Citation Nr: 1805158 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-04 219A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an effective date earlier than October 1, 1975 for the grant of service connection for a left shoulder dislocation, to include on the basis of clear and unmistakable error (CUE) in an April 15, 1976 rating decision that granted service connection and a noncompensable disability evaluation for the left shoulder dislocation from October 1, 1975. 2. Entitlement to an effective date prior to January 30, 2009 for the grant of a compensable rating for dislocation and degenerative joint disease of the left shoulder (left shoulder disability), to include on the basis of CUE in a May 29, 2009 rating decision that granted a 10 percent rating for the left shoulder disability from January 30, 2009. 3. Entitlement to a higher rating for the left shoulder disability, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Drucker, Counsel INTRODUCTION The Veteran had active military service from June 1964 to June 1967 and from August 1967 to September 1969. This case initially came to the Board of Veterans' Appeals (Board) on appeal from May 2009, June 2016, and May 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The May 2009 rating decision granted service connection for a left eye disability that was assigned an initial noncompensable rating, and a 10 percent rating for the Veteran's service-connected left shoulder disability, both from January 30, 2009. A December 2009 rating decision granted a 10 percent rating his left eye disability from January 30, 2009. In July 2010, the Veteran requested to testify before a Veterans Law Judge but, in August 2014, he withdrew his hearing request. See 7/15/10 Hearing Request; 8/28/14 Correspondence. The Board finds that all due process requirements were met regarding his hearing request. See 38 C.F.R. § 20.704(e) (2017). In February 2016, the Board remanded the Veteran's claims for increased ratings for his left shoulder and eye disabilities to the Agency of Original Jurisdiction (AOJ) for further development. A June 2016 rating decision granted a 20 percent rating for the Veteran's left shoulder disability from January 30, 2009. His left eye disability was assigned a 20 percent rating from March 7, 2009 and a 60 percent rating from June 7, 2016. The RO also denied an effective date earlier than January 30, 2009 for a compensable rating for the left shoulder disability, and an effective date earlier than October 1, 1975 for the grant of service connection for the left shoulder disability, including on the basis of CUE. In the May 2017 rating decision, the RO denied an effective date earlier than October 1, 1975 for the grant of service connection for the left shoulder disability and an effective date earlier than January 30, 2009 for the grant of a compensable rating for the left shoulder disability. In an August 2017 decision, the Board denied an initial rating higher than 10 percent prior to March 7, 2009, higher than 20 percent prior to June 7, 2016, and higher than 60 percent thereafter, for the Veteran's left eye disability. At that time, the Board remanded the matter of a rating higher than 20 percent for his left shoulder disability to the AOJ for additional development. The Board also remanded the matters of an effective date earlier than October 1, 1975 for the grant of service connection for the left shoulder disability and an effective date earlier than January 30, 2009 for the grant of a compensable rating for the left shoulder disability, including on the basis of CUE, for issuance of a statement of the case (SOC). The SOC was issued in August 2017 and the Veteran's substantive appeal was received by VA in October 2017. Thus, the Board may proceed to consider these matters. FINDINGS OF FACT 1. On October 1, 1975, the RO received the Veteran's initial claim for service connection for a left shoulder disorder. 2. The Veteran did not perfect an appeal of the RO's April 1976 decision that granted service connection and a noncompensable disability evaluation for his left shoulder dislocation from October 1, 1975. 3. The RO's April 1976 decision, that granted service connection and the noncompensable rating for the Veteran's left shoulder dislocation from October 1, 1975, did not contain an error in application of the extant applicable laws or regulations pertaining to effective dates that would have manifestly changed the outcome. 4. On January 30, 2009, the RO received the Veteran's claim for a compensable rating for his left shoulder disability 5. The May 2009 rating decision, assigned a 10 percent rating to the Veteran's left shoulder disability from January 30 2009. In response to that decision, the appellant submitted a timely substantive appeal; therefore, the May 2009 rating decision is not final. 6. Throughout the appeal period, the manifestations of the Veteran's left shoulder (minor extremity) disability have consisted of recurrent dislocation and flare-ups of pain, that produced even greater functional limitation, including difficulty performing activities of daily living; but with no evidence of fibrous union, nonunion (i.e., false flail joint), or loss of head (i.e., flail shoulder) of the left (minor) humerus. 7. There is X-ray evidence of degenerative arthritis associated with the Veteran's left shoulder dislocation disability productive of painful motion; without evidence of limitation of motion of the left (minor) arm limited to 25 degrees from the side. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than October 1, 1975 for the grant of service connection for the Veteran's left shoulder dislocation, including on the basis of CUE, have not been met. 38 U.S.C. §§ 5107, 5109A, 5110 (2012); 38 C.F.R. §§ 3.102, 3.104, 3.105, 3.155, 3.156(b), 3.400 (2017). 2. The May 2009 rating decision granting a 10 percent rating for left shoulder disability from January 30, 2009 is not final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 3. The issue of entitlement to an effective date earlier than January 30, 2009 for the grant of a compensable rating for the Veteran's left shoulder disability, including on the basis of CUE, is moot and no allegation of error of fact or law remains. 38 U.S.C.A. § 7105 (2012). 4. The criteria for a 30 percent rating, but not higher, for left shoulder dislocation disability have been met throughout the appeal period. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.17a, Diagnostic Code 5202 (2017). 5. The criteria for a separate 10 percent rating for degenerative arthritis of the left shoulder have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.7a, Diagnostic Codes 5003, 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist With respect to the Veteran's requests for revision based on CUE, the Board notes that notice and assistance requirements of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to requests for revision of decisions alleging CUE. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc). The general underpinning for the holding that the VCAA does not apply to CUE claims is that regulations and numerous legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered (with exceptions not applicable in this matter). See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the United States Court of Veterans Appeals (Court's) interpretation of 38 U.S.C. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision); Disabled Am. Veterans v. Gober, 234 F. 3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this effect). As to the Veteran's increased rating claim, in a March 2009 letter, the AOJ notified the Veteran of information and evidence necessary to substantiate his claim. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) cert denied (U.S. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 (c). His service treatment records were obtained. All reasonably identified and available VA and non-VA medical records have been secured. The Veteran underwent VA examinations in March 2009, May 2011, and May 2016, and the examination reports are of record. The purpose of the Board's August 2017 remand was provide the Veteran with a supplemental statement of the case (SSOC) that reflected initial AOJ review of all evidence received since the June 2016 SSOC. There has been substantial compliance, as the AOJ issued a new SSOC in August 2017. The March 2009, May 2011, and May 2016 VA examination reports regarding the Veteran's left shoulder disability are adequate for rating purposes as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran, provided clinical findings and diagnoses, and offered etiological opinions with rationales from which the Board can reach a fair determination. There is no indication that the Veteran's claimed left shoulder disability has worsened since the last related VA examination. As such, the Board finds that there is no basis to obtain a more current examination as to this claim. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007) (stating that mere passage of time not a basis for requiring of new examination). For the foregoing reasons, the Board finds the duties to notify and assist have been met. II. Facts and Analysis A. Earlier Effective Date/CUE Contentions The Veteran contends that a more appropriate date for the grant of service connection for his left shoulder disability is 1965 when it was initially injured, or September 13, 1968, the date he was discharged from active service. See e.g., 10/30/17 Form 9; 6/13/17 NOD (statement). He further maintains that a 40 percent rating for his left shoulder disability is warranted from 1975, and prior to January 30, 2009. See e.g. 10/20/17 Form 9; 8/25/16 NOD. Legal Criteria In order to challenge the RO's assignment of an effective date for the grant of service connection or increased rating for a disability, a claimant must file a notice of disagreement with the assigned effective date within the one year appeal period; otherwise that decision becomes final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.203. The only way to vitiate the finality of such a decision is via a grant of a request for revision of the decision alleging CUE in a prior final RO decision such that a different effective date would result. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). This would include a request for revision alleging CUE in the decision assigning the effective date. Id. at 300. Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If new and material evidence other than service department records is received within the appeal period or prior to an appellate decision, the effective date will be as though the former decision had not been rendered. For a claim to reopen after a prior final disallowance, where new and material evidence is received after a final disallowance, the effective date will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. §§ 3.156 (b), 3.400(q), (r). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101 (a) (2012); 38 C.F.R. § 3.151 (a). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157 (2017). The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the appellant's claim was received by VA prior to that date, the former regulations apply and are applicable to his case. Previously, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. 38 C.F.R. § 3.155 (a). Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim for benefits and is required to identify and act on informal claims for benefits. See 38 C.F.R. § 3.1(p) (2017); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In order for a request for revision based on CUE to be granted, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be "undebatable" and of the sort that, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. at 44. Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104 (a), 3.400 (k). In determining whether a prior determination involves CUE, the United States Court of Appeals for Veterans Claims (Court) established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement in how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); Crippen v. Brown, 9 Vet. App. 412, 424 (1996); see also Damrel, 6 Vet. App. at 245 (holding that a valid CUE claim requires that the Veteran assert more than a disagreement as to how the facts were weighed or evaluated). Additionally, the failure to fulfill the duty to assist cannot be CUE. See Cook v. Principi, 318 F.3d 1334, 1344-47 (Fed.Cir.2002) (holding that a breach of the duty to assist cannot form the predicate for a motion for revision of a finally decided claim based on CUE); Baldwin v. West, 13 Vet. App. 1, 5 (1999). Thus, examples of situations that are not CUE are: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a RO rating decision; (2) a failure to fulfill VA's duty to assist the claimant with the development of facts relevant to his or her claim; or (3) a disagreement as to how the facts were weighed or evaluated. CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the RO rating decision, there has been a change in the interpretation of the statute or regulation. A review for CUE must be based on the record and the law that existed at the time the decision was made. A claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision and, when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo v. Brown, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The Veteran has not met this burden as detailed below. Facts The Veteran filed his initial claim for service connection for left shoulder dislocation on October 1, 1975 (10/1/75 VA 21-526 Veterans Application for Compensation or Pension). Service treatment records show complaints of left shoulder dislocation. On March 17, 1965, the Veteran reported an inability to move his left upper arm after a fight the previous evening and was referred for an X-ray and orthopedic evaluation. See 8/31/12 STR Medical, page 77. X-rays of his left shoulder showed no evidence of fracture or dislocation. Id. at 70. A March 24, 1965 X-ray report indicates that views of the Veteran's left shoulder in internal and external rotation showed the presence of an extra bony density lying lateral to the greater tuberosity on the externally rotated film thought to probably represent an avulsion fracture of the greater tuberosity of the left humerus. See 8/31/12 STR Medical, page 69. The impression was avulsion fracture of the left humerus. X-ray of his left shoulder in June 1965 showed no joint or bone abnormality. Id. at 68 A November 1965 medical record indicates that the Veteran had a clinically dislocating left shoulder since the original injury, demonstrated it very vividly for the examiner, and had a bit of trouble reducing the anterior dislocation. See 8/31/12 STR Medical, page 80. He was to return to the clinic after leave to schedule surgery. X-rays of the left shoulder indicated that it appeared well seated in the glenoid with no fracture or dislocation seen. Id. at 67. A June 1966 X-ray report notes dislocation of the Veteran's left shoulder and that the X-ray was negative. Id. at 66, 81. In July 1966, the Veteran was evaluated in the orthopedic clinic for repeated dislocation of his left shoulder confirmed by X-rays. See 8/31/12 STR Medical, page 78. It was noted that the Veteran's X-rays were currently normal. The orthopedist was to observe the Veteran and, if his left shoulder dislocated, he was to return to the orthopedic clinic with X-rays showing the dislocation. According to a January 1967 clinical record, the Veteran sustained a traumatic dislocation of the left shoulder when involved in an altercation. See 8/31/12 STR Medical, page 83. His shoulder now habitually subluxated. X-ray revealed a definite Hills-Sachs lesion consistent with many previous dislocations. The impression was habitual dislocation of the left shoulder. It was noted that the Veteran wanted to defer repair until after his discharge from active service. A November 1968 record reflects a three-year history of recurrent subluxations, that the Veteran's shoulder was out of place 15 times, and that an orthopedic consult was to be scheduled. See 6/4/14 STR Medical, page 3. A January 1969 orthopedic consult notes the Veteran's reported history of left shoulder dislocation in 1964 and that there were no X-rays of when his shoulder was supposedly out. See 8/31/12 STR Medical, page 86. The impression was questionable recurrent dislocating left shoulder that was more likely a subluxing left shoulder. The radiologic impression of X-rays of his left shoulder taken at the time was that films showed a large calcific density at the anterior-inferior of the glenohumeral joint space. Id. at 74. A 2nd small calcification was noted posterior to the head of the humerus approximately at the level of the surgical neck. Any possible source of chip fracture or osteochondritis was not visualized on those films. It was thought that these calcifications may represent calcific tendonitis in the tendons surrounding the shoulder joint. A secondary possibility would be calcification in torn ligaments, a large calcified axillary lymph node, or calcification of a hematoma in that area. In February 1969, a physical profile was issued due to the Veteran's left shoulder disability that restricted him from pull ups, pushups and overhead work, and crawling on his elbows. . See 8/31/12 STR Medical, page 88. When examined for separation in May 1969, recurrent subluxations of the left shoulder with calcific deposits in the joint area were noted by the examiner. Id. at 33-34. Post service, in March 1975, the Veteran reported left shoulder pain diagnosed as bursitis, according to a November 1975 medical certificate signed by a private physician. See 11/10/75 Medical Treatment Record Non Government Facility. A report of X-rays of the Veteran's left shoulder and chest taken at that time included an impression of a demineralization in the region of the bicipital grove suggesting periarticulitis. Id. at 3. There was no soft tissue calcification. "The films of the left shoulder in internal and external rotation and in the axillar projection show no evidence of fracture or dislocation. There is some demineralization adjacent to the bicipital groove [and] this finding sometimes is seen with periarticulitis in the absence of soft tissue calcification and or may reflect intensive micro wave or ultra sound therapy for this disease." In November 1975, a private chiropractor reported that the Veteran had tightness and catching across shoulders, pain and stiffness between the shoulder blades, pain and stiffness to his neck, low back pain, and nervousness. See 11/28/75 Medical Treatment Record Non Government Facility. The diagnosis was subluxation of the first cervical vertebra from the occiput above and C-2 below. According to a November 1975 VA outpatient orthopedic consult, the Veteran was seen for recurrent dislocation of his left shoulder. See 3/18/76 C&P Exam, page 4. He complained of something clicking in the shoulder girdle area. X-rays showed a small, round oval calcium deposit-that cannot be localized by AP projection. Id. at 5. Repeat X-rays in sterio to localize this deposit were recommended and the Veteran was advised to return for evaluation. The Veteran was seen in December 1975 for reevaluation of recurrent dislocation of his left shoulder. See 3/18/76 C&P Exam, page 3. He still had some complaint behind his left scapula, that the examining physician found did not seem to be related to any previous dislocation of his shoulder. The examiner commented that the Veteran's clicking in the rhomboid area of his shoulder was a common complaint of a subscapular-type of abnormality that cannot be definitely diagnosed as to etiology. It was not sufficient to require treatment and, although it caused annoyance, it did not cause a major dysfunction. No specific therapy was indicated at that time. It was noted that the Veteran had a history of acute dislocation of the left shoulder in 1968. His shoulder had not re-dislocated since but he felt he was unstable at times and that his shoulder slipped, but he manipulated it and it seemed to slip back. The Veteran felt that this complaint in his shoulder was related to his primary anterior dislocation. The physician concluded that could not be verified by the current examination. In a March 1976 VA examination report, the Veteran gave a history of difficulty relaxing his left arm and a constant feeling that his arm must be readjusted. He saw many physicians and surgery was discussed, but it would limit his free arm movement. The Veteran worked, enjoyed sports, and was a violinist that demanded freedom of arm movement. The examiner noted the Veteran's history of left shoulder dislocation in 1968 and the Veteran's current report of occasional shoulder clicking and a feeling of having to reposition his shoulder. It felt like it was popping out, particularly with external rotation. On examination, the examiner noted slight muscle atrophy of the left shoulder that was questionable. There was full range of motion of the left arm without pain, and no swelling or tenderness. Diagnoses included chronic, recurrent, subluxation of the left shoulder by history with one episode of documented complete left shoulder dislocation. In the April 1976 rating decision, the RO granted service connection for the left shoulder dislocation disability and an initial noncompensable disability rating was assigned from October 1, 1975. On June 16, 1976, the Veteran submitted a notice of disagreement (NOD) with the assigned rating for his left shoulder disability and did not express disagreement with the effective date of his award. He reported constant shoulder pain and that physicians advised that he not use his arm. A SOC was issued on July 29, 1976. The Veteran did not perfect an appeal of the RO's determination. Further, no new and material evidence was received within one year of notice of the RO's April 1976 decision, so as to keep the prior claim pending. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); see also 38 C.F.R. §§ 3.156 (b); 3.400(q)(1). There was no communication from the Veteran or anyone on his behalf within one year, and there were no pertinent VA treatment records, dated within one year of the April 1976 decision, that would be considered to be in VA's constructive possession. Thus, the April 1976 decision is final. 38 U.S.C. § 7105. The next communication from the Veteran was received by VA on January 30, 2009 and requested an increased (compensable rating) for his left shoulder disability. The May 2009 rating decision granted a 10 percent rating for the Veteran's left shoulder disability from January 30, 2009. In a January 28, 2015 statement, the Veteran alleged CUE in the April 1976 rating decision. See 2/6/15 Correspondence. In August 2016 the Veteran raised the matter of CUE in the April 1976 and May 2009 rating decisions. See 8/25/16 NOD. In support of his claims, the Veteran submitted a September 2016 report from C.H.T., M.D., an orthopedic surgeon, who reviewed the Veteran's service treatment records, and the March 1975 and March 2009 VA examination reports, and performed a physical evaluation. See 10/27/16 Medical Treatment Record Non Government Facility, page 3. Dr. C.T. opined that the Veteran's condition was clearly service-connected, as evident in the records. In an October 2016 statement, Dr. C.H.T. indicated that the Veteran sustained a left shoulder dislocation in service, had recurrent subluxations and dislocations and now had some posttraumatic arthrosis of the left shoulder, and that his application for service connection with the VA system was denied. See 10/27/16 Medical Treatment Record Non Government Facility, page 2. Dr. C.H.T. noted his September 2016 evaluation of the Veteran and opined that his dislocation was service-connected and was a posttraumatic problem in the shoulder related to his incident in service. The physician stated that subsequent records demonstrated a calcific density consistent with a Hill Sachs lesion and the Veteran had recurrent instability in the shoulder that resulted in some stiffness and posttraumatic arthritis. It was medically probable that his current situation was directly attributable to the original injury in service. The Veteran was, or will be, a candidate for consideration of shoulder replacement surgery. 1. Effective Date Earlier than October 1, 1975 for the Grant of Service Connection for Left Shoulder Dislocation Disability The Board finds that the effective date for the grant of service connection for the Veteran's left shoulder disability can be no earlier than the date of receipt of the Veteran's initial October 1, 1975 claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. He was separated from active service on September 13, 1968 and submitted his claim on October 1, 1975, nearly seven years later. The Veteran has not alleged, and the record does not otherwise reflect, any communication from him that may be construed as an informal service connection claim earlier than October 1, 1975. In reaching this determination the Board acknowledges the Veteran's contention that his shoulder was initially injured in service in 1965, but the fact remains that he first filed a claim for service connection for a left shoulder disability on October 1, 1975. The April 1976 rating decision granted service connection for left shoulder dislocation from October 1, 1975, the date of his claim. As indicated above, the Veteran did not voice any disagreement as to the assignment of an effective date of October 1, 1975 within one year following his receipt of the notice letter that accompanied the April 1976 rating decision; the April 1976 rating decision became final with regard to the effective date assigned for the grant of service connection for the left shoulder disability. The April 1976 rating decision is not subject to revision in the absence of CUE in the decision. 38 U.S.C. §§ 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. at 296 (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). The Veteran's only recourse is to have the final decision revised on the grounds of CUE. See 38 C.F.R. § 3.105; Rudd v. Nicholson, 20 Vet. App. at 296. Veteran has alleged CUE in the April 1976 rating decision that assigned an effective date of October 1, 1975 for the grant of service connection for his left shoulder disability. At the time of the April 1976 rating decision, the applicable statute and regulation indicated that, unless specifically provided otherwise, the effective date of an award of disability compensation was set in accordance with the facts found, but could not be earlier than the date of receipt of the claim for the compensation that was granted. 38 U.S.C. § 3010(a) (as in effect in 1970) (resdesignated as 38 U.S.C. § 5110(a)); 38 C.F.R. § 3.400 (b)(2) (as in effect in 1975 and currently). The statute and regulation contained an exception to this rule under which the effective date of an award of disability compensation to a veteran was the day following separation from service if the claim for compensation was received within one year of separation from active service. 38 U.S.C. § 3010 (b) (as in effect in 1970); 38 C.F.R. § 3.400 (b)(2) (1975 and currently). The regulation further indicated that, if the claim was not filed within a year of separation from service, the effective date would be the date of receipt of claim or date entitlement arose, whichever was later. 38 C.F.R. § 3.400 (b)(2). In this case, the Veteran's date of separation from service was September 13, 1968. His claim for entitlement to service connection for left shoulder disability was received by VA on October 1, 1975. As this date was more than one year after separation from service, the law and regulation in effect at the time reflected that this date of claim was the appropriate effective date for the grant of service connection for left shoulder dislocation. In written statements, the Veteran contends that his initial left shoulder injury occurred in 1965 and that he was discharged with the injury in September 1968 - that warrants an earlier effective date for the grant of entitlement to service connection for the left shoulder disability. The laws and regulations in effect at that time, however, specifically provided for an effective date based on the date of claim unless the claim was filed within one year of separation. Thus, even assuming that the Veteran had the left shoulder dislocation in and since service, and entitlement arose prior to the date of the October 1, 1975 claim, the effective date would, nevertheless, be the date of the claim, which is the later of the two, pursuant to the regulation in effect at that time, 38 C.F.R. § 3.400(b)(2). The only basis for an earlier effective date in these circumstances would be if there was an informal claim filed prior to the October 1, 1975 claim. At the time of the April 1976 RO rating decision, any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identified the benefit sought, was considered an informal claim. 38 C.F.R. § 3.155 (a) (1975). Moreover, 38 C.F.R. § 3.157 (b) (1975) provided that once a formal claim for pension or compensation has been allowed or a formal claim for compensation was disallowed for the reason that the service-connected disability was not compensable in degree, receipt of certain documents, including report of a VA examination, would be accepted as an informal claim for increased benefits or an informal claim to reopen. Review of the record reflects that the documents in the claims file prior to the October 1, 1975 claim consist of documents relating to education and administrative matters that do not reflect an intent to file a claim for entitlement to service connection left shoulder disability. In addition, although 38 C.F.R. § 3.157 (b) provided an exception to the intent requirement for certain documents, in this case there was no claim for pension or compensation that had been allowed or claim for compensation that had been disallowed prior to the October 1, 1975 claim. There was, thus, no basis under the applicable laws and regulations at the time of April 1976 RO rating decision for the assignment of an effective date earlier than October 1, 1975, and the RO, therefore, did not commit CUE in assigning the effective date of October 1, 1975 based on the date of the claim. To the extent that the Veteran may profess lack of knowledge with the laws requiring him to file a claim, or an intent to file a claim, for compensation at discharge in order to achieve an effective date of September 1968 for service connection, such lack of knowledge cannot be the basis of a finding of CUE in the April 1976 rating decision. The Board is sympathetic to this argument that, had the Veteran been made aware of possible entitlement to compensation and assisted in filing an application for such compensation, he would have filed his claim earlier. The Court has held, however, that claimants are charged with knowledge of laws and VA does not have a duty to search out potential beneficiaries. See Wells v. Principi, 3 Vet. App. 307, 309 (1992) (holding that there is no requirement on the part of the Secretary to search out and identify potential beneficiaries). Similarly, as noted above, the breach of the duty to assist is not a valid basis for a finding of CUE. See Cook v. Principi, 318 F.3d at 1344-47 (a breach of the duty to assist cannot form the predicate for a motion for revision of a finally decided claim based on CUE). The Board thus finds that there is no legal merit to this argument. For the foregoing reasons, the motion alleging CUE in the RO's April 1976 rating decision, that granted service connection for left shoulder dislocation from October 1, 1975, must be denied. The benefit of the doubt doctrine is not for application in this regard. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (noting that it is well established that the benefit of the doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involves more than a disagreement as to how the facts were weighed or evaluated). In sum, the Board finds that the weight of the relevant probative evidence of record is against an effective date earlier than October 1, 1975, for the grant of service connection for a left shoulder dislocation. 2. Effective Date Earlier than January 30, 2009 for the Grant of a Compensable Rating for Left Shoulder Disability The Veteran alleges that the May 2009 RO decision failed to correctly apply 38 C.F.R. §§ 4.2, 4.71a, Diagnostic Code 5202. He asserts that a higher rating should have been assigned based on the repeated misdiagnoses of his left shoulder disability that was not properly diagnosed until a magnetic resonance image (MRI) was performed. See e.g., 8/28/14 Correspondence; 3/10/16 Legacy Content Manager Documents (LCDM) (1st set), pages 181-2. The Veteran maintains that the RO's 2009 grant of the 10 percent rating was a "defacto admission of error" and that a 40 percent rating is warranted. See 3/8/16 Correspondence; 8/25/16 NOD. The Veteran further contends that, without the MRI, only a partial record was available at the time of the 2009 rating decision. See 10/30/17 Form 9. He argues there was "sufficient evidence in the record prior to 1976" to support a compensable rating prior to 2009. Id. The Veteran states that "[a]n unstable shoulder that causes pain is a disabled state. The practitioner of 3-10-75 was not an orthopedic specialist." See 10/27/16 Correspondence, page 2. He believes the rating for his left shoulder in 1975 "should have been...40% because a loose shoulder/arm connection is a damaging condition." Id. at 3. The Veteran alleges that the RO "did not weigh all evidence" in reaching its determination. See 10/30/17 Form 9, page 5. He maintains that Dr. C.H.T. construed the initial noncompensable rating as a denial and supported the award of a compensable rating. Id. at 4. A claimant may appeal to the Board from an adverse determination on a claim by the AOJ. 38 U.S.C. §§ 7104, 7105 (2012). If an appeal is not initiated in a timely manner, or if a timely appeal is initiated and the appeal is denied, the disallowance becomes final. 38 C.F.R. §§ 20.302, 20.1100, 20.1103 (2017). A previous determination by the AOJ that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, however, the prior decision will be reversed or amended. 38 U.S.C. § 7105; 38 C.F.R. § 3.105 (a). Thus, the threshold determination for a claim alleging CUE in a decision is that the decision was final. Here, the May 2009 rating decision granted a 10 percent rating for left shoulder dislocation disability from January 30, 2009. The Veteran perfected an appeal of that determination. In August 2016, he alleged CUE in the May 2009 decision. Because the appellant perfected a timely appeal of the May 2009 rating decision, that rating decision did not become final. 38 C.F.R. § 20.1103. Significantly, the matter of the proper effective date for the higher rating for the Veteran's service-connected left shoulder disability is part and parcel of his increased rating claim that is currently on appeal before the Board. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will address the rating on direct appeal. The standard for granting the appeal is much less onerous on the Veteran than the standard for revising the decision based on CUE. Essentially, the Veteran would have to show by clear and unmistakable evidence that the decision was incorrect while he can prevail on direct appeal if the evidence is at least balanced that the rating should be higher for that earlier period of time. Hence, the Board will dismiss without prejudice for refiling the CUE request and address the matter on direct appeal. Should the Veteran wish to pursue a CUE revision in the future he is not prejudiced by this action. B. Increased Rating Contentions The Veteran contends that the current manifestations of his left shoulder disability warrant a higher, 40 or 60 percent, disability rating. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In the case of an increased rating, a claimant may also experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. at 505. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two evaluations is to be applied, the higher evaluation 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 (2017). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). The Veteran's statements describing the symptoms of his service-connected disability are deemed competent. These statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet App 32 (2011); DeLuca v. Brown, 8 Vet. App. at 202. The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell, 25 Vet. App. at 33, 43. VA's policy is treated actually painful, unstable, or malaligned joints as warranting at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation applies to any service-connected joint disability, not just arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board is aware of the recent decision in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the Court stated that the final sentence in 38 C.F.R. § 4.59 ("[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint") creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. In this case, the VA examinations recorded active range of motion (ROM) of the pertinent joints and corresponding active ROM of the opposing joints; the examiners did not record pain with passive motion or with weightbearing, however, as discussed below, other VA clinicians evaluated the Veteran's left shoulder disability and recorded findings regarding passive left shoulder motion and with weight-bearing. The Board finds no prejudice in this case. VA received the Veteran's current increased rating claim in January 2009. The evidence shows that he is right-hand dominant, and his left-sided joints are considered to be his "minor" joints. The Veteran's left shoulder disability is currently rated under Diagnostic Code 5202, that rates other impairment of the humerus. Under Diagnostic Code 5202 for the minor joint (in this case, the Veteran's left shoulder), a 20 percent rating is warranted for malunion of the humerus with moderate or marked deformity, for infrequent episodes of recurrent dislocation of the scapulohumeral joint with guarding of movement only at the shoulder level, or for frequent episodes of recurrent dislocation of the minor scapulohumeral joint with guarding of all arm movements. 38 C.F.R. § 4.71a, Diagnostic Code 5202. A 40 percent rating is warranted for fibrous union of the humerus. Id. A 50 percent rating is warranted for nonunion of the humerus (i.e., false flail joint). Id. A 70 percent rating is warranted for loss of head of the humerus (i.e., flail shoulder). Id. Under Diagnostic Code 5201, for the minor joint (in this case, the left shoulder): a 20 percent rating is warranted for limitation of motion of the arm either at shoulder level or midway between side and shoulder level. 38 C.F.R. § 4.71a, Diagnostic Code 5201. A 30 percent rating is warranted for limitation of motion of the arm to 25 degrees from the side. Id. Under Diagnostic Code 5010, traumatic arthritis is rated as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010 (2017). Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the joint involved, with a 10 percent evaluation assigned for limited motion that is noncompensable under the appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal range of motion in the shoulder is from 0 to 180 degrees of flexion, 0 to 180 degrees of abduction, and 0 to 90 degrees of external and internal rotation. 38 C.F.R. § 4.71, Plate I (2017). Flexion or abduction limited to 90 degrees equates to shoulder level. Id. Facts VA records, for example a March 1976 VA examination report, documents that the Veteran is right handed. VA outpatient records show that, in February 2009, the Veteran was seen to re-establish primary care. See 2/19/09 CAPRI, page 1. He reported that he had a left shoulder dislocation during service and did not opt for surgery. The Veteran worked as a plumbing and electrical contractor and had increased difficulties doing his work due to the shoulder dislocation with pain and disability from any heavy exertion of his left or right arm. The record indicates that, when offered physical therapy - he said "I can't conform to that" - that was construed to mean he was unwilling to come in even once to get an exercise regimen - and he felt he could do it all himself. X-ray of the Veteran's left shoulder performed at that time showed moderate narrowing consistent with degenerative disease of the glenohumeral joint. Id. at 4. The March 2009 VA examiner noted the Veteran's history of dislocation of the shoulder but no X-rays to confirm and reviewed the X-rays performed in February 2009. See 4/27/09 VA examination. The Veteran complained of significant symptoms with heavy lifting and pushing and use of his left hand. He was able to work above the shoulder level but that caused more pain on the left shoulder so he avoided it. On examination, there was no obvious deformity or atrophy. Range of motion of the Veteran's left shoulder was flexion and abduction each to 170 degrees, extension was to 65 degrees, and internal and external rotation were each to 90 degrees. There was no fatigability, lack of endurance, or loss of range of motion or any aggravation of pain with repetitive motion. Some crepitation was noted with passive motion of the left shoulder. There was some subluxation of the capsule detected by pistoning motion and some tenderness over the glenohumeral joint. Motor strength of the left shoulder musculature was normal. The examiner performed a "DELUCA" examination that involved doing three push and pull motions against resistance, three elevation and depression motions against resistance and by doing three forward motions throughout the flexion range three times. There was no fatigability, lack of endurance, or loss of range of motion, or any aggravation of pain during the Deluca examination. The diagnosis was moderate degenerative disease of the left glenohumeral joint with some subluxation of the shoulder capsule, and with chronic pain and slight loss of range of motion. The examiner commented that, with respect to the Deluca examination, there was slight loss of range of motion, some pain near the end range of flexion and abduction, however motor strength was normal, and no additional loss of range of motion with repeated motion and no fatigability or lack of endurance. The Veteran used his left hand carefully. He avoided heavy lifting, heavy push and pull motions or heavy maneuvering but he was able to use his left hand for all bimanual tasks. The Veteran avoided working above the shoulder to avoid any incapacitating flare ups. He had some extra pain from time to time but he had more pain on sleeping on the left side, more pain with heavy use of the left shoulder, and more pain during cold weather. The examiner observed that it was possible that the Veteran may have more painful motion with some fatigability or lack of endurance under certain conditions; however it would be mere speculation on the examiner's part to guess the degree of such impairment. The Veteran was independent in self-care. He was able to take care of himself and drive and walk as desired. According to a December 2009 VA orthopedic surgery note, the Veteran was seen for left shoulder pain since dislocation in 1965. See 12/31/09 CAPRI, page 1. He had to guard the left shoulder against popping out, and lived with pain with activity since then. The Veteran stated that his left shoulder was "loose". He was right hand dominant. His pain was constant and sharp and he said that his shoulder was not in the correct 1ocation and he had to adjust it. He stated that his shoulder moved around and he did not have physical therapy or a cortisone injection. The Veteran had pain with overhead activities and other daily activities of living. Lifting a toilet seat or drawers caused pain. His main complaint was a feeling of instability in the shoulder and impending dislocation. On examination, there was mild diffuse tenderness on palpation of the left shoulder. Range of shoulder motion was forward flexion to 170 degrees, external rotation to 20 degrees, internal rotation to L3, external rotation in abduction to 70 degrees. Muscle strength was 5/5 (normal). Impingement was to 1 plus. Crepitus was noted and stability and relocation were guarded. A MRI of the Veteran's left shoulder showed advanced degenerative joint space narrowing and chondromalacia of the left glenohumeral joint and small to moderate effusion. There was a large 1.8 by 1.3 centimeter (cm) intra-articular joint body within the sub coracoid recess that was likely secondary to degenerative disease. The MRI also showed advanced degeneration of the superior and anterior labrum. There was bony irregularity of the anterior glenoid suggestive of an old Bankart lesion; however, no definite fracture fragment was identified. It also showed partial tears of the infraspinatus and bicipital tendons. The assessment was left shoulder post-dislocation arthropathy/degenerative joint disease and subjective instability. A cortisone shot was recommended for the Veteran's left shoulder degenerative joint disease and subjective instability, that he declined. Arthroscopy was recommended if his symptoms persisted. It was noted that he was not bad enough for a TSA (total shoulder replacement?) but may need it in the future. The Veteran admitted that he was being seen for consideration of his VA disability rating and was advised that was not the appropriate clinic for the evaluation. A February 10, 2010 VA orthopedic surgery report reflects the Veteran's complaint of left shoulder pain and instability. 10/31/16 CAPRI, page 1. His active and passive range of motion was 170 degrees. External rotation on the left side was to L3 versus T12. External rotation was to 90 degrees with his shoulder abducted. The Veteran had full strength in that extremity. He had a positive Neers impingement sign and positive Hawkins. The Veteran had no pain with cross-arm reduction and no pain in the acromioclavicular (AC) joint. There was crepitus noted posteriorly associated with pain. He had good strength in the supraspinatus isolation test and was able to do the lift-off. It was noted that X-rays of the Veteran's left shoulder showed evidence of arthritic changes in that joint. There was subchondral sclerosis and some joint space narrowing. An MRI revealed joint space narrowing of the glenohumeral joint associated with chondromalacia. There was an intraarticular joint body that was sub coracoid and evidence of a SLAP tear. The Veteran had an irregularity of the anterior glenoid that could be suggestive of an old Bankart lesion. He had partial tears of the infraspinatus and bicipital tendons. The assessment was left shoulder status post dislocation now with arthropathy. In April 2011, the Veteran was reevaluated by the VA examiner. The examination report indicates that current imaging reports revealed that the Veteran had severe degenerative changes in his left shoulder of the glenohumeral joint with some effusion, joint space narrowing, chondromalacia, and a loose body thought to be due to the degenerative process. There was advanced degeneration of the superior and anterior labrum and partial tears of the infraspinatus and bicipital tendon. The Veteran had a constant feeling of subluxation and had to help his shoulder come to proper position with his opposite hand. He was unable to do any heavy lifting or maneuver. The Veteran barely managed his self-care and had difficulty sleeping on his left side. His shoulder pain increased with any use of his left hand and on sleeping on the left side. He had constant grinding and popping with motion with a feeling of stiffness and pain that increased with use. By being careful, he was able to avoid any incapacitating flare-ups and did not notice any significant swelling. On examination, the Veteran's left shoulder appeared normal. There was no local swelling, redness, puffiness, warmth, or obvious atrophy of the shoulder musculature. Motions of the left shoulder were painful and crepitus was listed with the motions. Range of left shoulder motion was flexion and abduction each to 120 degrees, extension to 65 degrees, external rotation to 60 degrees, and internal rotation to 90 degrees. The Veteran was able to do three forward flexion motions throughout the available range without any additional loss of range of motion or significant aggravation of pain. The Veteran had pain on motion. Crepitus was noted with passive motion of the left shoulder and slight shoulder capsule laxity was also noted. Impingement test was negative and there was tenderness along the left glenohumeral joint. Motor strength of the left shoulder musculature was 4/5 due to pain. The diagnosis was severe degenerative joint disease of the left shoulder with loss of motion and painful motion. In May 2011, the VA examiner reiterated that the Veteran had decreased range of motion of his left shoulder, crepitus in motion, and difficulty using his left upper extremity. See 5/10/11 VA examination. The Veteran was seen in the VA emergency room in January 2016 with complaints of left shoulder pain for three weeks. See 6/15/16 Legacy Content Document Manager (LCDM) CAPRI (2nd set), page 35. The record notes his history of chronic left shoulder pain due to severe osteoarthritis, rotator cuff partial tear, labrum tear. He felt that his shoulder was always unstable and he had to move it into place. The examiner noted that the Veteran was usually pretty active and, although the left shoulder was limited in range of motion and pain, he could still use it. He was unsure if he exacerbated it by using it too much. He denied any trauma or recent injury. It was noted that the Veteran was seen in the orthopedic clinic in 2010 and in the Palo Alto VA orthopedic clinic but, at that time, was not happy with either consultation and did not pursue any further treatment. On examination, the Veteran's shoulders appeared symmetric with atrophy of the left supraspinatus and no tenderness to palpation over the biceps tendon or AC joint. He had tenderness inferior to the AC joint in the glenohumeral joint space. There was very limited active range of motion, with 30 degrees for abduction, he was unable to internally rotate, 90 degrees for external rotation, and he was able to adduct. Passive range of motion improved abduction to 130 degrees and external rotation to 120 degrees. There was a positive empty can sign, the Veteran was unable to do Hawkins/Neer tests due to pain, and there was a negative Jergenson's sign. The Veteran's strength was limited by pain but grossly intact. The examining physician speculated that the Veteran's acute exacerbation could be due to flare of his rotator cuff tendonitis with overlying adhesive capsulitis. On examination, there was no gross fracture or dislocation and Veteran denied trauma. After extensive conversation, the Veteran was willing to see a physical therapist once and meet with an orthopedist again to discuss treatment options. He declined X-rays, stating that they were not sensitive and he had gotten too many of them. A new MRI was ordered, given the prior MRI was five years ago. A February 2016 report of a MRI of the Veteran's left shoulder revealed a diffusely abnormal signal in the supraspinatus tendon with thinning, some intermediate signal change and thinning of the infraspinatus, and some signal change in the subscapularis tendon, according to Dr. C.H.T.'s September 2016 report at page 4. There was no evidence of fluid in the bursa. There was significant degeneration of the glenoid labrum and degeneration of the cartilage within the glenohumeral joint. Some mild degenerative changes in the acromioclavicular joint were noted. A "large heterogeneous intraarticular body within the sub coracoid recess measuring 3 [by] 1.5 centimeters" was noted. X-rays were recommended to evaluate that area further. The final diagnosis was sequelae of rotation cuff injury with advanced osteoarthritis of the glenohumeral joint, and an increased intraarticular body in the sub coracoid recess. Dr. C.H.T also noted that a March 2016 radiology report of an X-ray of the Veteran's left shoulder indicated an intraarticular body within the sub coracoid recess, currently measuring 3 by 1.5 centimeters with findings of tendinopathy in the supraspinatus, infraspinatus, and subscapularis, and findings that there was likely a "near complete tear of the subscapularis". The intraarticular loose body increased in size and was "likely secondary to advanced osteoarthritis". The May 2016 VA examiner reported diagnoses of left bicipital tendonitis (diagnosed in February 2016), rotator cuff tendonitis (diagnosed in November 2009), glenohumeral joint osteoarthritis (diagnosed in 2009), and glenohumeral joint dislocation (diagnosed in February 1968). The Veteran currently complained of severe left shoulder pain, especially if his left upper extremity was away from his body. He was unable to raise his arm above shoulder level, could not move his left upper extremity to the back of his body, was unable to sleep on his shoulder, and had limited range of motion. The Veteran had shoulder flare-ups usually in the morning, if he accidentally mis-positioned his left upper extremity during the night. He had functional loss that he described as an inability to weight-bear more than three to four pounds, move his left upper extremity away from his body, raise above level of shoulder, and move his left upper extremity to his back. On examination, range of motion of the Veteran's left shoulder was flexion from 0 to 110 degrees, abduction from 0 to 90 degrees, external rotation from to 70 degrees, and internal rotation from 0 to 80 degrees. The examiner noted that range of motion was limited only due to the intrinsic shoulder condition. After repetitive motion, there was additional loss of motion and functional loss, with pain, fatigue, weakness, lack of endurance. The Veteran's range of left shoulder motion after repetitive motion was flexion to 100 degrees, abduction to 70 degrees, external rotation to 70 degrees and internal rotation to 80 degrees. The examiner noted that pain, weakness, fatigue, and lack of endurance significantly limited functional ability with repeated use over a period of time, described in terms of range of motion as flexion to 90 degrees, abduction to 70 degrees, external rotation to 70 degrees, and internal rotation to 80 degrees. The Veteran's range of motion contributed to functional loss in that he was unable to raise above shoulder level to touch his head, or move his left upper extremity to his back, and had limited weight bearing. The examiner noted pain with weight bearing, severe pain over the AC joint on palpation due to diagnosis, and crepitus. Left shoulder muscle strength was 5/5 (normal) and there was no muscle atrophy. Hawkins' impingement test, empty-can test, and external rotation infraspinatus strength test, were positive, and lift-off subscapularis test was negative. There was shoulder instability or dislocation with frequent episodes of guarding of all arm movements. The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), fibrous union of the humerus, or malunion of the humerus with moderate or marked deformity. The examiner noted that degenerative or traumatic arthritis of the Veteran's left shoulder was documented in imaging studies. The functional impact of his shoulder disability resulted in limited range of left shoulder motion, persistent guarding and the shoulder always kept close to his body, frequent dislocations, limited weight bearing from three to five pounds for the left upper extremity alone, an inability to move above shoulder level to touch his face and head, an inability to move his left upper extremity to touch his back, and difficulty washing the right side of his body with the left upper extremity, and undressing. In a June 15, 2016 addendum, the examiner stated that the "documented degenerative disease is more likely than not a progression of [the Veteran's] recurrent dislocations and service connected left shoulder" disability. An August 10, 2016 record indicates that range of motion of the Veteran's left shoulder revealed limitation, particularly in flexion and abduction, according to Dr. C.H.T.'s September 2016 report. There was shoulder instability with a history of recurrent shoulder dislocation or subluxation on the left side. The Veteran was able to perform "repetitive use" for three repetitions but had significant limitation in mobility. Range of motion was flexion to 100 degrees, abduction to 70 degrees, external rotation to 70 degrees, and internal rotation to 80 degrees. A MRI was requested. It was noted that the Veteran would limited with the use of his left shoulder with a need to keep the left shoulder "close to the trunk." It was also noted that "physical work would be significantly impacted" but these conditions could be resolved "with a successful total shoulder replacement". In September 2016, Dr. C.H.T. reported that physical examination of the Veteran revealed no visible deformity or significant atrophy. See 10/31/16 Medical Treatment Record Non Government Facility, page 4. Range of motion of the Veteran's left shoulder was flexion to 60 degrees, abduction to 42 degrees, external rotation to 25 degrees, internal rotation to 80 degrees, abduction to 60 degrees, and adduction to 20 degrees. Upper extremity circumferences were brachial 26.0 and forearm 25.0. Rotating the shoulder did not reveal obvious crepitation. Dr. C.H.T diagnosed a history of traumatic dislocation of the left shoulder with reduction, and a history of recurrent subluxations or dislocations, with gradual progressive degenerative changes of the glenohumeral joint, and appearance of a calcified loose body in the sub coracoid space. The physician stated that the Veteran had "significant limitation in his shoulder, and has disability/impairment on that basis." Id. age 9. If there was significant glenohumeral arthritis, a shoulder replacement procedure would be recommended. Analysis The medical evidence of record documents that, since January 30, 2009, the Veteran's left shoulder disability has been characterized by pain, but with no evidence of: fibrous union, nonunion (i.e., false flail joint), or loss of head (i.e., flail shoulder) of the left (minor) humerus; or limitation of motion of the left (minor) arm limited to 25 degrees from the side. It is noted here that the most recent examination took into account the Veteran's description of impairment during flare-ups and provided an estimate of his range of motion. Such findings do not warrant a rating higher than the currently assigned 20 percent rating under Diagnostic Code 5202. Diagnostic Code 5200, evaluates ankylosis of scapulohumeral articulation. 38 C.F.R. § 4.7a, Diagnostic Code 5200 (2017). Ankylosis is defined in general as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 86 (28th ed. 1994)). Diagnostic Code 5200 does not apply in the instant case because there is no evidence of any ankylosis of the left shoulder disability, as discussed above. In addition, because Diagnostic Code 5203 (for impairment of clavicle or scapula) does not provide for any ratings higher than 20 percent, the Board need not consider its application, as no additional benefit will result to the Veteran. 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2017). The Board has also taken into consideration the question of loss of functionality during flare-ups, as required by the Court in Mitchell v. Shinseki, 25 Vet. App. at 43. The May 2016 examiner noted that Veteran had shoulder flare-ups usually in the morning, if he accidentally mis-positioned his left upper extremity during the night. The Veteran asserts that VA examination reports do not provide accurate evaluation of his shoulder pain while sleeping. See 10/30/17 Form 9, page 6. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. The record throughout the appeal period shows that, in December 2009, a VA clinician noted the Veteran's report of left shoulder pain with lifting a toilet seat and, in April 2011, the VA examiner observed that the Veteran "barely managed self-care" and had difficulty sleeping on his left side. The May 2016 examiner noted that the Veteran's functional loss caused an inability to weight bear more than 3 to 5 pounds, with difficulty washing the right side of his body with the left upper extremity and undressing. Here, the Board finds that the effects of pain reasonably shown to be due to the Veteran's service-connected left shoulder disability demonstrate a greater level of functional loss than that represented in the currently assigned 20 percent rating under Diagnostic Code 5202. The Board concludes that such functional impairment is commensurate with a higher 30 percent rating for left shoulder dislocation disability. The benefit of the doubt has been resolved in the Veteran's favor to this limited extent. 38 C.F.R. §§ 4.40, 4.45, However, there is no indication that pain or flare-ups, due to disability of the Veteran's left shoulder dislocation disability, causes functional loss greater than that contemplated by the 30 percent evaluation, assigned herein. 38 C.F.R. §§ 4.40, 4.45. Accordingly, the Board finds that a 30 percent rating, but no higher, is warranted for the Veteran's left shoulder dislocation disability. 38 U.S.C. 5107(b); 38 C.F.R. § 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5202. Further, the Veteran's left shoulder symptomatology also includes X-ray evidence of arthritis and some limitation of motion. In Lyles v. Shulkin, the Court recently held that "entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different [diagnostic code]. In the context of evaluating musculoskeletal disabilities based on limitation of motion, a manifestation of disability has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the principles set forth in DeLuca v. Brown, 8 Vet. App. 202". See Lyles v. Shulkin, U.S. Vet. App., No.16-0994, page 2 (Nov. 29, 2017). Further, in Hicks v. Brown, 8 Vet. App. 417 (1995), the Court noted that Diagnostic Code 5003 and 38 C.F.R. § 4.59 deem painful motion of a major joint or group of minor joints caused by degenerative arthritis that is established by x-ray evidence to be limited motion even though a range of motion may be possible beyond the point when pain sets in. As noted, under Diagnostic Code 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Here, the reported motion of the left shoulder in flexion has been from 60 to 170 degrees of flexion. As noted, normal range of flexion of the shoulder is to 180 degrees. See 38 C.F.R. § 4.71, Plate I. Thus, the Veteran has some limitation of motion of the left shoulder. The limitation of flexion however, is not compensable. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Accordingly, under Diagnostic Code 5003, the arthritis and limitation of motion of the left shoulder warrants a separate 10 percent rating, but no higher. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) is potentially an element of all claims for increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In the June 2016 rating decision, the RO granted a TDIU from June 7, 2016 and, in a July 2016 rating decision, effectuated the TDIU award from January 30, 2009, the date the Veteran's increased rating claim was received. Thus, any further consideration of TDIU is not warranted at this time. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board finds that at no time since the Veteran filed his most recent claim for an increased rating for left shoulder disability, has the disability on appeal been more disabling than as currently rated under the present decision of the Board. Hart. ORDER An effective date earlier than October 1, 1975 for the grant of service connection for left shoulder dislocation is not warranted and the April 1976 rating decision that granted service connection for the left shoulder disability from October 1, 1975 did not contain CUE; the appeal is denied. The issue of entitlement to an effective date earlier than January 30, 2009 for the assignment of a compensable rating for left shoulder disability is not warranted and the May 29, 2009 rating decision that assigned a 10 percent rating for left shoulder disability from January 30, 2009, did not contain CUE; the appeal is dismissed without prejudice for refiling. Entitlement to a 30 percent rating throughout the appeal period, but not higher, for left shoulder dislocation disability is granted. Entitlement to a separate 10 percent rating for left shoulder degenerative arthritis is granted. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs