Citation Nr: 1304175 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 09-32 107A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease of the lumbar spine, currently evaluated as 40 percent disabling. 2. Entitlement to an increased rating for impingement syndrome of the right shoulder with residuals of clavicle fracture, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from June 1979 to June 1983, and from September 1983 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted a, 40 percent, rating for degenerative disc disease of the lumbar spine (formerly evaluated as lumbosacral strain and claimed as arthritic pain), effective from October 4, 2007 (date of claim); and denied a rating in excess of 10 percent for impingement syndrome of the right shoulder, with residuals of clavicle fracture (previously evaluated as separation and also claimed as right shoulder numbness, arthritic pain, and thoracic nerve). By November 2009 rating decision, the RO granted a 30 percent rating for impingement syndrome of the right shoulder, with residuals of clavicle fracture, effective from October 4, 2007. The Veteran has continued his appeal for an even higher rating for the service-connected disabilities. AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2009, the Veteran requested a hearing before a Veterans Law Judge. A Travel Board hearing was scheduled at the RO in October 2010. The Veteran failed to report for this hearing. A request to reschedule based on good cause has not been filed. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU rating) is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Effective from October 2007, the Veteran has been in receipt of a TDIU rating. Any consideration under Rice v. Shinseki is rendered moot. The issue of an increased rating for a right shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's degenerative disc disease of the lumbar spine does not result in unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months or comparable functional impairment; and, other than a separately service-connected radiculopathy of the left lower extremity, there is no objective evidence of neurological abnormalities related to the lumbar spine disability. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5235, 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Duties to Notify and Assist Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in December 2007 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines effective dates. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in April 2008. Nothing more was required. It follows that an April 2009 letter readdressing the notice element of how VA determines disability ratings went above and beyond what was necessary. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. The RO has obtained all identified and available treatment records for the Veteran, to include obtaining records from the Social Security Administration (SSA) for him. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Veteran underwent VA examinations in January 2008 and October 2009. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Recognition is given to the fact that it is not clear as to whether the Veteran's claims file was available for review in connection with the examinations. Such is not necessarily fatal in determining the adequacy of a VA examination. The Court has held probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion, not the mere fact that the claims file was reviewed. Nieves- Rodriguez v. Peake, 22 Vet App 295 (2008); see also Gardin v. Shinseki, 613 F.3d 1374 (2010) (noting that neither statute nor regulation requires that a physician review a veteran's medical service record before his or her opinion may qualify as competent medical evidence). Indeed, the examinations were thorough, and well reasoned, and took into account the Veteran's personal history/complaints and include physical findings that mirror those found in the claims file. The Board therefore finds that the examinations were adequate for rating purposes. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) . The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. Such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4. 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. Private treatment records from Foothills Neurology, P.C., revealed that in October 2006, the Veteran was reported to have a history of low back pain and sacroiliac joint disease. He had his first lumbar epidural steroid injection one week prior and had some improvement of his low back pain. He reported that the radicular pain down this left leg had also improved, and that he continued to experience pain only intermittently, and he denied lower extremity paresthesias. In November 2006, he was again seen for low back pain. It was noted that he had had two lumbar epidurals, and the first one helped a little but the second one did not help at all. He reported a severe flare up of back pain when he was standing at work and felt something pop in the right sacroiliac area. Examination showed that the Veteran appeared to be in a lot of pain. In June 2007, examination of the musculoskeletal system revealed spine spasm and tenderness of the lumbar area bilaterally, but the range of motion was okay. Records from the SSA show that the Veteran was found to be disabled, effective July 2007, due to disorders of the back (discogenic and degenerative). Received from the Veteran in October 2007 was a statement in which he indicated his severe lower back pain had continually increased since his separation from the Marines Corp. He reported he had had a series of facet shots and was undergoing a second series of epidural injections per the neurologist. He indicated that if there was no relief this time, he would be sent for a neurosurgical consultation. In a private neurosurgical consultation dated in September 2007, the Veteran reported working as a network engineer at AT&T, and that his pain had been getting worse. It was documented in his chart that his narcotic dosage was going to stay the same, yet his pain levels were increasing, suggesting he was developing a tolerance for these medications. He reported multiple symptoms, including pain and burning in the back. The initial assessment was that the Veteran had a chronic pain syndrome related to chronic musculoskeletal pain and sleep deprivation. In a private neurosurgical consultation dated in November 2007, the Veteran's complained of back pain with radiation into the left lower extremity with occasional right hip pain. He reported that the pain was constant and had progressively gotten worse. He indicated that his symptoms were associated with difficulty sleeping, secondary to discomfort, but he denied weakness, fatigue, clumsiness, and bladder or bowel symptoms. It was noted that he had epidurals in the past without much relief, and did see a chiropractor one and a half years prior which did help somewhat. Examination of the dorsal/lumbar spine revealed full range of motion and slight tenderness to palpation in the left lateral midline. On a VA examination in January 2008, the Veteran reported a gradual worsening of his back symptoms. He endorsed daily low back pain, which radiated down his left leg to his foot. He felt he could walk a maximum of one quarter to one half mile on level ground. When asked about incapacitating episodes of back pain, he reported that they occurred on a weekly basis. He reported having epidural injections in the past without significant benefit. In his work, he experienced difficulty bending, and he had curtailed physical activity in part because of his back. He reported experiencing flare ups which were weather and activity related, that these could last for several days and were characterized by increased pain and limitation of activity. He did not use a back brace. Physical examination showed that the Veteran experience a moderate degree of "motion and pain" while getting on and off the examination table. He could flex to 10 degrees, extend to 10 degrees, laterally flex to 10 degrees, rotate to 15 degrees, with end-of-range pain, but not additionally limited following repetitive use. He had a mild degree of lumbar spine tenderness, and straight leg raising was to 30 degrees on the right and to 20 degrees on the left, both with back pain. His sensory function in both lower extremities was noted to be normal, and his ankle jerk was 1+ on the right and absent on the left. His gait was slow and broad-based. The examiner noted review of an MRI of the lumbosacral spine dated in October 2007, by a private doctor. The diagnosis was degenerative disc disease of the lumbar spine with left lower extremity radiculopathy by clinical and MRI criteria. A private treatment record dated in February 2008, showed that the Veteran was seen for follow up for bulging discs at L4-5 and L5-S1, for which he did not respond to conservative or interventional treatment. He was taking three Percocet per day, but the pain relief was suboptimal. Examination showed that his range of motion of the lumbar spine was limited on both forward flexion and extension. A subsequent private operative record also dated in February 2008 showed that the Veteran underwent a provocative discography, for his preoperative diagnosis of lumbar radicular syndrome. The interpretation of the test was that the provocative discography was positive at all four levels tested, with marked degenerative changes noted, and most pronounced at L2-3, L4-5, and L5-S1. The post-operative diagnosis was diskogenic pain, L2-3, L3-4, L4-5, L5-S1. In an addendum to the follow up report, it was noted that the Veteran was not a candidate for surgery, and the best option to address his low back and left leg pain was spinal cord stimulation. It was noted that the only other option was a long term medication which had not been helpful. In April 2008, the Veteran was again seen for follow up and his low back pain was described as chronic and intractable. It was noted that he had undergone a trial with spinal cord stimulation, but it had failed. The Veteran was advised that all conservative and interventional treatment options had been exhausted, that he was not a candidate for surgery, and that he was likely going to be a candidate for long-acting opiod with some short-acting medicine for breakthrough pain. It was noted that this was likely his best option considering he not only had an inoperable back, but was also status-post multiple shoulder and knee operations as well. A private treatment record dated in November 2008 showed that the Veteran was seen for a follow-up consultation, and it was noted that he had undergone discography which revealed four-level painful discs. He had a failed trial with spinal cord stimulation, and was not considered a candidate for back surgery. It was noted that he had been reasonably comfortable taking Oxycodone 15mg, five times per day, and that his dose had not changed in approximately seven months. Received from the Veteran's wife in April 2009 was a statement in which she described the deterioration she had witnessed in him over the years of their marriage. She indicated that within a week of being married to him, the Veteran had his right shoulder operation, which was not very successful, and that he had another right shoulder surgery in 2002, and was possibly going to have one again in the near future. She indicated that he had constant right shoulder issues. She also reported that the Veteran's most incapacitating injury was his lower back injury, which caused him severe chronic pain and depression. In a statement received in April 2009, J.N.B. reported that the Veteran had pain, severe depression, and a difficult time functioning mentally and physically due to his injuries in service, including his back, shoulder, and knees. J.N.B. indicated that the Veteran had continual pain and issues with his lower back since he was injured in service, and the pain had continued to get worse, and he was unable to perform physical activity and was in pain continually. J.N.B. also contended that the Veteran had numbness and pain in his lower back and shoulder, was unable to perform normal tasks with his right shoulder, and was unable to throw a baseball with his sons. VA treatment records showed that in September 2009, the Veteran was seen for periodic follow up for his chronic medical conditions, including degenerative of lumbar or lumbosacral intervertebral disc, lumbar radiculopathy, and pain in joint involving shoulder region. The assessment included degenerative joint disease of the lumbosacral spine/radiculopathy, and it was noted that he graded his pain 4-5 out of 10 with medications, including Morphine for maintenance and Advil for breakthrough pain. He reported he could not walk any distance, get up and down, ride in a car, or play with kids without having the pain. He requested a back support to help him ambulate. It was noted that a brace support was to be ordered. In a letter statement dated in September 2009, a private doctor, Dr. Robinson, indicated treating the Veteran for lumbar spine degenerative disc disease for nearly two years, and noted his diagnoses including lumbago, sacroiliac joint disease, lumbar spasms, arthritis, bulging disc, and degenerative disc disease. Dr. Robinson indicated that this condition lessened his quality of life, had hindered and caused occupational impairment, was extremely painful, and had caused his major depressive disorder diagnosis. On VA examination in October 2009, the Veteran complained of constant lumbosacral pain, 6 out of 10 on the pain scale, that was aggravated by any movement, as well as by prolonged standing and sitting. It was difficult for him to get comfortable in any position, and he took oral morphine with good relief. He reported that the pain radiated down the left lower extremity to the foot and he could walk approximately 100 yards before needing to rest due to pain. He reported that he had been placed on physician-prescribed bed rest 20 times in the past year, with varying durations. He reported undergoing physical therapy and 12 lumbar steroidal injections with no relief. He claimed he quit his job as a network engineer in July 2007 due to low back and shoulder pain. He reported having difficulty playing with his sons, that his wife helped him put on his shoes and socks, and that his intimacy with his wife had been adversely affected by low back pain. He reported having daily flare-ups of varying frequency and severity during which he claimed he was frequently bedridden. Physical examination revealed thoracolumbar flexion was to 30 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and left and right rotation to 25 degrees with end of range pain, but no decrement due to pain or fatigue following repetitive motion. There was no lumbosacral tenderness or spasm. The diagnosis was degenerative disc disease of the lumbar spine. On a VA peripheral nerves examination in December 2009, the Veteran reported he had low back pain since an injury in service, and that this pain was all the time and prevented him from working. It was noted that the Veteran had stopped working in July 2007 because of his low back pain, and that he was a network engineer and had not had any kind of work since July 2007. He reported that the pain also affected his activities of daily living, and he could not do chores or physical activity with his sons. He also had difficulty in going up and down stairs. On physical examination it was noted that the Veteran avoided bending at the waist because of his low back pain. The impressions included lumbar spondylosis with severe pain that prevents the Veteran from working that requires active use of the back and lower extremities, and lumbar radiculopathy. The Veteran's service-connected lumbar spine disability has been rated by the RO under the provisions of Diagnostic Code (DC) 5235 and DC 5243 for intervertebral disc syndrome. In that regard, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or 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. Under the General Rating Formula, a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) instructs VA to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a . Note (5) provides that, 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. When rating intervertebral disc syndrome under DC 5243, a 40 percent disability rating is assigned when there is intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months. A 60 percent disability rating is assigned for intervertebral disc syndrome with incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. The Board has reviewed the evidence of record and finds that the weight of evidence does not support the grant of an increased rating for the service-connected degenerative disc disease of the lumbar spine. In reaching its conclusion, the Board has considered entire record, to include the Veteran's treatment records, VA examination reports, statements by the Veteran, his wife, and his friend, and his records from the SSA. As noted, the general rating formula for diseases and injuries of the spine a rating higher than 40 percent requires evidence of ankylosis. Ankylosis has not been reported during the appeal period. Ankylosis was not diagnosed during the most recent VA examination nor in any of the earlier VA or private examination reports. Rather, when he was examined in 2009, the Veteran was still able to demonstrate forward flexion of 30 degrees, which factored in his complaints of pain. Similarly, while VA and non-VA treatment records reflect continuing back pain, ankylosis was not diagnosed. The functional factors specified in DeLuca are not applicable where the highest rating has been granted for limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). A higher rating is therefore not warranted on the basis of orthopedic manifestations. The competent evidence of record also fails to establish that the Veteran has been prescribed bed rest or experienced incapacitating episodes of at least 6 weeks during a 12 month period. Recognition is given to the Veteran's reports of having flare ups and incapacitating episodes and being bedridden due to his service-connected lumbar disability. He reports that these occurrences being daily or weekly. However, there is no indication that the Veteran has been prescribed bed rest by a physician, which is a requirement for VA purposes. While not diminishing the severity of the Veteran's flare ups or the pain that he experiences, six weeks of incapacitating episodes, as defined by VA, has not been demonstrated. The criteria for a 60 percent rating for intervertebral disc syndrome under DC 5243 have not been demonstrated. The Board acknowledges that the primary symptom and functional limiting factor associated with the Veteran's service-connected lumbar disability is his pain. A review of the record shows that the Veteran's lumbar pain has been characterized as chronic, constant, severe, and intractable. Additionally, his service-connected lumbar disability has manifested severe limitation of motion with pain, a need for daily pain medication, and findings of spasms and tenderness. While his service-connected lumbar disability has also resulted in chronic pain radiating to his left lower extremity, the Board notes that this has been considered and separately service-connected as radiculopathy of the left lower extremity. No additional neurological abnormalities have been identified and associated with his low back disorder. The Board finds that the Veteran's symptoms and impairment due to his service-connected lumbar disability, while clearly severe, do not meet or more nearly approximate the criteria for a disability rating of 50 percent under the applicable rating criteria. As the preponderance of evidence is against his claim, the appeal for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In so finding, consideration has been given to the Veteran's statements regarding increased symptomatology. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Here, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran's assessment of the severity of his disability. Thus, evidence of increased lumbar spine symptomatology has not been established, either through medical or lay evidence. Further, the disability does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating is made. 38 C.F.R. § 3.321(b)(1) . The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are present, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. There has been no showing that the Veteran's disability picture for his lumbar strain disability could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111 . ORDER A rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. REMAND Unfortunately, a remand is required with respect to the issue of entitlement to an increased rating for impingement syndrome of the right shoulder with residuals of clavicle fracture, in order to determine whether a separate disability rating may be warranted for any neurologic abnormalities or surgical scars that may be associated with the now service-connected right shoulder disability. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 3.159(c). The record reflects that the Veteran's impingement syndrome of the right (major) shoulder, with residuals of clavicle fracture, has been rated as 30 percent disabling, under Diagnostic Codes 5201-5203, which rate limitation of motion of the arm and impairment of the clavicle or scapula. 38 C.F.R. § 4.71a. The Board notes that although the orthopedic impairment resulting from the Veteran's service-connected impingement syndrome of the right shoulder, with residuals of clavicle fracture. The current 30 percent rating is based on loss of range of motion. However, there is also an indication in the record that there may be neurologic impairment as well as a residual surgical scar that may be associated with the Veteran's service-connected right shoulder disability. 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. With regard to the potential neurologic manifestations of the service-connected right shoulder, the Board notes that an April 2008 rating decision specifically denied entitlement to service connection for cervical radiculopathy, residuals of cervical disk disease (claimed as numbness in right shoulder, right arm, neck and back). Indeed, the disability picture as it relates the neurological symptoms effecting the right upper extremity is unclear. The record shows that in October 2002, the Veteran underwent an EMG study, which provided impressions of evidence for bilateral median nerve lesions at the wrists, consistent with carpal tunnel syndrome (CTS), no evidenced for plexopathy, and no myopathy or cervical radiculopathy seen. This EMG could not rule out spinal stenosis, mechanical causes of the shoulder or limb pain, or a pure sensory radiculitis. The examiner favored mechanical shoulder pain and mild symptoms due to CTS bilaterally. A January 2003 EMG study revealed partial denervation of the right serratus muscle, indicative of previous injury to the long thoracic nerve. The examiner commented that the Veteran's sensory complaints were likely cutaneous nerve involvement over the scar. In the March 2003 report of operation, regarding the Veteran's right shoulder surgery, it was noted that he had chronic long thoracic nerve palsy in the right shoulder. In June 2005, a private treatment record revealed the Veteran was seen for right shoulder pain, and examination revealed he had severe right shoulder spasms. In a statement dated in October 2007, the Veteran reported severe numbness in his right shoulder, neck, arm, and back, and claimed that two EEG neurological studies had confirmed that his thoracic nerve had been severed during the injury sustained in service. On the VA examination in January 2008, the Veteran reported he had been diagnosed with nerve damage to the right shoulder, and he complained of pain, numbness, and weakness of the shoulder and right upper arm. In private treatment records dated in March and April 2008, the Veteran reported numbness in the carpal tunnel region, but indicated his shoulder pain bothered him more than the hand numbness, and examination of the right shoulder revealed full strength, and normal sensation. Finally, in a notice of disagreement dated in March 2009, the Veteran reported having severe pain and weakness in his shoulder from the time of his in-service injury, and claimed that after a nerve conduction study in April 2008, he was told that the results showed "no radiculopathy or issues causing the numbness in [his] shoulder from [his] neck/C-spine". Based on the foregoing, the Board finds that additional development is necessary to properly assess the nature and etiology of any possible neurological impairments and/or any residual scar that may be related to the service-connected right shoulder disability. The medical evidence of record does not adequately address whether the Veteran currently has neurological impairments and/or a residual scar attributable to his now right shoulder disability and VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4). As such, the Board finds that the Veteran should be afforded appropriate VA examinations to determine whether there are any neurological abnormalities and/or residual scar associated with his service-connected right shoulder disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any neurological impairment and of any residual scar(s) of the right shoulder/ upper right extremity, to specifically include whether any such neurologic abnormality or scar may be associated with the service-connected right shoulder disability. A copy of this remand and the claims folder must be available for review by the examiner. Following a clinical examination and review of the claims folder, the examiner must identify all neurological impairments and/or scars of the right shoulder/ upper right extremity found to be present. For all diagnoses made, the examiner must provide the following opinions: (a) Whether it is at least as likely as not (50 percent probability or greater) that any diagnosed neurological impairment affecting the Veteran's right upper extremity is a neurologic abnormality that was caused by, permanently worsened (aggravated) by, or otherwise associated with, the Veteran's service-connected right shoulder disability. If a positive opinion is rendered, the examiner must also specifically describe the current severity of any such related neurological impairment. (b) Whether it is at least as likely as not (50 percent probability or greater) that any scar(s) of the right shoulder was as caused by, permanently worsened (aggravated) by, or otherwise associated with, the Veteran's service-connected right shoulder disability. If a positive opinion is rendered, the examiner must also specifically describe the current severity of any such related scar(s). The examiner must provide complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner is unable to provide any opinion without resort to mere speculation, he or she should so indicate and fully explain why an opinion cannot be rendered. 2. Thereafter, readjudicate the issue on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits. He and his representative should also be given an opportunity to respond to the SSOC. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs