38 C.F.R. § 4.71a Diagnostic Code 5243. There is no indication in the Veteran's VA and private treatment records or on VA examination that the Veteran has been diagnosed with intervertebral disc syndrome. Moreover, the evidence does not show, and he has not contended, that he has experienced any incapacitating episodes during the appeal period; at the January 2009 and August 2010 VA examinations it was stated that he reported no incapacitating episodes in the past 12 months. Furthermore, none of his treatment records demonstrate incapacitating episodes requiring physician prescribed bed rest. Accordingly, the Veteran does not warrant a higher rating under any Diagnostic Code for rating back disorders. Essentially, a higher rating is not in order because there is no evidence that range of motion for forward flexion of the thoracolumbar spine is limited to 30 degrees or less, that the back disability involves favorable ankylosis of the entire thoracolumbar spine, or that the condition results in incapacitating episodes. With respect to neurologic abnormalities pursuant to Note (1) of the General Rating Formula, the Board finds that there are no neurological impairments associated with the Veteran's back disability. Specifically, the record, to include the Veteran's statements, is entirely negative for any bowel or bladder impairment. Specifically, it was stated in January 2009 and August 2010 that he denied any bowel or bladder problems due to his lumbar strain. Furthermore, the Veteran's neurological testing at the January 2009 and August 2010 VA examinations was negative; as were his straight leg raising tests and Lasegue signs. Therefore, the Board finds that separate ratings for neurological impairment are not warranted. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his lumbar strain. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected lumbar strain with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. The Board finds that the Veteran's 20 percent rating contemplates his functional limitations caused by his lumbar strain, to include limitation of motion with pain. Moreover, it was stated that at the January 2009 and August 2010 VA examinations that he had no hospitalizations for his lumbar strain. There are no additional symptoms of his lumbar strain that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In the instant case, the March 2010 rating decision awarded a TDIU rating as of June 28, 2008, and a December 2011 rating decision discontinued the Veteran's TDIU award effective April 9, 2009, because the Veteran met the criteria for a 100 percent evaluation. The RO noted that the effective date was June 28, 2008, because it was the day following his last day of employment; according to the Veteran's VA Form 21-8940 his last day working full time was June 27, 2008. The Board notes that the Veteran filed his claim for an increased rating on June 27, 2008, the last day of his employment. Consequently, the Board finds that a TDIU claim does need not be further addressed since he was granted a TDIU rating a day after his claim for an increased rating and a date after his last day of employment. In reaching this decision, the Board has considered the benefit of the doubt doctrine. To the extent that the Board has denied higher or separate ratings for the Veteran's lumbar strain, the Board finds that the preponderance of the evidence is against such claims. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Left Shoulder Status Post Rotator Cuff Repair x2 The September 2008 rating decision continued the Veteran's 20 percent disability rating for his service-connected left shoulder status post rotator cuff repair x2. The Veteran is currently rated a 20 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board notes that a careful review of the Veteran's medical files revealed that the Veteran's left shoulder is his minor shoulder. Under 38 C.F.R. § 4.71a, Diagnostic Code 5201, limitation of an arm at the shoulder level warrants a 20 evaluation whether it is the major or minor extremity. When motion is limited to midway between the side and shoulder level, a 30 percent evaluation is warranted for the major extremity and 20 percent for the minor extremity. When motion is limited to 25 degrees from the side, a 40 percent evaluation is warranted for the major extremity and 30 percent for the minor extremity. Normal flexion (forward elevation of the arm) and normal abduction (movement of the arm away from the side) of the shoulder are to 180 degrees. Normal internal rotation and external rotations of the shoulder are to 90 degrees. 38 C.F.R. § 4.71, Plate 1 (2013). In May 2008 the Veteran's private doctor stated that the Veteran had shoulder pain that was constant and progressively getting worse; he had numbness and tingling down his left arm. It interfered with his activities of daily living. His symptoms increased with activity and were relieved by rest. His pain was a 6 out of 10 at rest and an 8 out of 10 with activity. In June 2008 the Veteran's private physician stated that the Veteran was medically unfit to work or monetarily sustain himself; he further stated that the physical therapy failed to produce results and he continued to experience shoulder pain. The Veteran was afforded a VA examination in January 2009; he reported a squeezing, aching, and sharp pain. The pain was noted to be an 8 out of 10 and was elicited by physical activity and also came spontaneously. He denied symptoms of heat, redness, giving way, locking, fatigability, dislocation, deformity, tenderness, drainage, effusion, or subluxation. He could function without medication. He had difficulty with overhead lifting. On examination he had tenderness and guarding of movement but he did not have any signs of edema, effusion, weakness, redness, heat, or subluxation. His range of motion was 60 degrees for flexion, 60 degrees for abduction, 30 degrees for external rotation, and 90 degrees for internal rotation; pain occurred and the end point for all ranges of motion. It was noted that joint function was additionally limited after repetitive use by pain and lack of endurance; pain was the major functional impact. It was not additionally limited by fatigue, weakness, or incoordination; there was no additional limitation in degrees. At the Veteran's August 2010 VA examination he reported that the pain was associated with weakness, stiffness, swelling, and lack of endurance. He denied symptoms of heat, redness, giving way, locking, fatigability, dislocation, deformity, tenderness, drainage, effusion, or subluxation. The pain was constant, at an intensity of 6 out of 10, and was brought on by physical activity; it was improved by rest and steroid injections. The pain resulted in functional impairment in the ability to perform lifting, pushing pilling, and carrying activities; it also resulted in limitation of motion. He denied any periods of incapacitation in the past 12 months. On examination his range of motion was 80 degrees for flexion, 75 degrees for abduction, 75 degrees for external rotation, and 75 degrees for internal rotation; pain occurred at all end points for range of motion, repetitive use was possible, and there were no additional limitations of degrees for each movement. The Veteran's range of motion was additionally limited by pain, lack of endurance, and incoordination but it was not limited by fatigue or weakness. Neurological examination was normal. In January 2011 it was stated that the Veteran was not working because of his shoulder and back pain. In February 2012 he described the pain as 6 out of 10. In order for the Veteran to warrant an increased rating there needs to be evidence of motion limited to 25 degrees from the side. However, in January 2009 his range of motion was 60 degrees for flexion and 60 degrees for abduction and in August 2010 it was 80 degrees for flexion and 75 degrees for abduction. In addition, there is no evidence that the Veteran had additional limitations of motion after repetitive use or during flare-ups during the pendency of the appeal. Thus, the Board finds that the Veteran does not warrant an increased rating. The Board notes that Diagnostic Codes 5200, 5202,and 5203 also pertain to the shoulder. However, there is no evidence of intermediate ankylosis, between favorable and unfavorable of the scapulohumeral articulation (Diagnostic Code 5200) or fibrous union of the humerus (Diagnostic Code 5202); the maximum scheduler rating under Diagnostic Code 5203 is 20 percent. Thus, the Board finds that he does not warrant an increased rating under any other diagnostic criteria. With regard to giving proper consideration to the effects of pain and other symptoms in assigning a disability rating per DeLuca and Mitchell, supra, the reports from the examinations and treatment records document consideration of these principles and there is no indication that increased compensation would be warranted under these principles as such factors do not result in additional functional loss that resulted in a higher limitation of motion. While there is evidence of pain in the Veteran's VA and private treatment records and at the Veteran's January 2009 and August 2010 VA examinations repetitive use was possible and there were no additional limitations of degrees for each movement. The Veteran's range of motion was not limited by fatigue or weakness and while it was additionally limited by pain, lack of endurance, and incoordination there is no evidence that the Veteran's range of motion was diminished because of it. Thus, the Board finds that the currently-assigned 20 percent rating contemplates any disability due to pain on limitation of motion. The Board notes that prior to this appeal, a March 2008 rating decision granted the Veteran service connection for a shoulder of the left scar and assigned an initial 10 percent disability rating effective March 1, 2008, under 38 C.F.R. § 4.118, Diagnostic Code 7804; Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. An October 2008 rating decision continued the Veteran's 10 percent disability rating. The Veteran has not appealed either of those decisions nor has he asserted during the pendency of this appeal that he warrants an increased rating for his scar of the left shoulder. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his left shoulder status post rotator cuff repair x2. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration in consideration with the criteria discussed above. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected left shoulder status post rotator cuff repair x2 with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. The Board finds that the Veteran's 20 percent rating contemplates his functional limitations caused by his left shoulder status post rotator cuff repair x2, to include limitation of motion with pain. There are no additional symptoms of his left shoulder status post rotator cuff repair x2 that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). As noted above, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In the instant case, the March 2010 rating decision awarded a TDIU rating as of June 28, 2008, and a December 2011 rating decision discontinued the Veteran's TDIU award effective April 9, 2009, because the Veteran met the criteria for a 100 percent evaluation. The RO noted that the effective date was June 28, 2008, because it was the day following his last day of employment; according to the Veteran's VA Form 21-8940 his last day working full time was June 27, 2008. The Board notes that the Veteran filed his claim for an increased rating on June 27, 2008, the last day of his employment. Consequently, the Board finds that a TDIU claim does need not be further addressed since he was granted a TDIU rating a day after his claim for an increased rating and a date after his last day of employment. In reaching this decision, the Board has considered the benefit of the doubt doctrine. To the extent that the Board has denied higher rating service-connected left shoulder status post rotator cuff repair x2, the Board finds that the preponderance of the evidence is against such claims. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. (CONTINUED ON NEXT PAGE) ORDER An increased rating in excess of 20 percent for the service-connected lumbar strain is denied. An increased rating in excess of 20 percent for the service-connected left shoulder status post rotator cuff repair x2 is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs