Citation Nr: 1753633 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 10-35 792 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to a higher initial disability rating in excess of 20 percent for the service-connected right shoulder disability from November 1, 2008. 2. Entitlement to a higher initial disability rating in excess of 20 percent for the service-connected left shoulder disability from November 1, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Choi, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1964 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the RO in Winston-Salem, North Carolina. Jurisdiction over this claim is currently with the RO in Roanoke, Virginia. The December 2008 rating decision, in pertinent part, granted service connection for degenerative joint disease (DJD) in the right and left shoulders and assigned initial disability ratings of 10 percent from November 1, 2008 (the date after service separation) for the right and left shoulder disabilities. In October 2016, the Veteran testified at a Board Videoconference hearing in Roanoke, Virginia, before the undersigned Veterans Law Judge sitting in Washington, D.C. A transcript of the hearing has been associated with the electronic file. In a March 2017 decision, the Board bifurcated issues of higher initial ratings for the right and left shoulder disabilities, granted a higher 20 percent initial rating for both the right and left shoulder disabilities, and remanded the issues of higher initial ratings for the right and left shoulder disabilities in excess of 20 percent to the RO for further development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed below, the Board finds that the March 2017 Board remand directives were complied with, and the matter has been properly returned to the Board for appellate consideration. The Board has reviewed the electronic file on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. For the entire initial rating period on appeal from November 1, 2008, the service-connected right shoulder disability has been manifested by painful limitation of motion of the right arm at shoulder level, without ankylosis, impairment of the humerus, or impairment of the clavicle or scapula. 2. For the entire initial rating period on appeal from November 1, 2008, the service-connected right shoulder disability has not more nearly approximated painful limitation of motion of the right arm to 45 degrees abduction. 3. For the entire initial rating period on appeal from November 1, 2008, the service-connected left shoulder disability has been manifested by painful limitation of motion of the left arm at shoulder level, without ankylosis, impairment of the humerus, or impairment of the clavicle or scapula. 4. For the entire initial rating period on appeal from November 1, 2008, the service-connected left shoulder disability has not more nearly approximated painful limitation of motion of the left arm to 25 degrees abduction. CONCLUSIONS OF LAW 1. For the entire initial rating period on appeal from November 1, 2008, the criteria for a higher initial disability rating in excess of 20 percent for the right shoulder disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2017). 2. For the entire initial rating period on appeal from November 1, 2008, the criteria for a higher initial disability rating in excess of 20 percent for the left shoulder disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b) (2017). Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the Agency of Original Jurisdiction's initial unfavorable decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran is challenging the initial disability ratings assigned following the grant of service connection for the right and left shoulder disabilities. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that regarding the downstream element of the initial rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C. § 5103(a) notice is no longer required); 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of a Notice of Disagreement). With respect to the issues of a higher initial disability rating for the right and left shoulder disabilities, no additional notice is required regarding the downstream elements of the service connection claims; thus, the Board concludes that VA satisfied its duty to notify the Veteran. VA has also satisfied its duty to assist the Veteran in the development of the issues by fulfilling its duty to seek and assist in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file includes the military personnel records, service treatment records, VA treatment records, VA examination reports, and lay statements. As discussed above, the Board's March 2017 decision remanded the matter to the RO for further development. The Board's March 2017 remand directives instructed the RO to obtain updated VA treatment records and to schedule another VA examination. Upon remand, updated VA treatment records were associated with the record in April 2017 and August 2017, and the Veteran was provided with a VA examination in May 2017, the report for which has been associated with the claims file. Throughout the course of this appeal, the Veteran was afforded VA examinations in September 2008 and May 2017, the examination reports for which are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The September 2008 and May 2017 VA examination reports reflect that the VA examiners personally interviewed and examined the Veteran, including eliciting a history, conducted an in-person examination, and provided detailed findings supported by clinical testing. Although the Veteran was also provided with a VA examination in February 2011, the examination report reflects findings that are uncharacteristically uniform for careful measure of motion, so are suggestive of a default reporting rather than careful measures, as discussed in the Board's March 2017 decision. As such, the Board finds the February 2011 VA examination report to be of no probative value and does not rely on it in the instant decision below. Based on the foregoing, the Board finds that all relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issue on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 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 (2017). Pyramiding, the rating 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 (2017). 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, the Board will evaluate the issue for a higher rating of the original award. In such cases, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Id. In this case, the RO has already assigned staged ratings for the left knee disability and the back disability, as discussed below. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. See Mitchell, 25 Vet. App. 32. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Pursuant to the Board's March 2017 decision, the Veteran is in receipt of an initial 20 percent disability rating for both the right and left shoulder disabilities under Diagnostic Code (DC) 5201 for the entire initial rating period on appeal from November 1, 2008. Disabilities of the shoulders are rated under DC 5200 through DC 5203 of 38 C.F.R. § 4.71a. These Diagnostic Codes provide for different ratings in certain instances depending on whether the shoulder involved is the major or minor joint. A May 2017 VA examination report reflects that the Veteran is right hand dominant. The Veteran contends generally that higher initial disability ratings in excess of 20 percent are warranted for the right and left shoulder disabilities. In an August 2010 VA Form 9, the Veteran states that the shoulder disabilities have caused chronic pain and limited mobility such that he is unable to raise either arm to the sides of the body, or above the head. During the October 2016 Board hearing, the Veteran testified to symptoms of grinding, joint locking, limitation of motion, weakened movement, and guarded actions as a result of the shoulder disabilities. In a September 2017 Statement, the Veteran asserts experiencing intense shoulder pain on a daily basis that has resulted in loss of strength, flexibility, and range of motion in both shoulders that make routine tasks difficult to complete. Under DC 5201, limitation of motion of an arm at the shoulder level warrants a 20 percent rating whether it is the major or minor extremity. When motion is limited to midway between the side and shoulder level, a 30 percent rating 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 rating is warranted for the major extremity and 30 percent for the minor extremity. 38 C.F.R. § 4.71a. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2017). In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-316 (2003). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Initial Rating for the Right Shoulder Disability As discussed above, the Veteran is in receipt of an initial 20 percent rating for the right (dominant) shoulder disability under DC 5201. After a review of all the evidence of record, lay and medical, the Board finds that for the entire initial rating period from November 1, 2008, the right shoulder disability has been manifested by painful limitation of motion of the right arm at shoulder level, without ankylosis, impairment of the humerus, or impairment of the clavicle or scapula, and has not more nearly approximated painful limitation of motion of the right arm to 45 degrees abduction. As such, the Board finds that an initial rating for the right shoulder disability in excess of 20 percent is not warranted for the entire initial rating period from November 1, 2008. As discussed in the Board's March 2017 decision, service treatment records and a September 2008 VA examination report show that range of motion in the right shoulder, at most, was limited to 90 degrees of flexion and 75 degrees abduction, including limitation of motion due to pain. During the October 2016 Board videoconference hearing, the Veteran testified that severity of pain and the limitation of motion in the right shoulder had been gradually increasing over time, that any motion in the right shoulder must be accomplished in a low and methodical manner, and demonstrated that he was only able to lift the right arm to approximately 45 degrees without pain. On the other hand, post-service VA treatment records reflect that the right shoulder disability has not more nearly approximated limited motion in the right arm to midway between side and shoulder level (45 degrees abduction), including limited motion due to symptoms such as pain and stiffness. A November 2011 VA treatment record notes the medical examiner observed the Veteran had pain when raising the arms above the shoulder line. A March 2014 VA treatment record shows the that pain in the shoulders was noted with abduction, but the Veteran denied problems with activities of daily living or on functional assessment. A May 2015 VA treatment record reflects the Veteran underwent an admission assessment and denied joint pain, cramping, weakness, deformities, stiffness, swelling, redness, or any history of fractures. The Veteran was able to move all extremities and range of motion in all extremities were found to be normal. The May 2015 VA provider also noted negative findings for joint deformities, edema, tenderness, cyanosis, and clubbing. VA treatment records from June 2015, April 2016, and January 2017 show the Veteran denied experiencing any pain. In May 2017, VA provided another VA examination to help assess the severity of the right and left shoulder disabilities. During the May 2017 VA examination, the Veteran reported the shoulder disabilities had progressively worsened, with symptoms such as no range of motion in the shoulders and constant pain. The Veteran also reported episodes of flare-ups several times a month where the shoulders lock up and the bones grind against one another, and being unable to raise his arms or lift anything heavy. Upon examination, range of motion in the right shoulder was to 120 degrees flexion and 110 degrees abduction, with pain noted on flexion and abduction that caused functional loss and prevented overhead work. The May 2017 VA examination report shows negative findings for objective evidence of pain with weight bearing, crepitus, localized tenderness, ankylosis, and atrophy, and the VA examiner assessed no additional loss of function due to pain, fatigue, weakness, lack of endurance, or incoordination following repetitive use testing. Upon conclusion of the May 2017 VA examination, the VA examiner assessed the functional impact of the right shoulder disability is that the Veteran is unable to do overhead work. A July 2017 VA treatment record shows the Veteran complained of chronic bilateral shoulder pain that was described as an aching pain that was a 5/10 on the pain scale. The July 2017 VA treatment record reflects the Veteran reported being able to perform assigned task at work and activities of daily living at home with the reported shoulder pain. To the extent that the Veteran has painful motion of the right shoulder, stiffness, and the shoulder locking up during episodes of flare-ups, such symptoms were specifically considered in the grant of the initial 20 percent disability rating in the Board's March 2017 decision. 38 C.F.R. § 4.59; DeLuca at 206-07. Even if the Veteran experiences pain throughout the range of motion of the right shoulder, symptoms of pain alone do not warrant an initial disability rating in excess of 20 percent. See Mitchell at 38-43 (rejecting veteran's contention that pain, even if experienced throughout the range of motion on examination, warrants a higher rating under the diagnostic codes providing ratings for limitation of motion). Rather, it is the functional limitation, i.e., the additional limitation of motion, caused by pain or the other DeLuca factors, that must be considered in determining whether a higher rating is warranted. See Mitchell at 38-43 (explaining that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded). In this case, both the September 2008 and May 2017 VA examiners made specific findings of no right shoulder ankylosis, and noted that no change in range of motion was anticipated due to pain, weakness, fatigability, or incoordination with repetitive use of the right shoulder. While the Veteran testified during the October 2016 Board videoconference hearing that he is only able to lift the right arm to 45 degrees abduction without pain, and while the Veteran asserted during the May 2017 VA examination to having no range of motion in the shoulders, the evidence of record demonstrates that functional limitation of the right shoulder only impedes overhead work and that the right shoulder is not ankylosed. See November 2011 VA treatment record; May 2015 VA treatment record (full range of motion found in the extremities); May 2017 VA examination report. Further, the Veteran's contentions that the shoulder disabilities cause constant pain and interfere with his ability to perform activities of daily living are outweighed by the Veteran's contrary statements made for treatment purposes during the course of the appeal, and statements made for treatment purposes are particularly trustworthy because an individual has an incentive to report accurately the symptoms, to include their frequency, in order to receive proper care. See, e.g., March 2014 VA treatment record (denying problems with activities of daily living); June 2015, April 2016, and January 2017 VA treatment records (denying symptoms of pain); July 2017 VA treatment record (endorsing ability to perform activities of daily living with shoulder pain). A higher initial rating in excess of 20 percent for the right shoulder disability is also not available under DC 5200, 5202, or 5203, as the evidence of record shows negative findings of ankylosis, impairment of the humerus, and impairment of the clavicle or scapula in the right shoulder. See May 2017 VA examination report. For the foregoing reasons, the Board finds that the preponderance of the evidence weighs against the assignment of a higher initial rating in excess of 20 percent for the right shoulder disability for the entire initial rating period from November 1, 2008. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a. Initial Rating for the Left Shoulder Disability Pursuant to the Board's March 2017 decision, the Veteran is in receipt of an initial 20 percent rating under DC 5201 for the left shoulder disability from November 1, 2008. After review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period on appeal from November 1, 2008, the left shoulder disability has been manifested by painful limitation of motion of the left arm at shoulder level, without ankylosis, impairment of the humerus, or impairment of the clavicle or scapula, and has not more nearly approximated painful limitation of motion of the left arm to 25 degrees abduction. As such, the Board finds that an initial rating for the left shoulder disability in excess of 20 percent is not warranted for the entire initial rating period from November 1, 2008. As discussed in the Board's March 2017 decision, service treatment records and the September 2008 VA examination report reflect that range of motion in the left shoulder, at most, was limited to 90 degrees flexion and 75 degrees abduction, including limited motion due to pain. Post-service VA treatment records also reflect that the left shoulder disability has not more nearly approximated limited motion in the left arm to 25 degrees from the side (25 degrees abduction), including limited motion due to symptoms such as pain and stiffness. As detailed above, the November 2011 VA treatment record notes the medical examiner observed the Veteran had pain when raising the arms above the shoulder line. Post-service VA treatment records from March 2014, May 2015, June 2015, April 2016, January 2017, and July 2017 reflect the Veteran had occasional pain in the shoulders with abduction, but that such pain did not hinder his ability to perform activities of daily living; the May 2015 VA treatment record reflects the Veteran had full range of motion in all extremities. The May 2017 VA examination report reflects range of motion in the left shoulder was to 110 degrees flexion and 90 degrees abduction, with pain noted on abduction and external rotation that caused functional loss and prevented overhead work. The May 2017 VA examination report shows negative findings for objective evidence of pain with weight bearing, crepitus, localized tenderness, ankylosis, and atrophy, and the VA examiner assessed no additional loss of function due to pain, fatigue, weakness, lack of endurance, or incoordination following repetitive use testing. Upon conclusion of the May 2017 VA examination, the VA examiner assessed the functional impact of the left shoulder disability is that the Veteran is unable to do overhead work. Further, as discussed above, while the Veteran testified during the October 2016 Board hearing of only being able to lift the left arm to 30 degrees abduction without pain, and while the Veteran asserted during the May 2017 VA examination to having no range of motion in the shoulders, the weight of the lay and medical evidence of record demonstrates that functional limitation of the left shoulder only impedes overhead work and that the left shoulder is not ankylosed. See November 2011 VA treatment record; May 2015 VA treatment record (full range of motion found in the extremities); May 2017 VA examination report. Moreover, the VA treatment records detailed above reflect that pain caused by the shoulder disabilities did not hinder the Veteran's ability to perform activities of daily living and that the shoulder disabilities only caused functional impairment that prevented overhead activities. A higher initial rating in excess of 20 percent for the left shoulder disability is also not available under DC 5200, 5202, or 5203, as the evidence of record shows negative findings of ankylosis, impairment of the humerus, and impairment of the clavicle or scapula in the left shoulder. See May 2017 VA examination report. Based on the foregoing, the Board finds that the preponderance of the evidence weighs against the assignment of a higher initial rating in excess of 20 percent for the left shoulder disability for the entire initial rating period from November 1, 2008. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a. Extraschedular Referral Consideration The Board has considered whether referral for extraschedular consideration is warranted for the service-connected right and left shoulder disabilities. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2017). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. Turning to the first step of the Thun extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran's right and left shoulder disabilities are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria contemplate the Veteran's right and left shoulder disabilities and the symptoms associated with such disabilities including limitation of motion, impairment of function, pain, painful motion, crepitus, locking up, and stiffness. The schedular rating criteria pertaining to the right and left shoulder disabilities provide for ratings based on limitation of motion, including due to pain and other orthopedic (DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59) factors such as weakness, incoordination, and fatigability. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca at 206-07 (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria); see also Mitchell at 45 (Footnote 2) and Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010) (when a condition is not listed in the VA disability schedule, VA may undertake rating by analogy where the disability in question is analogous in terms of the functions affected, the anatomical localization, and the symptomatology of the ailments). In this case, considering the lay and medical evidence, the right and left shoulder disabilities have been manifested by limitation of motion, impairment of function, pain, painful motion, crepitus, locking up and stiffness. These findings and symptoms are contemplated by the schedular rating criteria. Stiffness is considered as similar to pain or painful motion, as it similarly limits motion; such limitation has also been considered in assigning the schedular rating. Id. The Board has additionally considered ratings under alternate schedular rating criteria. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology); Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria). Because the schedular rating criteria are adequate to rate the Veteran's right and left shoulder disabilities, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extraschedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Comparing the Veteran's disability level and symptomatology of the right and left shoulder disabilities to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. There are no additional expressly or reasonably raised issues presented on the record. Absent any exceptional factors associated with the shoulder disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is potentially an element of all rating issues. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, as distinguished from the facts in Rice, the evidence of record does not indicate that the Veteran is unemployable due to one or more service-connected disabilities. As such, the Board finds that the issue of entitlement to a TDIU has not been raised and, therefore, the issue is not before the Board on appeal. ORDER For the entire initial rating period from November 1, 2008, a higher initial rating in excess of 20 percent for the right shoulder disability is denied. For the entire initial rating period from November 1, 2008, a higher initial rating in excess of 20 percent for the left shoulder disability is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs