Citation Nr: 1202167 Decision Date: 01/20/12 Archive Date: 01/30/12 DOCKET NO. 09-36 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating in excess of 20 percent for cervical disc disease. 2. Entitlement to a rating in excess of 20 percent for residuals of strain of the left rhomboid muscles. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1955 to November 1957. This matter is before the Board of Veterans' Appeal (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board notes that the Veteran's claim for higher rating for residuals of strain of the left rhomboid muscles was originally characterized as a disability affecting the right rhomboid muscles. However, in a February 2011 rating decision, the RO found clear and unmistakable error in the November 2005 rating decision granting service connection for residuals of strain of the right rhomboid muscles, and characterized the disability as residuals of strain of the left rhomboid muscles. The Board has characterized the Veteran's claim accordingly. For reasons expressed in more detail below, the Board has recharacterized the appeal as encompassing-in addition to claims noted above-a claim for a TDIU due to service-connected disabilities, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) (as reflected on the title page). In September 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board's decision addressing the claims for higher ratings for cervical disc disease and residuals of strain of the left rhomboid muscles is set forth below. The TDIU claim is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. The Veteran's service-connected cervical disc disease has been characterized by complaints of limitation of motion, pain, and functional impairment most closely approximating favorable ankylosis; there is also no evidence of separately ratable neurological impairment or disc impairment. 2. The Veteran's service-connected residuals of strain of the left rhomboid muscles has been characterized by complaints of pain, weakness, and decreased motion of the left arm, but with a range of motion of the arm greater than 25 degrees from the side. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent for cervical disc disease are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for revised DCs 5235-5243(as in effect since September 26, 2003)). 2. The criteria for a rating in excess of 20 percent for residuals of strain of the left rhomboid muscles are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a pre-rating letter dated in June 2008 provided notice to the appellant regarding what information and evidence is needed to substantiate the claims for higher ratings, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter specifically informed the Veteran to submit any evidence in his possession pertinent to the claims herein decided, and also provided the Veteran with information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. Also, a February 2009 post-rating letter set forth the criteria for higher ratings. After issuance of the above-described notice, the May 2011 supplemental statement of the case reflects readjudication of the claims for higher rating. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claims herein decided. Pertinent medical evidence associated with the claims file consists of service and VA treatment records, Social Security Administration (SSA) records, and the reports of various VA examinations. Also of record and considered in connection with the appeal is a transcript of the Veteran's September 2011 Board hearing, as are various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the matters on appeal is warranted. The Board acknowledges the Veteran's contention that the examinations provided were inadequate. However, the Board's review of these examination reports reflects that the examiners considered the Veteran's relevant medical history, noted the Veteran's current complaints, performed a complete physical examination, including range of motion testing and x-rays, and provided a diagnosis and assessment of the severity of the Veteran's service-connected disabilities. Thus, the Board finds that the noted examination reports are adequate for adjudication purposes. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual Background Pertinent to his claims for higher rating, the Veteran was afforded a VA examination in July 2008. On examination, the Veteran reported intermittent sharp pain on the left side of his neck and radiating down his left arm to his hand, and occasionally radiating down his right arm. He also indicated radiation of his neck pain down his back to his right hip. Tingling and numbness in the left hand were also present. He indicated that he experienced flare-ups once per week, which subsided within 2 hours of taking a muscle relaxant and lying down to sleep. He denied any bladder, bowel, or erectile dysfunction. He had not worn a neck brace. His neck pain limited his walking to less than a quarter of a mile and his standing to less than 20 minutes. He had not had any incapacitating episodes of neck pain requiring physician-prescribed bed rest in the past year. The Veteran also indicated that his wife assisted him with putting on and taking off his shoes and socks. He occasionally required assistance with getting in and out of the tub. He could not reach overhead with his arms. He was independent with ambulation without an assistive device. It was noted that the Veteran retired in 2000 after neck surgery, due to his inability to turn his head to the left side. On physical examination, there was diffuse left paracervical and pariscapular muscle tightness and tenderness. The Veteran maintained his head in a forward-flexed position on his neck. Neck range of motion was to 20 degrees extension, 40 degrees forward flexion, 10 degrees lateral flexion to the right, 5 degrees of lateral flexion to the left, 30 degrees of rotation to the right and 15 degrees rotation to the left. He grunted at the end of all ranges of motion. After 5 repetitions, range of motion and the painful arc of range did not change, except that rotation to the left decreased to 10 degrees. There was no tenderness to palpation of the shoulder. There was an 18 centimeter well-healed surgical scar along the posterior aspect of the left arm extending from just above the elbow distally. There was no obvious scapular winding on resistance to shoulder abduction or flexion. Shoulder abduction was to 90 degrees bilaterally. Muscle bulk was normal in both arms and forearms, tone was normal in both arms, and circumference was equal in both arms. Sensation was decreased to pinprick in the left arm along the posterior ulnar aspect from the lower upper arm to the mid-forearm. Deep tendon reflects were symmetrical, and strength was 5 out of 5 in shoulder abduction, flexion, elbow flexion and extension, and wrist extension. Hand grips were equal. A cervical spine x-ray revealed extensive fusion C3-C6 and marked disc space narrowing C6-7. The examiner concluded by assigning diagnoses of degenerative disc disease C6-7, status post fusion of C3-6 vertebral bodies, and myofascial dysfunction involving the left paracervical and pariscapular muscles. The examiner commented that the Veteran had moderate impairment in neck and bilateral shoulder range of motion, affecting his functional capacity. There were no physical findings to suggest an active radiculopathy process. The examiner also noted that during a flare-up, the Veteran could have further limitations in his neck and shoulder range of motion, as well as an increase in his pain affecting his functional capacity. He was unable to estimate the additional loss without resorting to mere speculation. A VA outpatient treatment report from August 2008 notes that the Veteran lost his balance and fell about 2 feet onto his left upper back and head. He reported a large bruise on the left side, along with pain in his left neck and upper back region. A CT scan of the cervical spine revealed no fracture or subluxation. Continued left shoulder pain was noted in October 2008. He felt that his mobility in the left arm was decreased. He denied any recent injury to the left shoulder, and also denied numbness or tingling. There was no tenderness to palpation over the cervical spine or trapezius muscles. There was decreased motion of the left shoulder secondary to discomfort, decreased abduction, flexion, and extension. There was no swelling or other deformity at the joint. A neurological examination revealed slightly less grip strength on the left, but sensation was intact. In December 2008, the Veteran complained of increasing cervical spine pain. He noted that the pain mostly radiated into the left shoulder and occasionally into the right shoulder. A cervical spine examination revealed severely limited range of motion. A December 2008 x-ray of the left shoulder revealed no changes from prior studies. There were no fractures or dislocation, and there was mild degenerative spurring on the infraglenoid and inferior humeral head articular margins. There was no significant bone, joint, or soft tissue abnormality seen. A VA outpatient treatment report dated in October 2009 notes that the Veteran had cervical spine disease which significantly limited his ability to rise from a seated position. He was given a motorized chair lift. On VA examination in April 2010, the Veteran reported increasing pain, though he noted no treatment for neck pain except for receiving a few injections and some pain medication. He is right-handed. He described the neck pain as a constant, aching pain that occurred all the time, but intermittently he had sharp pain with increased range of motion. Pain intensity varied from 4 out of 10 to 10 out of 10, and was aggravated by activity and driving and relieved by taking Tylenol or muscle relaxers. Pain was associated with stiffness, fatigue, spasm, and weakness. The Veteran indicated that the pain started in the neck, went to the shoulder, and all the way down the left arm and occasionally into the right arm. It was noted that the Veteran underwent previous cervical spine fusion surgery in 1998. He had good results with restoration of left arm function; however, now the Veteran felt that his pain had increased. He had tried steroid injections that provided temporary relief, and currently took pain medication and muscle relaxers. With respect to carrying out activities of daily living, he needed help with clothing, bathing, and putting on shoes, and with getting out of a chair if he did not have a chair lift near him. He ambulated without assistive device but used a walker at home and used a chair lift to lift himself. There had been no episodes of incapacitation in the last 12 months. However, the Veteran did endorse flare-sups accompanied by stiffness and tightness in the cervical paraspinal muscles approximately 3 times per week. These flare-ups usually lasted 3-4 hours and subsided after that. He reported that he stopped working as a truck driver after his neck surgery. On physical examination, there was no neck swelling observed, but there was mild cervical paraspinal stiffness bilaterally. There was diffuse left paracervical periscapular muscle tightness. He maintained his head in a flexed position. Range of motion testing of the neck revealed flexion to 30 degrees, decreased to 20 degrees after repetition. Extension was to 30 degrees and was unchanaged upon repetition. Left lateral flexion was to 20 degrees and right lateral flexion was to 10 degrees, both unchanged after repetition. Left lateral rotation was to 15 degrees, while it was to 20 degrees on the right; both were unchanged on repetition. The Veteran walked unaided but with an unsteady gait. A neurological examination revealed intact sensation for light touch and pin prick in the arm. Motor coordination was within normal limits, and both upper extremities had normal muscle bulk. The was no tenderness on palpation of either shoulder. There was an 18 centimeter, well-healed surgical scar along the posterior aspect of the left arm extending above the elbow distally. There was no obvious scapular winging. Examination of the left shoulder revealed significant reduction in active range of motion. Forward flexion of the left shoulder was limited to 40 degrees. Active abduction was possible only to 30 degrees. Active internal rotation was to 25 degrees, unchanged after repetition. It was noted that a January 2010 x-ray of the cervical spine revealed normal alignment and fusion of the vertebral bodies from C3-C4 through C5-C6. There was narrowing of the C6-C7 disk space with hypertrophic spurring. There was multilevel facet arthropathy. Diagnoses of severe degenerative disc disease involving C3-C7 and status post cervical fusion surgery with severe degenerative changes and myofascial dysfunction involving the left paracervical muscles were noted. It was noted that the Veteran had moderate impairment in neck and bilateral shoulder range of motion affecting his functional capacity. There were no physical findings to suggest active radiculopathy. There were severe degenerative changes that accounted for decreased range of motion of the neck and shoulder. During flare-up, the examiner noted that the Veteran could have further limitation of range of motion, but he was unable to estimate the additional loss without resorting to mere speculation. There was some objective evidence of decreased range of motion and lack of endurance in the neck secondary to degenerative changes. On VA examination in June 2010, the Veteran reported chronic neck pain and subscapular pain. He indicated that the pain radiated out of the neck into the left arm and into the hand. He also reported numbness and tingling of the fingers. He had not been prescribed bedrest for his neck. He reported that looking up or overhead was painful, and that he had limited ability to turn his head to either side. Activities such as bending or lifting caused increased pain. There was no prescribed bedrest for his neck in the past year. Regarding his activities of daily living, the Veteran reported that his wife had to help him with dressing and putting on his shoes and socks due to difficulty bending over. He also reported limited use of the left arm. He used a cane and back brace. On physical examination, the examiner observed that the Veteran walked with a shuffling-type gait pattern. He used a cane in the right hand. Examination of the neck revealed -5 degrees of extension and flexion from 5 to 35 degrees. Lateral rotation was to 10 degrees on the right and 5 degrees on the left. He had 5 degrees of right lateral flexion but 0 degrees of left lateral flexion. He reported pain and the endpoint of range of motion testing with associated slight grimacing. There was no additional limitation of motion after repetitive motion, or objective evidence of tenderness or spasm. An examination of the left shoulder revealed flexion from 0 to 40 degrees, abduction to 30 degrees, internal rotation to 65 degrees, external rotation to 10 degrees, and extension to 10 degrees. The examiner was unable to evaluate adduction due to limitation of motion of shoulder. He reported pain on all range of motion testing, as well as tenderness to palpation of the shoulder. There was a well-healed scar over the posterior distal aspect of the left upper arm extending over the posterior aspect of the elbow and onto the proximal aspect of the forearm. There was no tenderness to palpation of the rhomboids on either the right or the left. On neurological examination of the upper extremities, estimated strength was approximately 4 out of 5, reflexes were intact, and sensation to light touch was intact. An x-ray of the left shoulder revealed no acute fracture, dislocation, or tendinous calcification. There was very minimal spurring of the head of the humerous. The acromiohumeral space was normal in appearance. An MRI of the shoulder revealed probable tendinosis of the supraspinatus tendon with degenerative changes but no tear. And x-ray of the left humerous indicated fixation of the distal humeral fracture and of the olecranon fracture. An impression of cervical disc disease and left frozen shoulder syndrome with tendinosis was noted. During the Veteran's September 2011 Board hearing, he reported that the range of motion of his neck was severely limited, that he could not raise his left arm, and that he was unable to grip with his left hand. He indicated that he experienced constant pain with occasional flare-ups. He noted that his disabilities caused problems with sitting, standing, sleeping, walking, and performing activities of daily living such as putting on shoes and socks. He indicated that he had home health care 5 days per week. The Veteran also noted that his condition limited his ability to work because he cannot turn his neck and has difficulty getting up out of a chair. III. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). Nevertheless, the Board acknowledges 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, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A. Cervical Disc Disease Historically, in a November 2005 rating decision, the RO granted service connection for a cervical disc disease and assigned a 20 percent rating, effective June 18, 2001. The Veteran filed the current claim for increased rating in May 2008. The criteria for rating all disabilities of the spine are set forth in a General Rating Formula for Diseases and Injuries of the Spine. Under the formula, a 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A maximum 100 percent rating is assigned for unfavorable ankylosis of the entire spine. These criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a (as in effect since September 26, 2003). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation The Board notes that, as a point of reference, standard or normal ranges of cervical spine motion are as follows: forward flexion, from 0 to 45 degrees; extension, from 0 to 45 degrees; right and left lateral flexion, each, from 0 to 45 degrees; and right and left lateral rotation from 0 to 80 degrees, each. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. See 38 C.F.R. § 4.71, Plate V. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Considering the pertinent evidence of record in light of the above, the Board finds that a rating of 30 percent for the service-connected cervical disc disease is warranted. As noted above, under the General Rating Formula, a 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. Here, the service-connected cervical disc disease has been characterized by severe limitation of motion, pain, and significant functional impairment. The Board finds that the symptomatology shown by the record more closely approximates favorable ankylosis, thus warranting a 30 percent rating; there is no evidence of separately ratable neurological impairment or disc impairment. The Board also notes that, under Note (1) of the General Rating Formula, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating for the Veteran's service-connected cervical disc disease. However, such would not be the case here. While the Veteran indicated neck pain radiating to both upper extremities, and in particular down the left arm and to the left hand, neurological testing, including detailed sensory, motor and reflex examinations during the VA examination, was normal, and upper extremity radiculopathy has been specifically denied. As a result, the Board finds that there is no basis for any separate, compensable rating under this provision. Although the rating criteria sets forth rating criteria for intervertebral disc syndrome on the basis of incapacitating episodes, the disability in this case is not shown to involve intervertebral disc syndrome at any time. Moreover, there is no evidence that he has been prescribed best rest for incapacitating episodes. The benefit of the doubt has been resolved in the Veteran's favor to the extent indicated. B. Residuals of Strain of Left Rhomboid Muscles Historically, in a November 2005 rating decision, the RO granted service connection for residuals of strain of the right rhomboid muscles and assigned a 20 percent rating, effective June 18, 2001. As noted above, the RO later recharacterized the disability as residuals of strain of left rhomboid muscles. The Veteran filed the current claim for increased rating in May 2008. In this case, the RO assigned a 20 percent rating for the Veteran's residuals of strain of the left rhomboid muscles pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5201 for limitation of motion of the arm. As the Veteran is right-handed, his residuals of strain of the left rhomboid muscle affect his minor extremity. Under Diagnostic Code 5201, with respect to the minor extremity, limitation of the arm at shoulder level or midway between side and shoulder level warrants a 20 percent rating. A 30 percent rating is warranted for limitation of arm motion at 25 degrees from side. 38 C.F.R. § 4.71a. The Board again notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson, 9 Vet. App. at 7. Considering the pertinent evidence in light of the above, the Board finds that a rating greater than 20 percent for the Veteran's residuals of strain of the left rhomboid muscle is not warranted at any point during the pendency of the appeal. The medical evidence in this case reflects a range of motion of the left arm much greater than 25 degrees from the side, even considering the effects of repetitive use, flare-ups, pain and stiffness. As such, a higher rating is not warranted on the basis of limitation of motion of the arm. The Board has also considered the applicability of other diagnostic codes for rating this disability, but finds that no other diagnostic code provides a basis for higher rating. In this regard, ankylosis, and impairment of the clavicle and scapula is not shown. See 38 C.F.R. § 4.71a. The highest rating available for recurrent dislocation of the humerus and malunion of the humerus, for the minor extremity, is 20 percent, and loss of head, nonunion, and fibrous union of the humerus are not shown. See id. The disability also has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for an increased evaluation for his service-connected left shoulder disability. C. Conclusion The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point pertinent to the claims for increased ratings has the Veteran's cervical spine and left shoulder disabilities been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule 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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, 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 extra-schedular rating. Thun, supra. In this case, the Board finds that schedular criteria are adequate to rate the disabilities under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disabilities. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating of the disabilities under consideration, pursuant to Hart (cited above); and that ratings in excess of 30 percent for cervical spine disease and 20 percent for residuals of strain of the left rhomboid muscles are not in order. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER A rating of 30 percent for cervical disc disease is granted, subject to the law and regulations governing the payment of monetary benefits. A rating in excess of 20 percent for residuals of strain of the left rhomboid muscles is denied. REMAND The Board's review of the claims file reveals that further RO action on the remaining claim for a TDIU is warranted. The Board notes that, under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2011). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards in 38 C.F.R. § 4.16(a). 38 C.F.R § 4.16(b). The Veteran's is service-connected for cervical disc disease and for residuals of strain of the left rhomboid muscles, each rated as 20 percent disabling. However, even if the percentage requirement of 4.16(a) has not been met, entitlement to a TDIU, on an extra-schedular basis, per 38 C.F.R. § 4.16(b), may nonetheless be established, if the Veteran is shown to be unemployable by reason of his service-connected disabilities. In various statements and during the Veteran's September 2011 Board hearing, the Veteran has expressed that his cervical spine and left shoulder disabilities have greatly impacted his ability to function, including his ability to walk or stand for any extended period of time. The record reflects that the Veteran previously worked as a truck driver, but quit working after cervical spine surgery. During the hearing, the Veteran's specifically stated that he could not work due to his service-connected disabilities. SSA records reflect that the Veteran has been in receipt of disability benefits since 1997 with a primary diagnosis of disorders of the back and secondary diagnosis of cervical spondylosis and ruptures disc requiring anterior cervical discectomy. On these facts, the claim for a TDIU is essentially a component of the Veteran's claims for higher rating for his cervical spine and left shoulder disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that where a veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU). The Board notes that, although raised by the record, the RO has not adjudicated a claim for TDIU, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). Under these circumstances, the RO should, after giving the Veteran an opportunity to file a formal claim for a TDIU, and completing the other actions noted below, adjudicate the matter of the Veteran's entitlement to a TDIU, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), in the first instance, to avoid prejudice to the Veteran. See e.g., Bernard v. Brown 4 Vet. App. 394, 393(1995). Prior to adjudicating the claim for a TDIU, the RO should obtain all outstanding VA medical records. The claims file indicates that the Veteran is continuing to receive treatment for his disabilities from the Jackson VA Medical Center (VAMC); the last date of treatment of record is from May 2011. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should from the Jackson VAMC outstanding treatment records, since May 2011, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Also, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2011). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the matter remaining on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should furnish to the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU. 2. The RO should obtain from the Jackson VAMC all outstanding pertinent records of evaluation and/or treatment of the Veteran, to specifically include any records since May 2011. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for a TDIU, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). The RO should explain the type of evidence that is the Veteran's ultimate responsibility to submit. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, the RO should assist him in obtaining additional evidence identified by following current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for a TDIU, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), in light of all pertinent evidence and legal authority. 7. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, to include 38 C.F.R. § 4.16(b), along with clear reasons and bases for all determinations, and afford them an appropriate time period for 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 Supp. 2011). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs