Citation Nr: 1532304 Decision Date: 07/29/15 Archive Date: 08/05/15 DOCKET NO. 14-05 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for substance abuse. 3. Entitlement to service connection for insomnia. 4. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with major depressive disorder. 5. Entitlement to an initial disability rating in excess of 10 percent for right shoulder strain. 6. Entitlement to an initial compensable disability rating for burn residuals, numbness of left 2nd and 3rd fingers, without scars. REPRESENTATION Appellant represented by: John R. Worman, Attorney at Law ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran had active service from November 1997 to July 2011, including periods of service in Iraq from December 2002 to June 2004 and from December 2005 to February 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. A letter from the Veteran's representative titled "Brief in Support of Veteran in Response to 90 Day Letter" raises a claim on behalf of the Veteran of entitlement to service connection for obstructive sleep apnea. This matter is referred to the RO for appropriate action. The issue of service connection for substance abuse is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran is not shown by medical evidence of record to have a low back disability. 2. The Veteran's insomnia and sleep disturbance are compensated as symptoms of his service-connected PTSD with major depressive disorder; a separate disability manifested by insomnia has not been shown. 3. The Veteran's PTSD with major depressive disorder is not productive of occupational and social impairment with reduced reliability and productivity, or more severe impairment. 4. The Veteran's right shoulder strain has resulted in painful motion with limitation of motion; forward flexion has been limited by pain to 155 degrees of flexion or adduction. 5. The Veteran's burn residuals, numbness of left 2nd and 3rd fingers, without scars, is productive of a loss of sensation involving a small area on the palmar aspect of the proximal phalanx of the left fingers 2 and 3; and does not include a scar or any functional impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 2. The criteria for service connection for a separate disability manifested by insomnia have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2014). 3. The criteria for a schedular disability rating in excess of 30 percent for PTSD with major depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3; 4.130, Diagnostic Code 9411 (2014). 4. The criteria for an evaluation in of 20 percent, but no higher, for right shoulder strain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5019, 5200, 5201 (2014). 5. The criteria for a compensable schedular disability rating for burn residuals, numbness of left 2nd and 3rd fingers, without scars have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3; 4.118, Diagnostic Code 7805; 4.124a, Diagnostic Code 8714 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014). Standard letters sent to the Veteran in November and December 2011 satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained. Post-service private and VA treatment records have also been received. The Veteran has not notified VA of any existing private or VA treatment records outstanding. There is no indication that there are any outstanding Social Security Administration records. The Veteran was provided VA medical examinations for his claimed disabilities in April and September 2012, and March 2014. These examinations are sufficient evidence for deciding the claims for service connection and the rating claims, as they are consistent with and based upon consideration of the Veteran's prior medical history, describe the claimed symptomatology in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. Thus, VA's duty to assist has been met. II. Service Connection Legal Criteria In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required if the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A necessary element to establish entitlement to service connection is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The requirements of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is available for conditions listed under 38 C.F.R. § 3.309(a), which does not include any of the claimed disabilities on appeal. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Low Back Disability An April 2009 service treatment record contains a problem list that includes lower back pain. A June 2009 service treatment record shows that the Veteran noted he was taking OxyContin for pain relief of his shoulder and prior back injury. That record contains a finding regarding the back of tenderness on palpation of the lower back of the right and left paraspinal regions. At that time examination showed no swelling. That report contained no assessment of a low back condition. Later service treatment records include problem lists that include a number of physical complaints including complaints of low back pain; back pain between the shoulders; shoulder pain; cervicalgia; chronic back pain; and chronic pain syndrome. None of the later service treatment records, on review of musculoskeletal system, contain an assessment of any abnormalities referable to the lumbar spine or low back. The report of an April 2012 VA examination of the thoracolumbar spine for back in which the Veteran reported that he was a medic in the Army and while lifting a patient he tweaked his back. The Veteran reported complaints that his back gets tight when he stands for a long period of time. The examiner noted that the Veteran had been diagnosed with low back strain in 2009 but that no imaging was done. The examiner performed a clinical examination of the Veteran and noted observations in detail. Range of motion (ROM) was essentially normal, and repetitive use testing was performed with no additional loss of range of motion. Functional loss of less movement than normal on extension was due to pain on movement. The Veteran had no localized tenderness or pain on palpation and no guarding or muscle spasm of the thoracolumbar spine. For all parts tested, muscle strength was normal, reflex examination was normal, straight leg testing was negative and there was no radicular pain or other sign or symptom of radiculopathy. There were no other neurologic abnormalities or related findings; and the Veteran did not have intervertebral disc syndrome (IVDS) symptoms. Imaging studies of the thoracolumbar spine showed no arthritis, vertebral fracture, or any other significant test findings. X-ray examination was normal. In sum, the report contains no diagnosis pertaining to a current chronic low back condition. The record does not contain any service treatment record evidence of any such diagnosed low back disability in service, or any evidence diagnosing any such disability since service. In the absence of proof of such present low back disability, there can be no valid claim for service connection for the claimed disability. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran is competent to attest as to symptoms he has observed, he has not reported any symptoms observed since service that support a later diagnosis by any medical professional. Consequently, as noted previously, a remand for another VA examination in connection with the claim is not necessary under McLendon. As there is no current disability established by the evidence for a low back disability, it is unnecessary to consider whether the claim meet criteria of any other elements of service connection regarding an in-service incurrence or aggravation of a disease or injury; or a causal relationship between a present disability and any disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The preponderance of the evidence is against the claim of service connection for a low back disability; there is no doubt to be resolved; and service connection is not warranted for the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Insomnia The Veteran contends that he has problems with insomnia and that they are related to service. The evidence supports the assertion that he has insomnia or sleep disturbance. However, since the claim was initially made, the Veteran has been awarded service connection for PTSD with major depressive disorder. The salient question is whether he has a separate and distinct disability manifested by insomnia that may be service connected rather than it being a manifestation of the already service-connected PTSD with major depressive disorder. During service a number of service treatment records of psychiatric treatment for PTSD include associated problems listed including problems with sleep. A May 2011 mental health clinic record of treatment in service shows that the Veteran reported ongoing sleep trouble characterized by 30 to 60 minute delay to fall asleep followed by four hours of sleep and then disrupted sleep for about an hour. During an April 2012 VA examination, on Axis I, the examiner diagnosed PTSD; and major depressive disorder, single episode, moderate. The examiner attributed the Veteran's nightmares and sleep disturbance to his PTSD. The examiner also noted that there was some overlap of symptoms, indicating that sleep disturbance was also related to depression. In a June 2013 report of a private evaluation conducted via telephone by Albert H. Fink, Ph.D., HSPP, the Veteran reported he received treatment for polysubstance dependence, PTSD, and trouble sleeping. After evaluation, Dr. Fink diagnosed PTSD, chronic, moderate; major depressive disorder, recurrent, moderate; and polysubstance dependence in remission. Dr. Fink listed associated symptoms, which included chronic sleep impairment. During a March 2014 VA examination, the Veteran reported that he takes medication daily for his anxiety, depression, sleep problems, nightmares and blood pressure. He reported that he had difficulty falling asleep and staying asleep; and that he takes medication to help him sleep about once a week. He reported having occasional panic attacks. In the March 2014 VA examination report's summary of findings, the examiner stated that a review of recent medical records indicates that the Veteran was experiencing some sleeping difficulties related to his diagnosis of PTSD, which, as his symptoms were controlled by medication, caused him mild social and occupational impairment. The symptomatology of the Veteran's claimed insomnia has been linked to a clinical diagnosis of the service-connected PTSD with major depressive disorder. Thus, it is not an undiagnosed illness and the evidence does not show it is part of a medically unexplained chronic multisymptom illness. Therefore, the provisions of 38 C.F.R. § 3.317 are not applicable. The record includes VA and private examination reports that contain medical evidence of examiners consistently associating the Veteran's claimed insomnia to his PTSD with major depressive disorder as sleep disturbance. The Veteran himself has reported nightmares and difficulty falling asleep associated with his PTSD with major depressive disorder. Chronic sleep impairment is a symptom of psychiatric disorders. See 38 C.F.R. § 4.130. The record contains medical evidence, which to the extent the Veteran has insomnia symptoms, link such insomnia symptoms to the service-connected PTSD with major depressive disorder. The evidence does not show a separate and distinct disability manifested by insomnia, one that is not part and parcel to the Veteran's service-connected PTSD with major depressive disorder. Chronic sleep impairment as a symptom of a psychiatric disability is one criterion under 38 C.F.R. § 4.130, the General Rating Formula for Mental Disorders, for evaluating the Veteran's service-connected PTSD with major depressive disorder. Pyramiding of benefits-rating the same disability or manifestation under different diagnostic codes is not allowed. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Therefore, service connection for insomnia associated with the Veteran's service-connected PTSD is not warranted. As such, the preponderance of the evidence is against the claim of service connection for insomnia; there is no doubt to be resolved; and service connection is not warranted for the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Disability Ratings Legal Criteria Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). When a disability is not specifically listed in the Rating Schedule, it may be rated under a closely related injury in which the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2014). 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). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is competent to report complaints regarding symptoms capable of lay observation. 38 C.F.R. § 3.159(a)(2). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2015). 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). On evaluating the condition of a service-connected disability, if it is not possible to separate the effects of a service-connected condition from that of a nonservice-connected condition, then 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor; that is, any such ambiguity as to the origin of such signs and symptoms shall be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). If any symptoms cannot be distinguished as between service-connected and nonservice-connected symptomatology, the Board will consider both as service-connected disability. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating is assigned. 38 C.F.R. § 4.7. Evaluation of PTSD with Major Depressive Disorder During the appeal period, the Veteran's service-connected PTSD with major depressive disorder is evaluated as 30 percent disabling effective from July 21, 2011, under Diagnostic Code 9411. See 38 C.F.R. § 4.130. Under that diagnostic code, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2014). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. Lastly, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. A veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 117. Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, 38 C.F.R. § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Rather VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified with the diagnosis of PTSD with major depressive disorder in DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). The global assessment of functioning (GAF) scale is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994 (DSM-IV)). VA has recently changed its regulations, and now requires use of DSM-5 effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014; and is not applicable to cases certified to the Board prior to that date. 79 Fed. Reg. 45093 (Aug. 4, 2014).) As the Veteran's case was certified to the Board after August 4, 2014, DSM-5 applies, and GAF scores are no longer used in evaluation of psychiatric disorder. Id. However, the examiner's discussion of symptoms associated with any assigned score would still be useful in evaluation of psychiatric disabilities. During the pendency of the appeal since July 21, 2011, the principal medical evidence that is material and most probative to the claim is contained in the reports of VA psychiatric examinations in April 2012 and March 2014. There is also a private medical report of a psychological evaluation in June 2013. These VA examination reports generally included discussions of records review of systems and history of treatment; the Veteran's current complaints; and on examination, findings, diagnoses, and comments on the severity of the disability. The remainder of the treatment records contains no evidence materially inconsistent with the findings of those examinations as they relate to the condition of the Veteran's service-connected psychiatric disability. During an April 2012 VA examination, on Axis I, the examiner diagnosed PTSD; and major depressive disorder, single episode, moderate. The examiner assigned a current GAF score of 60. In this regard, the examiner noted that a GAF of 60 is associated with moderate symptoms or moderate functional impairment. The examiner opined that the Veteran described moderate symptoms but minimal functional impairment. The examiner found that the PTSD with major depressive disorder resulted in nightmares, reactivity to reminders of the war experience, avoidance of thoughts and memories, inability to recall aspects of the trauma, detachment from others, restricted range of affect, sleep disturbance, difficulty concentrating, and irritability. The examiner concluded that the Veteran's level of occupational and social impairment with respect to all mental diagnoses was best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. In the June 2013 report of a private evaluation conducted by telephone communication by Dr. Fink, the Veteran reported he received treatment for polysubstance dependence, PTSD, and trouble sleeping. The Veteran reported a history of polysubstance dependence. He began drinking in the Army. After the second deployment and after hurting his shoulder he began abusing pain killers. He reported he has been in treatment for substance abuse and that he has been clean and sober for over one year. Dr. Fink stated that the Veteran's PTSD symptomatology significantly impacted his social and occupational functioning, such that he has not been able to work for over 10 years, and he is essentially a social isolate. Dr. Fink diagnosed PTSD, chronic, moderate; major depressive disorder, recurrent, moderate; and polysubstance dependence, in remission. The June 2013 report lists symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgement, impaired abstract thinking, disturbance in motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. Regarding the ability to do work-related activities (mental), Dr. Fink indicated that due to mental problems, three or more days per month the Veteran would have to miss of work, have to leave work, or have trouble with concentration and not be able to stay focused to simple repetitive tasks. The report concluded with an opinion that the Veteran's level of occupational and social impairment regarding all mental diagnoses was best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. During a March 2014 VA examination, the Veteran reported that he takes medication daily for his anxiety, depression, sleep problems, nightmares and blood pressure. He reported that he had difficulty falling asleep and staying asleep; and that he takes medication to help him sleep about once a week. He reported having occasional panic attacks. The Veteran reported that he lived with his parents for the past year since his wife left him. He reported that he attempted to attend school but he withdrew due to pressure and anxiety. He reported having difficulty with jobs since service due to his PTSD and depression. The examiner observed that the Veteran had good personal hygiene; his sensorium was clear and he was oriented to person, place, time and situation. He was often evasive in the interview and his symptom reports were vague and still vague on follow-up questioning. His eye contact was normal as was his speech quantity and quality. His thought processes were logical and coherent, without preoccupations, delusions, or obsessions. He denied hallucinations. His affect was euthymic. In the March 2014 VA examination report's summary of findings, the examiner stated that a review of recent medical records indicated that the Veteran was experiencing some sleeping difficulties related to his diagnosis of PTSD with major depressive disorder that caused him mild social and occupational impairment, as his symptoms were controlled by medication. The examiner also indicated that Veteran's medical records indicated the following. The Veteran was a mentor in a drug addiction program and coached wrestling; and a March 2014 treatment record showed that a treating psychiatrist noted the Veteran was doing well, and was being active physically and socially. Also, in September 2013, a counselor noted that the Veteran was feeling better on his new medication and had more energy, and had no sadness over his wife leaving. The medical evidence does not show symptoms resulting in impairment more nearly approximating the criteria for a 50 percent rating. First, the clinical evidence contained in the June 2013 private evaluation report is somewhat inconsistent in that Dr. Fink characterized the Veteran's PTSD and major depressive disorder as moderate in the diagnosis, but summarized the Veteran's psychiatric disability elsewhere as having deficiencies in most areas such as to include work, school, family relations and other such areas. It should be noted in this regard that a later VA examiner elicited from the Veteran that he was a mentor in a drug addiction program and also coached wrestling. Other evidence shows that the Veteran was being active socially. Notably, this evaluation was conducted by telephone and apparently without benefit of any review of the clinical record contained in the claims file. This report is also inconsistent with the other two psychiatric evaluations conducted in April 2012 and June 2013, and other treatment records. Therefore, the June 2013 private evaluation report lacks probative value as to the findings regarding the severity of the Veteran's PTSD with major depressive disorder. The earlier VA examination in April 2012 found moderate symptoms and moderate or minimal functional impairment. The examiner opined that the Veteran's psychiatric disability was best characterized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The March 2014 VA examiner made similar findings, basically that the Veteran was experiencing some sleeping difficulties due to the psychiatric disability, that caused mild social and occupational impairment; and these were controlled by medication. Importantly, none of the probative evidence reflects occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Accordingly an initial schedular disability rating in excess of 30 percent for the Veteran's PTSD with major depressive disorder is not warranted. The preponderance of the evidence is against the grant of a higher schedular disability rating for that disability throughout the appeal period; there is no doubt to be resolved; and a higher schedular disability rating is not warranted at any time during the appeal period. Schedular Evaluation of Right Shoulder Strain During the appeal period, the Veteran's service-connected right shoulder strain is evaluated as 10 percent disabling effective from July 21, 2011, under Diagnostic Code 5019-5201. That hyphenated code reflects that the disability is evaluated analogously as bursitis (5019) which is evaluated as degenerative arthritis (5003) on the basis of limitation of motion of the arm (5201). See 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5019, 5201. Under Diagnostic Code 5003, when the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for limitation of motion with satisfactory evidence of painful motion. Also with any form of arthritis or periarticular pathology, painful motion is factor to be considered as the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's right arm is the major upper extremity. Limitation of motion of the shoulder is rated under either Diagnostic Code 5200 or 5201. To warrant a rating under Diagnostic Code 5200, there must be ankylosis of the scapulohumeral articulation, which is not shown and thus evaluation under that code is not applicable. Under Diagnostic Code 5201, the criterion for a 20 percent rating is limitation of motion of the arm at shoulder level. The criterion for a 30 percent rating is limitation of motion of the major arm midway between side and shoulder level. The criterion for a 40 percent rating is limitation of motion of the major arm to 25 degrees from the side. During an April 2012 VA examination of the right shoulder, the examiner noted a diagnosis of right shoulder strain was made in 2002. The Veteran reported complaints that his right shoulder bothers him but he had not seen anyone for treatment since discharge from service in July 2011. The Veteran did not report any flare-ups. The report noted that X-ray evidence dated in October 2010 showed degenerative joint disease of the right shoulder; and that the Veteran's right hand is the dominant side. On range of motion study, right shoulder flexion was to 155 degrees (normal endpoint noted to be 180 degrees). Objective painful motion was noted at 155 degrees. Right shoulder abduction was to 155, with objective pain at 155 degrees. The Veteran was able to perform repetitive use testing with three repetitions; with post-test range of motion to 155 degrees for flexion and abduction. The Veteran did not have additional limitation of range of motion of the shoulder/arm following repetitive use testing. The Veteran had functional loss or functional impairment of the shoulder and arm with contributing factors of less movement than normal and pain on movement. The right shoulder did not have localized tenderness or pain on palpation of joints, soft tissue, or biceps tendon of the right shoulder, and the Veteran had no guarding of the shoulder. The Veteran had 5/5 strength (normal) for right shoulder abduction and forward flexion. There was no ankylosis of the glenohumeral articulation of the right shoulder. Hawkins' impingement test, empty-can test, external rotation/infraspinatus strength test, and lift-off subscapularis test, were all negative. The report noted that there was a past history of mechanical symptoms (clicking, catching) on the right; and of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint of infrequent episodes on the right. The crank apprehension and relocation test was negative. The report recorded that on examination, the Veteran did not have an AC joint condition or other impairment of the clavicle or scapula: no malunion or nonunion of clavicle or scapula; and no dislocation. There was no tenderness on palpation of the AC joint, and cross-body adduction test was negative. The Veteran had not had any total shoulder joint replacement. The Veteran did have arthroscopic or other shoulder surgery: right shoulder labral repair in 2002, but no residual signs or symptoms due to the surgery. The report records that the Veteran did not have any scars or other pertinent physical findings, complications, conditions, signs or symptoms related to the right shoulder disability. The right shoulder disability was not productive of functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The report recorded that imaging studies of the right shoulder did not show degenerative or traumatic arthritis documented. The examiner opined that the right shoulder condition did not impact the Veteran's ability to work; and commented that X-rays of the right shoulder were normal. With resolution of reasonable doubt in the Veteran's favor and in light of the complaints of painful motion and objective range of motion findings, functional impairment, and his lay statements regarding his shoulder symptoms, entitlement to a 20 percent rating is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The evidence supports the assignment of a 20 percent evaluation for the Veteran's right shoulder disability for the entire period on appeal. However, even acknowledging that the Veteran's pain may at times result in additional functional loss than that objectively demonstrated, and even when pain is considered, a higher rating on the basis of limitation of motion is not warranted. There is no evidence of any ankylosis of the scapulohumeral articulation. See 38 C.F.R. § 4.71a, Diagnostic Code 5200. The evidence also does not show evidence of impairment of the humerus such as loss of head, nonunion, fibrous union of the humerus; or recurrent dislocation of at the scapulohumeral joint, or malunion of the humerus. 38 C.F.R. § 4.71a, Diagnostic Code 5202. The evidence also does not show impairment of the clavicle or scapula including dislocation, nonunion or malunion. 38 C.F.R. § 4.71a, Diagnostic Code 5203. Given these objective findings, a 20 percent rating is warranted for the entire appeal period; and the preponderance of the evidence is against a finding that the Veteran's right shoulder disability results in disability meeting the criterion for a higher rating. Schedular Evaluation of Burn Residuals, Left 2nd and 3rd Fingers During the appeal period, the Veteran's service-connected burn residuals, numbness of left 2nd and 3rd fingers, without scars, is evaluated as zero percent disabling effective from July 21, 2011, under Diagnostic Code 7801-8714. That hyphenated diagnostic code reflects that the service-connected burn scar disability (7801) is evaluated on the basis of neuralgia of the musculospiral nerve (8714). See 38 C.F.R. §§ 4.118, 4.124. Skin conditions are evaluated pursuant to diagnostic criteria of the schedule of ratings for skin conditions under 38 C.F.R. § 4.118. Under Diagnostic Code 7801 for scars not of the head, face, or neck, that are deep and nonlinear: areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating. Higher ratings are warranted for scars of larger areas. Under Diagnostic Code 7802, scars not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. A superficial scar is one not associated with underlying soft tissue damage. Under Diagnostic Code 7804, unstable or painful scars warrant 10 percent if there are one or two such scars, and higher ratings for three or more such scars. Under Diagnostic Code 7805, scars are rated under an appropriate code in relation to other effects of the scar not considered under Diagnostic Codes 7800-7804. Neurological disability is ordinarily to be rated in proportion to the impairment of motor, sensory or mental function. Consider especially associated manifestations, including complete or partial loss of use of one or more extremities, disturbances of gait, tremors, visceral manifestations, etc. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See 38 C.F.R. § 4.124. With respect to diseases of the peripheral nerves, the term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the bilateral ratings are to be combined with application of the bilateral factor. See Diseases of the Peripheral Nerves, Schedule of Ratings, 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124a, Diagnostic Code 8714, mild incomplete paralysis of the musculospiral nerve (radial nerve) warrants a 20 percent rating for either side. For the major side a 30 percent rating is warranted for moderate incomplete paralysis warrants; and a 50 percent rating is warranted for severe incomplete paralysis. A 70 percent rating is warranted for complete paralysis; drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity. 38 C.F.R. § 4.124a, Diagnostic Code 8714. During the pendency of the appeal since July 21, 2011, the principal medical evidence that is material and most probative to the claim is contained in the report of a VA scars examination in April 2012. The remainder of the medical treatment records contains no evidence materially inconsistent with the history and findings of that examination as they relate to the condition of the Veteran's service-connected burn residuals, numbness of left 2nd and 3rd fingers, without scars. The report of an April 2012 VA examination shows that the examiner noted that the Veteran had a diagnosis of burn residuals to the left 2nd and 3rd fingers, but indicated that there were no scars found. The Veteran reported a history of a burn injury to the left hand when an oxygen tank caught fire in 2005. The examiner recorded that the service treatment records showed nothing related to the incident, but later notes mention "burns" and "accident caused by fire" in problem lists. The Veteran reported complaints of numbness from the burns involving a small area on the left hand, involving the palmar aspect of the proximal phalanx of fingers 2 and 3 of the left hand. The examiner recorded that he found no scars present; and that the "scars" location was not painful or unstable. There were no deep non-linear scars, and superficial non-linear "scars" area affected approximately 8 square cm of the left upper extremity. The report records that there were no scars causing limitation of function or other conditions, except that the Veteran had a loss of sensation on the palmar aspect of the proximal phalanx of the left fingers 2 and 3. The examiner concluded that there was no scar and no functional impact associated with the disability. As the clinical evidence does not show an associated scar at all, a compensable rating is not warranted under Diagnostic Code 7801; or under Diagnostic Codes 7802 (provides for a 10 percent rating for scars covering an area of 144 square inches); or 7804 (provides compensable ratings for unstable or painful scars). The solitary effect of the Veteran's service-connected burn residuals, numbness of left 2nd and 3rd fingers, without scars, shown objectively is a loss of sensation on the palmar aspect of the proximal phalanx of the left fingers 2 and 3; the examiner concluded that there was no functional impact. On this basis, the Board does not find that the disability approximates mild incomplete paralysis of the musculospiral nerve (radial nerve) so as to warrant a compensable rating under diagnostic criteria for the evaluation of the radial nerve. See 38 C.F.R. §§ 4.31; 4.124a, Diagnostic Code 8714. The preponderance of the evidence is against a finding that the Veteran's the Veteran's service-connected burn residuals, numbness of left 2nd and 3rd fingers, without scars, results in disability meeting the criterion for a higher rating. Other Rating Considerations An extraschedular rating may be provided where: (1) the schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability; (2) the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating is in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The evidence shows that the Veteran's service-connected PTSD with major depressive disorder results in occupational and social impairment; that his right shoulder strain results in painful motion; and that his burn residuals, numbness of left 2nd and 3rd fingers, without scars, results in numbness involving a small area on the left hand, involving the palmar aspect of the proximal phalanx of fingers 2 and 3. The Board finds the rating criteria reasonably describe the Veteran's disability level and symptomatology for these three disabilities. The Veteran's disability picture, including any effects from the symptoms, is contemplated by the Rating Schedule as the criteria for evaluating such disorders consists of impairment levels or sets of associated symptoms. Thus, the assigned schedular evaluations for the three service-connected disabilities are adequate and extraschedular referral is not required. Thun, supra. A claim for a total disability evaluation based on individual unemployability (TDIU) is part of an increased rating claim when such TDIU claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was most recently shown to be unemployed, but he was active physically and socially, was coaching and involved with church, and was planning for school in the future without any evidence or claim that he was unemployable as a result of his service-connected disabilities on appeal. The Board concludes that a claim for TDIU is not raised by the rating issues herein decided. ORDER Service connection for a low back disability is denied. Service connection for insomnia is denied. A disability rating in excess of 30 percent for PTSD with major depressive disorder is denied. A disability rating of 20 percent for right shoulder strain for the period from July 21, 2011 is granted, subject to the statutes and regulations governing the payment of monetary awards. A compensable disability rating for burn residuals, numbness of left 2nd and 3rd fingers, without scars, is denied. REMAND A remand is necessary for the claim of service connection for substance abuse because the Veteran essentially claims that his substance abuse disorder results from his service-connected right shoulder disability and PTSD and from medications taken for these disorders during service. Direct service connection may be granted only when a disability was not the result of his or her abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301. Although a substance abuse disability cannot be service connected on the basis of its incurrence or aggravation in service, the law does not preclude a veteran from receiving compensation for a substance abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability. Pursuant to Allen v. Principi, a claimant is only entitled to secondary service connection if the claimant can "adequately establish that the alcohol or drug abuse disability is secondary to or is caused by a primary service-connected disorder." Such benefit would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Service treatment records show the Veteran was treated during service for his right shoulder disability including narcotic medication for pain. He was seen in February 2011 on an outpatient basis at the mental health-substance abuse clinic as a self-referral, due to using his pain medications in larger quantities than prescribed; the assessment was (1) opioid dependence and (2) amphetamine dependence. When seen at the emergency room in March 2011 his problems list included right shoulder symptomatologies including pain, chronic pain syndrome, depression, with anxiety, and general anxiety disorder and the active medications list included Amphetamine Salt Combo, Duloxetine HCl, Oxycodone-Acetaminophen, Lorazepam, Diphenhydramine HCL, and Haloperidol. An April 2011 mental health clinic record shows a similar list of prescribed medications, and assessments of PTSD; history of alcoholism; and opioid dependence. The Veteran was admitted and treated in March and April 2011 for uncontrolled use of opiates and amphetamines. At discharge the diagnosis on Axis I was opiate/amphetamine dependence. On Axis III, the diagnosis was right shoulder pain, hypertension. Discharge medications listed included Duloxetine, Clonidine, Remeron, Naproxen, with the plan to continue these medications. Subsequent service treatment records show continued problems in service with chronic: alcoholism; history of alcoholism; PTSD; amphetamine dependence; opioid dependence; various right shoulder symptomatologies including joint pain; chronic pain and chronic pain syndrome; and depression. Diagnoses on Axis I included PTSD, chronic; alcohol Dependence, early full remission; and opioid dependence, early full remission. An active medication list in July 2011 included Mirtazapine, Amphetamine Salt Combo; and Oxycodone-Acetaminophen. In an April 2012 VA examination the Veteran reported that after his second deployment he began abusing pain medications prescribed for his shoulder pain. He was also abusing amphetamines prescribed to treat the sedation caused by the pain medication. He reported that currently he used no pain medication other than occasional non-steroidal anti-inflammatory medication; and he had not ingested alcohol for 14 months, and he participated in a recovery program. In the June 2013 report of a private evaluation, Dr. Albert H. Fink, Ph.D., MSPP, diagnosed PTSD; major depressive disorder; and polysubstance dependence in remission. Dr. Fink opined that the evidence suggests that more likely than not substance dependence (now in remission) is reflective of the Veteran's responses to service connected events. Presently, there is no clear opinion on the question of the likelihood that any chronic substance abuse condition (even if in remission) is proximately due to or the result of a service connected disability, and not merely the result of the Veteran's abuse of alcohol or drugs in service. Although the Veteran's file suggests his substance abuse disorder is currently in remission, the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and service connection may be granted even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Whereas the Veteran has shown medical evidence of a disability and is shown to have service-connected disability to which the claimed disorder may be secondary, he has shown a prima facie case for secondary service connection and VA examination is warranted. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated his substance abuse disorder. If the Veteran identifies any relevant treatment records that are not currently associated with his VA file, such records should be obtained. 2. Thereafter, the Veteran should be afforded a VA examination to determine the nature and etiology of any chronic substance abuse conditions that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should identify all current substance abuse disorders, including any present but in remission. For each diagnosis identified, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is causally or etiologically due to any service-connected disability to specifically include the Veteran's PTSD with major depressive disorder and his right shoulder strain; to include as due to any prescribed medication taken during or since service for service-connected disability. For any substance abuse disorder currently in remission, the examiner should identify how long the disorder has been in remission and should also identify any existing physical residuals of such disorder. 3. Then, readjudicate the appeal. If a benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs