Citation Nr: 1121691 Decision Date: 06/03/11 Archive Date: 06/09/11 DOCKET NO. 06-04 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for lumbosacral strain associated with Schmorl's nodes, currently evaluated as 10 percent disabling. 2. Entitlement to an increased initial rating for right shoulder impingement syndrome, rated as noncompensably disabling since February 15, 2005, and as 10 percent disabling since February 2, 2010. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to November 1984 and from October 1989 to February 1998. This case comes before the Board of Veterans Appeals (Board) on appeal from a decision rendered by the North Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA). These matters were previously remanded by the Board in December 2009. Following the completion of additional development, in April 2010, the RO granted a 10 percent rating for the service-connected right shoulder disability but continued the denial of the claim for an increased rating for the lumbosacral strain disability. FINDINGS OF FACT 1. Prior to February 2, 2010, lumbosacral strain with Schmorl's nodes is manifested by isolated mild back pain and forward flexion of the thoracolumbar spine to 90 degrees and combined range of motion of the thoracolumbar spine greater than 120 degrees, without evidence of separately compensable neurological symptoms, muscle spasm, or abnormal spinal contour. 2. Since February 2, 2010, lumbosacral strain with Schmorl's nodes is manifested by objective evidence of pain on motion, and forward flexion of the thoracolumbar spine limited to 45 degrees. 3. Prior to February 2, 2010, right shoulder impingement syndrome has been manifested by arm motion greater than 90 degrees and without x-ray evidence of arthritic changes. 4. Since February 2, 2010, right shoulder impingement syndrome has been manifested by objective evidence of pain on motion, manifested by arm motion be shoulder level and 120 degrees. Limitation of arm motion to shoulder level is not demonstrated. 5. While the service-connected low back and right shoulder disabilities impact the Veteran's ability to maintain employment as a mechanic and truck driver, the evidence does not show that he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. CONCLUSIONS OF LAW 1. Effective February 2, 2010, but not earlier, the criteria for a 20 percent rating for lumbosacral strain with Schmorl's nodes are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2010). 2. The criteria for an increased initial rating for right shoulder impingement syndrome, rated as noncompensably disabling since February 15, 2005, and as 10 percent disabling since February 2, 2010, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5200, 5201, 5202, 5203 (2010). 3. The criteria for a TDIU have not been met, to include on an extraschedular basis. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (the VCAA) With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (the Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Veteran was provided a VA notice letter in April 2005. In this letter, VA explained the criteria for service connection and for claims for increased ratings and informed the Veteran of his responsibility to identify relevant evidence and of the shared responsibility to obtain identified relevant evidence for inclusion into the Veteran's claims file. The Veteran's claim for a higher initial rating for right shoulder impingement syndrome arises out of a claim for service connection. Where, as here, service connection has been granted and the initial rating has been assigned, the claim of entitlement to service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). In a December 2006 correspondence, VA described the criteria for total disability evaluations based on individual unemployability (hereinafter TDIU). In addition, it described the manner in which VA assigns disability ratings and effective dates. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records are in the claims file. The Veteran identified relevant VA treatment records for the claimed disabilities, and those records have been obtained and associated with the claims file. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2009). The Veteran was provided VA examinations in June 2005, January 2007, and February 2010. The examination reports referenced the Veteran's past medical history, recorded his current complaints, included appropriate physical examination findings, and contained diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that the examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 38 C.F.R. § 4.2 (2009). Finally, in the December 2009 remand directive, the Board requested that the Veteran clarify his hearing preference. He did so and indicated he did not want a hearing. (See July 2010 statement.) In addition, the Board directed that the RO readjudicate the claim after considering additional evidence and to consider whether the criteria for TDIU were met. In an April 2010 supplemental statement of the case, the RO accomplished these actions. Based on these efforts, the Board finds that there has been substantial compliance with its remand directive. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield, supra. II. Increased Rating Claims 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.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may 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. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that 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. When evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id., at 206. A. Low Back Disability The Veteran's service treatment records reflect that he was treated for low back pain on several occasions. In a March 1999 decision, the RO granted service connection for lumbosacral strain associated with Schmorl's nodes. An initial 10 rating was assigned, effective February 24, 1998. In February 2005, the Veteran filed a claim seeking an increased rating for the low back disability. The Veteran's service-connected lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 [lumbosacral or cervical strain]. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Here, the evidence consists of the VA outpatient treatment records, the results of VA examinations in June 2005, January 2007, and February 2010, and various lay statements of record. The Board has considered such, but finds that prior to February 2010, the criteria for an evaluation in excess of 10 percent have not been met. First, in terms of the Veteran's low back motion, his range of motion during this time is consistent with that completed by the 10 percent rating assigned. For instance, on VA examination in June 2005, he was able to produce 0-90 degrees flexion, 0-10 degrees extension, 0-20 degrees right and left bending, and 0-30 degrees right and left rotation. Similar results were documented on examination in January 2007. At such time, he performed flexion to 90 degrees, extension to 20 degrees, right and left bending to 30 degrees, and right and left rotation to 30 degrees. In addition, there were no findings of separate neurologic symptomatology, nor was there evidence of muscle spasms, abnormal gait or abnormal spinal contour. Additionally, there were no reports of any flare-ups, there was no pain with motion, and the January 2007 VA examiner noted that the Veteran's reactions on examination pointed to overreaction and malingering. See 38 C.F.R. § 4.40, 4.45. Rather, even after considering the Veteran's self reports of pain, the January 2007 examiner characterized the disability as "mild" and consisting of "age-appropriate changes." The VA outpatient treatment records during this period only show isolated reference to the low back condition and do not support the claim for a higher disability rating. The lay statements, from a former work colleague and supervisor pertain the Veteran's condition prior to the initiation of the claim. They are relevant to the extent that they show that the low back and shoulder condition impacted the Veteran's ability to work as a mechanic or a truck driver, but they do not serve to substantiate the claim for a rating in excess of 10 percent. The evidence obtained during VA examination in February 2010, however, shows a worsening disability picture and includes clinical findings compatible with a 20 percent evaluation. In addition, the examination does not include findings which call into question the Veteran's credibility. For instance, the Veteran was only able to flex the low back from 0-45 degrees. Extension was limited to 15 degrees, while he continued to be able to bend and rotate to 30 degrees. While there was no evidence of muscle spasms, abnormal curvature of the spine, loss of musculature, or neurologic findings, the limitation in flexion supports the assignment of a 20 percent rating. While a 20 percent rating is warranted, even after considering any functional loss due to pain, the evidence does not nearly approximate the criteria for a rating in excess of 20 percent. For instance, forward flexion of the thoracolumbar spine was not 30 degrees or less, nor was there evidence of ankylosis of the entire thoracolumbar spine as contemplated by an evaluation in excess of 20 percent. For the reasons discussed above, prior to February 2010, the evidence does not more closely approximate the criteria for a higher rating, and the preponderance of the evidence is against the claims for higher rating. Since, February 2010, the evidence supports the assignment of a 20 percent rating, but not higher. B. Right Shoulder Disability The Veteran's service treatment records reflect treatment for a right shoulder strain. In the June 2005 decision on appeal, the RO granted service connection for right shoulder impingement syndrome and assigned an initial noncompensable (0 percent) disability evaluation. During the course of the appeal, effective February 2, 2010, the RO assigned a 10 percent disability rating. The disability was initially rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201 and is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5201, a 20 percent rating is for assignment if there is limitation of motion of either arm to shoulder level, or for limitation of motion of the minor arm to midway between the side and shoulder level. A 30 percent rating is for assignment if there is limitation of motion of the major arm to midway between the side and shoulder level or limitation of motion of the minor arm to 25 degrees from the side. A 40 percent rating is for assignment if there is limitation of motion of the major arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5010 pertains to traumatic arthritis. Under such, arthritis, due to trauma, substantiated by X-ray findings, will be rated as degenerative arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If the limitation of motion is noncompensable, 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. There are other potentially applicable Diagnostic Codes. For instance, impairment of the humerus, with recurrent dislocation of the major or minor shoulder at the scapulohumeral joint, is assigned a 20 percent evaluation with infrequent episodes of dislocation and guarding of movement only at shoulder level. A 30 percent evaluation is assigned with frequent episodes and guarding of all arm movements, if the major arm is affected. Ratings in excess of 30 percent are assigned for the major or minor shoulder in cases where there is fibrous union, nonunion (false flail joint), or loss of the head of the humerus (flail shoulder). 38 C.F.R. § 4.71a, Diagnostic Code 5202. A maximum 20 percent rating is available for impairment of the clavicle or scapula manifested by malunion, nonunion or dislocation. 38 C.F.R. § 4.71a, Diagnostic Code 5203. Full range of motion of the shoulder is measured from 0 degrees to 180 degrees in forward elevation (flexion), 0 degrees to 180 degrees in abduction, 0 degrees to 90 degrees in external rotation, and 0 degrees to 90 degrees in internal rotation. 38 C.F.R. § 4.71, Plate I (2010). Here, on VA examination in June 2005, the Veteran reported stiffness and fatigability of the shoulder. Flare-ups of pain occurred whenever he lifted too much or overexerted himself. An x-ray examination, however, did not reveal evidence of arthritis. On physical examination, he could flex the arm from 0-180 degrees, abduct to 180 degrees, perform external and internal rotation to 90 degrees. The examiner stated that the motions would not increase with pain upon repetitive motion and the joint was not painful through the range of motion. These findings do not support the assignment of a compensable rating. In short, with full pain free motion and without arthritic changes, the criteria for a 10 percent rating are not met. An October 2006 VA outpatient treatment records noted the Veteran's report that the right shoulder condition was getting worse. No physical examination was performed until the Veteran underwent additional VA examination in January 2007. At such time, he described rotator cuff pain. The physical examination revealed a positive impingement test. Significantly, the examiner believed the Veteran was exaggerating his symptoms. For instance, while he only lifted his arm to 90 degrees, the examiner later witnessed the Veteran lift the arm to 160 degrees. X-ray did not reveal arthritis. As such, these findings do not support the assignment of a compensable rating. VA outpatient treatment records in 2009 note complaints of right shoulder pain and treatment with pain medication. They do not include x-ray examination findings or evidence to suggest that arm motion is limited to shoulder level. On VA examination in February 2010, the Veteran reported constant shoulder pain and difficulty conducting most over-head activities. The physical examination revealed active flexion and abduction to 90 degrees with normal external and internal rotation. There was no crepitus on range of motion and no fatigue with repetition. However, the examiner noted that upon distraction the Veteran was able to flex to 120 degrees. The examiner reviewed 2009 x-ray results and did not report arthritis but did note evidence of a previous extraarticular fracture. While the Veteran is assigned a 10 percent rating since February 2010, the Board has reviewed the record for evidence that the disability more nearly approximates the criteria for a 20 percent rating. Unfortunately, the weight of the evidence is against the claim. While the arm was initially limited to shoulder level, the examiner described motion to greater than 120 degrees. Even after considering any functional loss due to pain, the evidence does not support the assignment of a 20 percent rating. Additionally, the arm is not shown to result in frequent dislocations or any non-union. Given the Veteran's limited arm motion and objective evidence of pain on motion, the 10 percent rating assigned, but not higher, is appropriate. Therefore, the Board finds that an initial compensable rating or a rating in excess of 10 percent since February 2010 is not warranted. C. Extra-Schedular Consideration Finally, the rating schedule represent as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2010). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1). (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. As noted above, the Veteran's low back and right shoulder disabilities result in some impairment, but such impairment, as explained above, is contemplated by the pertinent rating criteria. The rating criteria reasonably describe the disabilities. Hence, the first Thun factor is not met and referral for consideration of an extraschedular rating is, therefore, not warranted. D. Consideration of TDIU In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability, and is part of the claim for an increased rating. Here, the Veteran has repeatedly asserted that his right shoulder and low back preclude his ability to maintain employment as a mechanic or as a truck driver. (See e.g. January 2009 statement.) Under the applicable criteria, all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. §§ 3.340(a)(1), 4.15. In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation purposes may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted to the Director of the Compensation and Pension Service for extraschedular consideration. As noted above, a TDIU may be awarded on either a schedular or extraschedular basis. As explained immediately below, in this case, only the extraschedular basis need be considered. Here, the Veteran is service-connected for hearing loss, rated as 30 percent disabling, tinnitus, rated as 10 percent disabling, a stomach ulcer, rated as 10 percent disabling, lumbosacral strain, rated, pursuant to this decision, as 20 percent disabling, and a right shoulder disability, rated as 10 percent disabling. A combined rating of 50 percent is in effect. Accordingly, he does not meet the criteria for consideration of TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). In accordance with 38 C.F.R. § 4.16(b), the Board has considered whether the Veteran's claim for a TDIU should be referred to the Director of the Compensation and Pension Service for extraschedular consideration. While there is evidence that the Veteran is restricted from performing work as mechanic or a truck driver as a result of service-connected, the evidence does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. Rather, when reviewing the Veteran's low back and right shoulder disability, the VA examiner in February 2010 specifically opined that the Veteran could perform gainful employment. The Board does not disagree that the Veteran's service-connected low back and right shoulder disabilities impact his employability and are debilitating in many ways. The Board however believes that the symptomatology associated with the service-connected disabilities is appropriately compensated via the disability ratings currently assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. Accordingly, the evidence of record, taken as a whole, portrays the Veteran as having employment-related problems caused by his service-connected disabilities. Crucially however, the evidence does not indicate that he cannot engage in substantially gainful employment due to such problems. In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim for a TDIU. In particular, referral to appropriate authority for consideration on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b) is not warranted, and the benefit sought on appeal is accordingly denied. ORDER Effective February 2, 2010, but not earlier, a 20 percent rating, for lumbosacral strain associated with Schmorl's nodes is granted. An initial compensable rating prior to February 2, 2010, and a rating in excess of 10 percent since February 2, 2010, for right shoulder impingement syndrome is denied. Entitlement to TDIU is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs