Citation Nr: 1623016 Decision Date: 06/08/16 Archive Date: 06/21/16 DOCKET NO. 10-20 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased rating for service-connected right shoulder disability, currently evaluated as 10 percent disabling prior to November 19, 2012, and as 20 percent disabling as of March 1, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to November 1992. This matter comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In November 2013, the Board remanded the claim for additional development. In March 2014, the Appeals Management Center (AMC) granted the claim, to the extent that it assigned a temporary total (100 percent rating) for the period from November 19, 2012 to February 28, 2013, see 38 C.F.R. § 4.30 (2015), and two separate 20 percent ratings (for limitation of motion, and impairment of the humerus), each as of March 1, 2013. Since these increases did not constitute full grants of the benefits sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Prior to November 10, 2012, the Veteran's right shoulder rotator cuff tears, with degenerative arthritis, are shown to have been productive of pain, and some limitation of motion, but not but not ankylosis of the scapulohumeral articulation, limitation of motion midway between the side and shoulder level, a malunion or recurrent dislocation of the humerus, or a nonunion or dislocation of the clavicle or scapula. 2. As of March 1, 2013, the Veteran's service-connected right shoulder limitation of motion is shown to have been productive of symptoms that include pain, some weakness, and incoordination, with flexion to no less than 90 degrees (with pain at 60 degrees), and abduction to no less than 80 degrees (with pain at 80 degrees), but not a limitation of motion of the arm midway between the side and shoulder level. 3. As of March 1, 2013, the Veteran's service-connected right shoulder impairment of humerus is shown to have been productive of symptoms that include guarding, but not an malunion of the humerus, with marked deformity, or, recurrent dislocation at the scapulohumeral joint, with frequent episodes and guarding of all arm movements. CONCLUSIONS OF LAW 1. Prior to November 10, 2012, the criteria for a rating in excess of 20 percent for service-connected right shoulder rotator cuff tears, with degenerative arthritis, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5200, 5201, 5202, 5203 (2015). 2. As of March 1, 2013, the criteria for a rating in excess of 20 percent for service-connected right shoulder limitation of motion, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5201 (2015). 3. As of March 1, 2013, the criteria for a rating in excess of 20 percent for service-connected right shoulder impairment of humerus, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5202 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he is entitled to an increased rating for his service-connected right shoulder disability. With regard to the history of the disability in issue, the Veteran's service treatment records show that in June 1992, he underwent a right shoulder arthroscopy with debridement of labral tear and subacromial decompression. The operative diagnosis was labral tear, right humeral joint and impingement syndrome, right shoulder. The Veteran's separation examination report, dated in September 1992, notes that his right shoulder had a full range of motion, and that it was without deformity. The associated "report of medical history" noted chronic right shoulder pain. Following service, a March 1993 VA X-ray was unremarkable. See 38 C.F.R. § 4.1 (2015). In April 1994, the RO granted service connection for a right shoulder disability, evaluated as 10 percent disabling. In December 1995, the RO denied a claim for an increased rating. In each case, there was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2014 & Supp. 2015); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011. In February 2008, the Veteran filed his claim for an increased rating. In December 2008, the RO denied the claim. The Veteran appealed. In March 2014, the AMC granted the claim, to the extent that it assigned a temporary total (100 percent rating) for the period from November 19, 2012 to February 28, 2013, see 38 C.F.R. § 4.30, and two separate 20 percent ratings (for limitation of motion, and impairment of the humerus), each as of March 1, 2013. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155 (West 2014 & Supp. 2015); 38 C.F.R. § Part 4 (2015). Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b) . The medical evidence shows that the Veteran is right-handed. See e.g., September 2008 and October 2009 VA examination reports. Therefore, for all diagnostic codes discussed below, the ratings discussed are for the major (right) shoulder. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003, degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. Under 38 C.F.R. § 4.71a, DC 5200, scapulohumeral articulation, ankylosis of: Favorable abduction to 60 degrees, can reach mouth and head, a 30 percent rating is warranted. Under 38 C.F.R. § 4.71a, DC 5201, Arm, limitation of motion, of: At shoulder level, warrants a 20 percent rating. Arm, limitation of motion, of: Midway between the side and shoulder level, warrants a 30 percent rating. Id. Under 38 C.F.R. § 4.71a , DC 5202, Humerus, other impairment of, Malunion of, with moderate deformity, or, with Recurrent dislocation of at scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, warrants a 20 percent rating. Humerus, other impairment of, Malunion of, with marked deformity, or, Recurrent dislocation of at scapulohumeral joint, With frequent episodes and guarding of all arm movements, warrants a 30 percent rating. Id. Under 38 C.F.R. § 4.71a, DC 5203, Clavicle or scapula, impairment of: Dislocation of, or Nonunion of, with loose movement, warrants a 20 percent rating. The standardized description of joint measurements is provided in Plate I under 38 C.F.R. § 4.71. These descriptions indicate that normal forward flexion of the shoulder is from 0 to 180 degrees, normal abduction of the shoulder is from 0 to 180 degrees, normal external rotation is from 0 to 90 degrees, and normal internal rotation is from 0 to 90 degrees. The plain language of 38 C.F.R. § 4.71a confirms that a Veteran is only entitled to a single disability rating under DC 5201 for each arm that suffers from limited motion of the shoulder joint. Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). The diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to "limitation of motion of" the arm. See 38 C.F.R. § 4.71a, DC 5201. The plain meaning of DC 5201, therefore, is that any "limitation of motion of" a single arm at the shoulder joint constitutes a single disability, regardless of the number of planes in which the arm's motion is limited. Yonek, 772 F.3d at 1359. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2015). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2015). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5261 and 5261 where pain is merely evident as it would lead to potentially "absurd results." Id. at 10-11 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Prior to November 19, 2012 A VA examination report, dated in September 2008, shows that the Veteran's right shoulder had flexion to 160 degrees, abduction to 160 degrees, external rotation to 80 degrees, and internal rotation to 80 degrees. The report notes that there was no ankylosis, and that there were no recurrent shoulder dislocations. A VA examination report, dated in October 2009, shows that the Veteran's right shoulder had flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 50 degrees. The report notes that there were no recurrent shoulder dislocations. VA progress notes contain notations of flexion ranging between 150 and 170 degrees, abduction ranging between 150 and 170 degrees, and external rotation ranging between 45 and 90 degrees. There are also several notations that the right shoulder had a FROM (full range of motion) or full PROM (passive range of motion) (specific degrees of motion were not provided). The Board finds that the criteria for an evaluation of 20 percent are not shown to have been met. There is no evidence to show that the Veteran's right shoulder is productive of ankylosis of scapulohumeral articulation, that abduction is limited to 60 degrees, or that it has a limitation of motion to midway between the side and shoulder level. In addition, there is no evidence to show a malunion of the right humerus, recurrent dislocation or malunion of the right scapulohumeral joint, or a nonunion or malunion of the right clavicle or scapula. Accordingly, the criteria for a rating in excess of 10 percent under DC's 5200, 5201, 5202 and 5203 are not shown to have been met for the right shoulder, and a rating in excess of 10 percent is not warranted. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased rating could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995); VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998). The September 2008 VA examination report shows the following: the Veteran complained of progressively worse pain and limitation of function in his shoulder since service. He also complained of deformity, pain that interfered with his sleep, and moderate flare-ups every one to two months, lasting one to two days. He denied giving way, instability, weakness, stiffness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes, effusions, and symptoms of inflammation. He was a mail carrier, but he intended to change to building maintenance because of his shoulder. He was unable to perform overhead work. The Veteran was noted to have partial tears of the supraspinatus tendon complex as well as the subscapularis tendon complex. He also has arthritis of the AC (acromioclavicular) joint. He took ibuprofen 800 milligrams (mg.) bid (twice daily). There were no side effects from current treatment. On examination, there was objective evidence of pain following repetitive motion, but no additional limitations after three repetitions of range of motion. An MRI (magnetic resonance imaging) study, dated in March 2008, was noted to contain an impression noting abnormal appearance of supraspinatus tendon complex with partial tear at its distal insertion, abnormal appearance of subscapularis tendon complex suggesting some retraction with partial tear, and some degenerative hypertrophic change of the AC joint. The Veteran has been employed full-time as a mail carrier for 10 to 20 years, with less than one week of time last during the last 12 months due to medical appointments for his shoulder. The diagnosis was rotator cuff tears, degenerative arthritis, right shoulder. There were significant effects on usual occupation, specifically, decreased manual dexterity, problems with lifting and carrying, difficulty reaching, and pain. Effects on usual daily activities were "none" (shopping, exercise, recreation, travelling, feeding, bathing, dressing, toileting, grooming, and driving), and "moderate" (chores and sports). The October 2009 VA examination report shows the following: the Veteran complained of shoulder pain with all activity. He maintains good strength and good motion, but had pain on motion. He works for the postal service and has transferred to a lower-paying job due to his shoulder. He currently works in maintenance and is required to perform duties such as mopping and sweeping. He transferred work to his left hand. He has multiple shoulder injections. His pain wakes him at night more or less on an hourly basis. He complained of progressively worsening symptoms, and that he frequently dropped things. He used Ibuprofen, 800 mg., and Tramadol, 100mg. prn (as occasion requires) for pain. There were no side effects from treatment. He complained of pain, stiffness, decreased speed of joint motion, and popping, with a history of a shoulder dislocating during an examination, with no other history of dislocation. He denied deformity, giving way, instability, incoordination, locking episodes, effusions, symptoms of inflammation, or flare-ups. On examination, there was objective evidence of pain following repetitive motion, and additional limitations after three repetitions of range of motion; the most important factor was pain. Following repetitive motion, the ranges of motion were unchanged except for internal rotation, which had increased to 90 degrees. There was pain throughout abduction, and at the extremes of all motion. The right upper extremity musculature was well-developed with normal strength. An electromyogram (EMG), apparently performed in about March 2008, was noted to contain an impression of no electrodiagnostic evidence of polyneuropathy, focal mononeuropathy, or a right cervical radiculopathy. The impression states that the Veteran's right upper extremity complaints are likely related to a right shoulder problem. The Veteran has been employed in maintenance at the postal service, where he has worked 10 to 20 years, with no time lost during the past 12 months. The diagnosis was right shoulder tendon tears, degenerative arthritis of AC joint. There were significant effects on usual occupation, specifically, decreased manual dexterity, problems with lifting and carrying, difficulty reaching, and pain. Effects on usual daily activities were "none" (shopping, recreation, travelling, feeding, bathing, dressing, toileting, grooming, and driving), "moderate" (chores, exercise and driving), and "severe" (sports). In an addendum, dated in April 2010, the October 2009 examiner stated that there was increased pain with repetitive motion, but no limitation of motion occurred after at least three repetitions of all shoulder motions, and that the finding of normal motion was confirmed by orthopedic examination on November 3, 2009. VA progress notes show a number of treatments for right shoulder pain, to include injections to the right shoulder. They include findings of 5/5 strength at the cervical spine and T-1 vertebrae, no muscle atrophy, normal size, strength and tone of the muscles, and that he was independent in all ADLs (activities of daily living). Sensation was grossly intact at the bilateral upper extremities, with 2+ reflexes. X-rays showed hypertrophic AC joint with osteolysis. There were chronic cuff changes, and a partial tear with signs and symptoms of impingement. A December 2011 report notes that the Veteran works full-time at the post office doing mechanical and maintenance-type work, involving lifting, pushing, pulling, and cleaning in varied conditions. There was decreased right shoulder strength on flexion, abduction, and external rotation (4/4) with 5/5 strength on extension and internal rotation. See also May and November 2012 reports (noting 4/5 strength on abduction). In summary, the Veteran has been shown to have flexion ranging between 150 and 180 degrees, abduction ranging between 150 and 180 degrees, external rotation ranging between 45 and 90 degrees, and internal rotation ranging between 50 and 80 degrees. Strength has primarily been shown to be 5/5 with some findings of 4/5 in some muscles. Overall, there is insufficient evidence of such symptoms as atrophy, incoordination, or other neurological impairment due to the Veteran's service-connected right shoulder disability, and the Board finds that the record does not show that the Veteran's functional loss due to his service-connected disability impairs him to such a degree that an evaluation in excess of 10 percent is warranted. The Board has also considered the findings of where pain began for all ranges of motion. Powell v. West, 13 Vet. App. 31, 34 (1999). However, even if the ranges of motion were to be considered to be limited to where pain begins, a higher rating would not be warranted. Therefore, an increased evaluation is not warranted for the Veteran's disability on the basis of functional disability, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. As of March 1, 2013 VA reports show that on November 19, 2012, the Veteran underwent a right shoulder arthroscopy, right distal clavicle excision, and right subacromial decompression. The pre- and postoperative diagnoses were right AC joint arthritis. The reports state that upon being taken to the OR (operating room) he was found to have an intact rotator cuff, and that the operation was performed without apparent complication. A December 4, 2012 report notes that he was doing well. A February 13, 2013 report states that he was able to return to work. A temporary total rating is in effect from November 19, 2012 to February 28, 2013. See 38 C.F.R. § 4.30. The increased rating claim is therefore moot during this time period. In March 2014, the Appeals Management Center (AMC) granted the claim, to the extent that it assigned a temporary total (100 percent rating) for the period from November 19, 2012 to February 28, 2013, and a 20 percent rating as of March 1, 2013. The AMC stated that it had ended the Veteran's 10 percent rating for right shoulder rotator cuff tears, degenerative arthritis, as of November 19, 2012, and that it had granted a 20 percent rating for right shoulder limitation of motion as of March 1, 2013 (under Diagnostic Codes 5003-5201) as well as a 20 percent rating for right shoulder impairment of humerus as of March 1, 2013 (under Diagnostic Codes 5003-5202). See 38 C.F.R. § 4.27 (2015) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). This hyphenated diagnostic code may be read to indicate that degenerative arthritis is the service-connected disorder, and it is rated as if the residual conditions are limitation of motion of the arm under DC 5201, and impairment of the humerus under DC 5202. The AMC's March 2014 decision resulted in an increase in the Veteran's combined rating. See Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed.Cir.2007) (holding that provisions of § 3.105(e) do not apply when there is no reduction in the overall disability rating). The AMC's rating decision merely states that the January 2014 VA DBQ included diagnoses that showed impairment of the humerus. Notwithstanding the questionable medical basis for such a conclusion, the AMC did not cite to any legal authority in its decision, and it is arguable as to whether Diagnostic Code 5201, which provides for consideration of limitation of motion, and Diagnostic Code 5202, which provides for consideration of guarding of movement, both contemplate a limitation of movement such that the AMC's assignment of two separate disability ratings under these diagnostic codes evaluated the same manifestation of a single disability, and constituted pyramiding. See 38 C.F.R. § 4.14 (2015); Esteban v. Brown, 6 Vet. App. 259 (1994); VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005). However, the Board will not disturb the AMC's decision. See generally Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence); Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (service connection for a disability is not severed when the diagnostic code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). A VA disability benefits questionnaire (DBQ), dated in January 2014, shows the following: The Veteran's claims file had been reviewed. The Veteran complained of right shoulder pain since his service, with popping and a restricted range of motion. He has had persistent pain since his 2012 operation beginning upon his return to work at the post office. He works full-time in maintenance, and must switch hands with some tasks. He has to stop after hammering after driving eight to ten nails due to pain. He had difficulty shoveling snow the past winter. He periodically drops objects and his grip feels weak. He cannot work overhead. He disagreed with previous diagnoses noting a rotator cuff tear and asserted that the correct diagnosis involved a fracture with arthritis. On examination, the right shoulder had forward flexion to 90 degrees (with pain at 60 degrees), abduction to 80 degrees (with pain at 80 degrees). Following repetitive-use testing with three repetitions, forward flexion, and abduction, were both to 90 degrees. There was no additional limitation of motion following repetitive-use testing. There was functional loss in the form of less movement than normal, weakened movement, excess fatigability, "incoordination, impaired ability to execute skilled movements smoothly," pain on movement, and swelling. There was guarding. Strength on forward flexion and abduction was 4/5. There was no ankylosis of the glenohumeral articulation (shoulder joint). There was no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. There was postoperative degenerative joint disease at the AC joint. There was a history of surgery in 1992 and 2012. The Veteran's ability to work was impaired in that he had limited repetitive use of the right arm, and limited ability to work overhead. The Veteran has had subjective complaints of right arm numbness that have previously been evaluated. An EMG/NCV study was negative for any form of nerve damage which might be otherwise related to the right shoulder condition. There is no evidence of a peripheral nerve condition of the right upper extremity related to the right shoulder condition. The Veteran would have additional limitation of motion when the shoulder is used repeatedly over a period of time manifested primarily by pain and difficulty continuing joint movement. Additional loss of range of motion could not be ascertained since the primary disability is related to pain and loss of repetitive use rather than loss of range of motion. The diagnosis had been changed; it is not entirely clear why the diagnosis was previously listed as right shoulder disability with rotator cuff tears. The Veteran advises against this diagnosis and early rating decisions do not contain it. A May 2008 rating decision referenced March 2008 MRI results, which noted a partial tear of the distal supraspinatus tendon and possibly the subscapularis tendon, and the term "rotator cuff tear" was subsequently referenced in a December 2008 rating decision. A November 2012 surgical note clearly stated "no "rotator cuff noted." The supraspinatus and subscapularis are rotator cuff tendons. Diagnoses included an AC spur and AC joint arthritis. Only some fraying of the rotator cuff was noted. The MRI reading was likely incorrect. The diagnoses are AC sprain requiring surgical correction in service, labral tear requiring surgical correction in service, "tendonitis, rotator cuff," "AC degenerative joint disease, postoperative," and impingement syndrome. Limitation of Motion The AMC has evaluated the Veteran's limitation of motion as 20 percent disabling under DC 5201. The Board finds that a rating in excess of 20 percent is not warranted under DC 5201. A VA progress note, dated in December 2013, notes that forward flexion was to 150 degrees, abduction was to 150 degrees, and external rotation was to 45 degrees. A VA disability benefits questionnaire (DBQ), dated in January 2014, shows that on examination, the right shoulder had forward flexion to 90 degrees (with pain at 60 degrees), abduction to 80 degrees (with pain at 80 degrees). Following repetitive-use testing with three repetitions, forward flexion, and abduction, were both to 90 degrees. The Board finds that the criteria for an evaluation of 20 percent under DC 5201 are not shown to have been met. There is no evidence to show that the Veteran's right shoulder is productive of a limitation of motion to midway between the side and shoulder level. Accordingly, the criteria for a rating in excess of 20 percent under DC 5201 are not shown to have been met for the right shoulder, and a rating in excess of 20 percent is not warranted. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased rating could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. DeLuca; VAOPGCPREC 36-97. The January 2014 VA DBQ shows the following: The Veteran's claims file had been reviewed. The Veteran complained of right shoulder pain since his service, with popping and a restricted range of motion. He has had persistent pain since his 2012 operation beginning upon his return to work at the post office. He works full-time in maintenance, and must switch hands with some tasks. He has to stop after hammering after driving eight to ten nails due to pain. He had difficulty shoveling snow the past winter. He periodically drops objects and his grip feels weak. He cannot work overhead. He disagreed with previous diagnoses noting a rotator cuff tear and asserted that the correct diagnosis involved a fracture with arthritis. There was no additional limitation of motion following repetitive-use testing. There was functional loss in the form of less movement than normal, weakened movement, excess fatigability, "incoordination, impaired ability to execute skilled movements smoothly," pain on movement, and swelling. There was guarding. Strength on forward flexion and abduction was 4/5. There was no ankylosis of the glenohumeral articulation (shoulder joint). There was no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. There was postoperative degenerative joint disease at the AC joint. There was a history of surgery in 1992 and 2012. The Veteran's ability to work was impaired in that he had limited repetitive use of the right arm, and limited ability to work overhead. The Veteran has had subjective complaints of right arm numbness that have previously been evaluated. An EMG/NCV study was negative for any form of nerve damage which might be otherwise related to the right shoulder condition. There is no evidence of a peripheral nerve condition of the right upper extremity related to the right shoulder condition. The Veteran would have additional limitation of motion when the shoulder is used repeatedly over a period of time manifested primarily by pain and difficulty continuing joint movement. Additional loss of range of motion could not be ascertained since the primary disability is related to pain and loss of repetitive use rather than loss of range of motion. The diagnosis had been changed; it is not entirely clear why the diagnosis was previously listed as right shoulder disability with rotator cuff tears. The Veteran advises against this diagnosis and early rating decisions do not contain it. A May 2008 rating decision referenced March 2008 MRI results, which noted a partial tear of the distal supraspinatus tendon and possibly the subscapularis tendon, and the term "rotator cuff tear" was subsequently referenced in a December 2008 rating decision. A November 2012 surgical note clearly stated "no rotator cuff noted." The supraspinatus and subscapularis are rotator cuff tendons. Diagnoses included an AC spur and AC joint arthritis. Only some fraying of the rotator cuff was noted. The MRI reading was likely incorrect. The diagnoses are AC sprain requiring surgical correction in service, labral tear requiring surgical correction in service, "tendonitis, rotator cuff," "AC degenerative joint disease, postoperative," and impingement syndrome. VA progress notes show treatment for complaints of right shoulder pain, to include injections. In summary, the Veteran has been shown to have forward flexion to 90 degrees (with pain at 60 degrees), abduction to 80 degrees (with pain at 80 degrees). While he has symptoms that include pain, weakness, incoordination, and fatigue, he is not shown to have any form of nerve damage or a peripheral nerve condition of the right upper extremity related to his right shoulder condition. Strength has been shown to be no less than 4/5. Overall, there is insufficient evidence of such symptoms as atrophy, incoordination, or other neurological impairment due to the Veteran's service-connected right shoulder disability, and the Board finds that the record does not show that the Veteran's functional loss due to his service-connected disability impairs him to such a degree that an evaluation in excess of 20 percent is warranted. The Board has also considered the findings of where pain began for all ranges of motion. Powell v. West, 13 Vet. App. 31, 34 (1999). However, even if the ranges of motion were to be considered to be limited to where pain begins, a higher rating would not be warranted. Therefore, an increased evaluation is not warranted for the Veteran's disability on the basis of functional disability, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. Impairment of Humerus The AMC has evaluated the Veteran's impairment of the humerus as 20 percent disabling under DC 5202. The Board finds that a rating in excess of 20 percent is not warranted under DC 5202. As previously discussed, the basis for the AMC separate rating under DC 5202 is unclear. To the extent it may have been relevant in their rating decision, there is no basis to find that a rotator cuff tear, or any current diagnosis in the January 2014 VA DBQ, is analogous to impairment of the humerus as set forth at DC 5202. With regard to a rotator cuff tear, the January 2014 VA DBQ shows that the Veteran was found not to have this condition. The examiner gave a thorough discussion of the previous evidence as to a possible rotator cuff tear, and essentially concluded that this was not shown. This opinion is considered highly probative on this issue, as it is shown to have been based on a review of the Veteran's claims file, and as it is accompanied by a sufficient explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In summary, there is no medical evidence of a malunion of the humerus, or to show recurrent dislocation of at scapulohumeral joint. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 20 percent under DC 5202, and that the claim must be denied. Conclusion The Board acknowledges that the Veteran is competent to testify as to symptoms associated with his disability which are non-medical in nature, however, he is not competent to testify as to the severity of the disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). In any event, it is important for the Veteran to understand that the current ratings for this problem are based on his statements, overall. Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2015); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2015); Thun, 22 Vet. App. at 116. In this regard, it is clear that the Veteran is having many problems with this disability that is not in dispute. In fact, it is the basis of the current evaluations for this problem. The schedular evaluations in this case are not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected right shoulder disability are congruent with the disability pictures represented by the disability ratings assigned herein. The criteria for the ratings currently assigned more than reasonably describe the Veteran's disability levels and symptomatology. The Veteran is shown to have limitation of motion, with some weakness, incoordination and fatigue. The schedular criteria considered contemplate a variety of manifestations of impairment. Given the ways in which the rating schedule contemplates impairment for the Veteran's disability, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. In short, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the Veteran does not contend, and the evidence of record does not suggest, that his disability has resulted in any hospitalization other than on one occasion in 2012 (for which he has been granted a temporary total rating). In September 2008, he reported missing less than one week of time last during the last 12 months due to medical appointments for his shoulder. In October 2009, he denied missing any time from work. Although he has asserted that he switched from mail carrier to maintenance worker due to his shoulder symptoms, he has reported working full-time for the postal service during the entire time period on appeal. The Board finds, therefore, that the Veteran's service-connected disability in issue does not result in marked interference with employment or frequent periods of hospitalization, nor are any "other factors" warranting an extraschedular evaluation shown. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. Finally, although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, due to his right shoulder disability. Although he has asserted that he switched from mail carrier to maintenance worker due to his shoulder symptoms, he has reported working full-time for the postal service during the entire time period on appeal. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has not indicated that such records exist, and all pertinent records have been obtained. The Veteran has also been afforded examinations. In November 2013, the Board remanded this claim. The Board directed any outstanding VA treatment records be obtained, and this has been done. The Board further directed that the Veteran be forwarded a VA Form 21-4142 for his execution and that he be informed of the necessity of executing this release, so that his records could be obtained from Dr. B.H. That same month, the Veteran was sent a duty-to-assist letter that was in compliance with the Board's remand. There is no record of a reply. Finally, the Board directed that the Veteran be afforded an examination, and in January 2014, this was done. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Prior to November 10, 2012, a rating in excess of 10 percent for the Veteran's right shoulder rotator cuff tears, with degenerative arthritis, is denied. As of March 1, 2013, a rating in excess of 20 percent for the Veteran's service-connected right shoulder limitation of motion is denied. As of March 1, 2013, a rating in excess of 20 percent for the Veteran's service-connected right shoulder impairment of humerus is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs