Citation Nr: 1315979 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 08-14 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a higher initial rating for a cervical spine disability, rated as 10 percent disabling prior to November 27, 2012, and rated as 20 percent disabling effective November 27, 2012. 2. Entitlement to a higher initial rating for left shoulder disability, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active duty service from November 1986 to July 1990 and December 2003 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) located in New York, New York that, in pertinent part, granted service connection for cervical spine and left shoulder disabilities, effective February 24, 2005 The Veteran was afforded an April 2010 hearing before the undersigned. A transcript of the hearing is associated with claims folder. These matters were remanded in August 2010 and August 2012 for further development. In August 2010, the Board also granted service connection for a gastrointestinal disability; and in August 2012, it granted service connection for right shoulder and bilateral foot disabilities, and entitlement to a total rating for compensation purposes based on individual unemployability. In January 2013, the Appeals Management Center (AMC) issued a decision in which it increased the rating for the cervical spine disability to 20 percent, effective November 27, 2012. The Board granted TDIU, effective January 28, 2008; the date the Veteran reportedly had stopped working. The issue of entitlement to a higher initial rating for left 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. FINDINGS OF FACT 1. Since the effective date of service connection, with consideration of functional factors, the Veteran's cervical spine disability has been manifested by limitation of forward flexion to not greater than 30 degrees but greater than 15 degrees. It is not manifested by forward flexion limited to 15 degrees or less; or favorable ankylosis of the entire cervical spine. 3. Effective April 16, 2010, the Veteran's bilateral upper extremity radiculopathy has been manifested by moderate incomplete paralysis of the upper radicular group of peripheral nerves. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation of 20 percent, but no higher, for the Veteran's service-connected cervical spine disability have been met since the effective date of service connection. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Codes 5237-5243(2012). 3. Effective April 16, 2010, the criteria for separate disability evaluations of 40 percent for the right and 30 percent for the left upper extremity neurologic impairment have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 8510 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran's appeal arise from the initial ratings following the grants of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at an April 2010 Board hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Veteran has been afforded examinations that contain the findings needed to rate his disabilities. The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's hearing the issues were identified. There was a discussion of possible evidence that could substantiate the claims. Questioning at the hearing resulted in the remand for examinations. The Bryant requirements were thereby complied with. The Board remanded this appeal to afford the Veteran a contemporaneous examination that included the necessary findings to rate the disability. The examination was provided in July 2012, and included the findings sought in the remand. Hence, there has been substantial compliance with the remand instructions. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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, 16 Vet. App. 183 (2002). Initial Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the 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 evaluations shall 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. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Pursuant to Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the disability is to be rated as follows: with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with x- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. In applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). The criteria for rating all spine disabilities, to include arthritis and IVDS, are now set forth in a General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the current rating criteria, IVDS is evaluated by one of two methods. First, the disability could be rated on the basis of the total duration of incapacitating episodes over the previous 12 months. Alternatively, IVDS could be rated by combining under 38 C.F.R. § 4.25 separate evaluations for its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. The General Rating Formula for Diseases and Injuries of the Spine provides that 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: unfavorable ankylosis of the entire spine warrants a maximum 100 percent rating; while unfavorable ankylosis of the entire cervical spine is given a 40 percent rating. Forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 30 percent rating. 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 warrants a 20 percent rating. Forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243; Plate V, 38 C.F.R. § 4.71a, Note (2). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, are to be evaluated under an appropriate diagnostic code. General Rating Formula for Diseases and Injuries of the Spine, Note (1). 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. General Rating Formula for Diseases and Injuries of the Spine, Note (5). Under the formula for rating intervertebral disc disease, Diagnostic Code 5243; 10 percent is warranted where incapacitating episodes have a total duration of at least 1 week but less than 2 weeks during the past 12 months; 20 percent is assigned where incapacitating episodes have a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; 40 percent is assigned where incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent is assigned where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of evaluation under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician, and "chronic orthopedic and neurologic manifestations" means orthopedic and neurological signs and symptoms resulting from IVDS that are present constantly or nearly so. Id. For impairments related to the upper radicular group (fifth and sixth cervicals), where paralysis is complete, all shoulder and elbow movements are lost or severely affected while hand and wrist movement are not affected, a 70 percent rating is warranted for the major arm and a 60 percent rating is warranted for the minor arm. Severe incomplete paralysis with warrants a 50 percent disability rating for the major arm and a 40 percent disability rating for the minor arm. For moderate incomplete paralysis, a 40 percent disability rating for the major arm and a 30 percent disability rating are warranted. A 20 percent rating is warranted for mild incomplete paralysis of either arm. 38 C.F.R. § 4.124a, Diagnostic Code 8510. The Veteran is right-handed, that is, the right arm is the major extremity. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves", 38 C.F.R. § 4.124(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran underwent a VA examination in February 2006. He complained of neck pain of 8/10 severity that was localized in the posterior mid-neck area. He reported that the pain lasted approximately 1-2 hours and stayed in midline. He reported some radiation into the left shoulder region but nothing further into the remaining upper extremity on either side. He reported that flare-ups are manifested by increased pain (10/10) and additional limitation. There were no other associated features such as numbness or weakness. Upon examination, the Veteran achieved forward flexion from 0-45 degrees, extension from 0-45 degrees, left lateral flexion from 0-45 degrees (with pain at approximately 20 degrees), right lateral flexion from 0-45 degrees without pain, left lateral rotation from 0-20 degrees with pain, and right lateral rotation from 0-70 degrees without pain. After three repetitions of motion, there was pain coming about the left lateral flexion mainly localized in the area of the trapezius. There was localized tenderness at the base of the cervical spine and the neurological examination of both upper extremities did not reveal any abnormalities such as sensory deficits or changes of the reflexes. X-rays revealed degenerative disc narrowing at C5-C6 and C6-C7; and minimal posterior osteophytic reaction slightly intruding to the left and right intervertebral foramina at C5-C6. The Veteran was diagnosed with mild degenerative arthritis of the lower cervical spine. A May 2008 VA outpatient treatment report reflects that the Veteran complained of intermittent neck pain with intermittent left upper arm weakness. Upon examination, there was neck and upper arm joint pain. There was no muscle pain or loss of function of extremities. A September 2008 MRI revealed multilevel degenerative changes. A January 2009 outpatient treatment report reflects that the Veteran used a TENS unit; and that it was helping. Nonetheless, he complained of 7/10 pain. A March 2009 VA outpatient treatment report reflects that the Veteran complained of neck pain of 4/10 severity. Upon examination, he achieved cervical spine forward flexion to 60 degrees, extension to 50 degrees, and right and left lateral flexion to 30 degrees. A June 2009 VA treatment report reflects that the Veteran complained of severely limited range of motion due to neck pain. He was pending anesthesia pain consultation for local trigger point injections or epidural. The Veteran underwent a VA examination in July 2009. The examiner reviewed the claims file in conjunction with the examination. The Veteran complained of constant pain in the entire neck area, more on he left side than the right. He described the pain as sharp in nature, and rated an 8/10. He reported that it radiated to the left upper extremity which was associated with numbness and tingling in the left hand (digits 1, 2 and 5). He reported flare-ups 4-5 times per week where the pain was 10/10. The pain was aggravated by certain movements of the neck and with inclement weather. He reported additional limitation of motion and functional impairment with flare-ups (which lasted approximately and hour). He reported that the pain interfered with recreational activities and driving. Upon examination, there was no swelling or deformity of the cervical spine. On palpation, there was diffuse tenderness in the paraspinal area on the left side C3-C4, C4-C5, and C6-C7. There was also tenderness and spasm in the left upper trapezius. The Veteran achieved forward flexion from 0-40 degrees with pain, extension from 0-35 degrees with pain, left lateral flexion from 0-35 degrees with pain, right lateral flexion from 0-45 degrees, left lateral rotation from 0-60 degrees with pain, and right lateral rotation from 0-80. The examiner noted additional limitation of 5 degrees of flexion and extension on repetitive movements. The Veteran denied any incapacitating episodes in the past 12 months. Sensory was decreased to pinprick in the left upper extremity in C5-C6 distribution. Deep tendon reflexes were 2+ and symmetric in the upper extremities. X-rays revealed moderate rotational curvature convexity to the left and straightening of lordotic curve suggested underlying muscle spasm; moderately advanced degenerative disk narrowing with anterior posterior osteophytic production from C5-C6 through C7-T1; and additional degenerative changes at the atlantoaxial and atlantooccipital joint. The examiner diagnosed the Veteran with chronic neck pain syndrome with degenerative disk disease and spinal stenosis. An October 2009 outpatient treatment report reflects that the Veteran underwent physical therapy for his cervical spine. Another treatment report (also from October 2009) indicated that the Veteran achieved full active range of motion. A March 2010 outpatient examination reflects that there was no significant changes from the initial assessment except that there was no pain with left lateral flexion, when the Veteran previously reported 7/10 pain. The Veteran achieved forward flexion from 0-20 degrees; extension from 0-15 degrees; right and left lateral flexion from 0-20 degrees; right rotation from 0-60 degrees; and left rotation from 0-50 degrees. At his April 2010 Board hearing, the Veteran testified that he needed a special pillow to sleep. He also testified that he would lose control of his left hand and that he has to use his right hand to pick things up. He stated that, for example, he could pick up a cup; but he could not hold onto it for long. He stated that no one has talked to him about remedial surgery; but that the possibility of getting cortisone shots was discussed. An April 2010 EMG/NCV consultation report revealed neurogenic dysfunction in the bilateral cervical paravertebral muscles consistent with bilateral C5-C6-C7-C8-T1 chronic poly-radiculopathy. The Veteran underwent a VA examination in November 2010. The claims file was reviewed in conjunction with the examination. The Veteran complained of achy to burning neck pain that he rated at an 8-9 out of 10. He stated that the pain radiated to both sides (left more than right). He complained of numbness and tingling in both hands, left more than right. He complained of aches and pains and flare-ups every day. He reported that he underwent physical therapy last year. He denied any incapacitating episodes in the past 12 months. He reported stiffness, fatigue, and spasm of the neck, and weakness in the left arm. The Veteran was independent in activities of daily living. He reported that he used a heating pad for his neck; but no braces or other assistive devices. He reported that he could not do heavy lifting secondary to left upper extremity weakness and left neck pain. He also reported difficulty with overhead lifting. He could drive a car with his right hand. Upon examination, the Veteran had localized tenderness to the paraspinal area bilaterally, including left trapezius muscle that was tender to touch. He achieved forward flexion from 0-40 degrees with pain on the left side; extension from 0-35 degrees with pain; left lateral flexion from 0-35 degrees with pain; right lateral flexion from 0-45 with pain; left lateral rotation from 0-60 degrees with pain; and right lateral rotation from 0-80 degrees with pain. On repetitive motion times 4 the pain on the left neck increased. There was no decreased range of motion or change of motion. The Veteran had weakness and fatigue in the upper left extremity. There was no incoordination or lack of endurance. There were no flare-ups or incapacitating pain in the past 12 months. The examiner noted the July 2009 x-rays. The examiner diagnosed chronic neck pain syndrome with degenerative disk disease and spinal stenosis. The Veteran underwent another VA examination in September 2012. He reported pain and continuous pinching. He denied flare-ups. Upon examination, he achieved forward flexion to 30 degrees; extension to 25 degrees; right and left lateral flexion to 25 degrees; and right and left rotation to 40 degrees. The examiner noted no objective evidence of painful motion throughout range of motion testing. Following repetitive testing the Veteran's range of motion remained the same. The only functional impairment noted by the examiner was decreased range of motion. There was; however, no objective evidence of pain on motion. The examiner found no localized tenderness or pain to palpation, or muscle spasm. Deep tendon reflexes were normal. A sensory examination also yielded normal findings. Muscle strength was 3/5 in both upper extremities. The examiner found that the Veteran had radiculopathy manifested by moderate intermittent pain, moderate paresthesias and/or dysesthesias, mild numbness in both upper extremities. The radiculopathy involved C5/C6 nerve roots (upper radicular group) and C7 nerve roots (middle radicular group). The examiner determined that the radiculopathy was mild to both upper extremities. The examiner found that the Veteran did not have intervertebral disc syndrome (IVDS). Analysis The AMC made the 20 percent rating effective on November 27, 2012, which is the date of an addendum to a September 2012 examination report. It appears that the only additional information in the addendum was a notation that the claims file had been reduced. Examinations prior to September 2012 did not include specific reports of ranges of motion that met the criteria for a 20 percent rating. Throughout the period prior to September 2012; however, there were reports of significant functional impairment, including pain of 10/10 during flare ups, and pain on motion. Considering the significant functional impairment with the ranges of motion demonstrated on examinations, the Board finds that the criteria for a 20 percent rating have been approximated throughout the appeal period. The July 2009 examination report was followed by treatment reports reflecting that the Veteran underwent physical therapy. Additionally, a March 2010 outpatient examination report reflected forward flexion from 0-20 degrees; and a combined range of motion of 185. These findings met the criteria for a 20 percent rating even absent functional factors. Subsequent examination reports dated November 2010 and September 2012 reflect forward flexion to 40 degrees and 30 degrees respectively. Although the findings in the November 2010 VA examination report do not reflect range of motion meeting the 20 percent criteria. The Board notes that there was pain throughout range of motion. The Board finds, that in consideration of the DeLuca factors, and in giving the benefit of the doubt to the Veteran, that a 20 percent rating is warranted effective July 6, 2009. A rating in excess of 20 percent is warranted if the disability is manifested by forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. The Veteran has had not reported ranges of motion that approximate these levels. Given the reported ranges of motion on objective examination; the ranges of motion reported on those occasions when functional factors were considered, and the apparent lack of need for treatment during any flare-ups, the Board finds that the evidence is against a rating in excess of 20 percent due to functional factors. 38 C.F.R. §§ 4.40, 4.45. Radiculopathy Additionally, the Board notes that an April 16, 2010 EMG/NCV consultation report revealed neurogenic dysfunction in the bilateral cervical paravertebral muscles consistent with bilateral C5-C6-C7-C8-T1 chronic poly-radiculopathy. The September 2012 VA examiner found that the Veteran had radiculopathy manifested by moderate intermittent pain, moderate paresthesias and/or dysesthesias, mild numbness in both upper extremities. Bilateral weakness was also noted, inasmuch as strength was 3/5 in the upper extremities. The radiculopathy involved C5/C6 nerve roots (upper radicular group) and C7 nerve roots (middle radicular group). The examiner determined that the radiculopathy was mild in both upper extremities; but given the findings of widespread weakness and moderate paresthesia and dysesthesias, the disabilities more closely approximate moderate incomplete paralysis. See 38 C.F.R. §§ 4.123, 4.124 (2012). Consequently, the Board finds that effective April 16, 2010, the Veteran is entitled to a separate 40 percent ratings for radiculopathy of the right upper extremity and a rating of 30 percent for radiculopathy of the left upper extremity. Diagnostic Code 8510. The Board notes that higher ratings are warranted for moderately severe incomplete paralysis of the upper radicular group of peripheral nerves. The Veteran has had no neurologic finding that have been found to be severe and has no atrophy. The findings have all been in the mild to moderate range. Hence the evidence is against higher initial ratings on the basis of radiculopathy. Extraschedular Consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012) is not appropriate in this case, because the rating criteria reasonably describe the Veteran's disability level and symptomatology. See generally Thun v. Peak, 22 Vet. App. 111 (2008). The Veteran's orthopedic disability is manifested by limitation of motion and functional impairment that is contemplated by the rating criteria including 38 C.F.R. §§ 4.40, 4.45, 4.59. The neurologic disability is evaluated under criteria that contemplate all of the manifestations of the disability and assigns a rating based on the overall impairment. The Veteran has no manifestations that are outside these criteria. The Board therefore finds that referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted in this case. TDIU The Board previously granted TDIU as of the date the Veteran reportedly stopped working. Prior to that date he was gainfully employed in the court system as an indexer and computer operator. There has been no evidence that his employment was marginal. In essence there is no evidence of unemployability prior to June 28, 2008. The question of entitlement to TDIU is not raised for that period. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (holding that the question of entitlement to TDIU does not arise in a claim for increase unless there is evidence of unemployability). (CONTINUED ON NEXT PAGE) ORDER A rating of 20 percent, but no higher for the Veteran's cervical spine disability, is granted, effective February 24, 2005. A separate rating of 40 percent for right upper extremity radiculopathy is granted, effective April 16, 2010. A separate rating of 30 percent for right upper extremity radiculopathy is granted, effective April 16, 2010. REMAND In Mitchell v. Shinseki, 25 Vet. App. 32 (2012), the Court found examination findings to be inadequate where the examiner did not explicitly report whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain. In addition, the Court noted that, when discussing functional loss due to flare-ups, the examiner should provide the detail. In this case, the Veteran underwent a VA examination in September 2012; and the examiner submitted an addendum opinion in November 2012. However, the examiner did not explicitly report the point in the ranges of shoulder motion, if any, when pain caused functional impairment, or whether there was any additional range of motion loss due to any weakened movement, excess fatigability, incoordination, or flare-ups. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. at 44. Where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required 'for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.' Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Accordingly, the case is remanded for the following: 1. The Veteran should be afforded a VA examination of the left shoulder. The examiner should review the claims folder, including relevant records in Virtual VA. The examiner should report the ranges of shoulder motion in degrees. The examiner should report whether there is additional functional limitation due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should express the additional functional limitation in terms of the degree of additional limitation of motion due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. If the examiner is not able to answer these questions, reasons for this inability should be provided. 3. If any benefit sought on appeal is not fully granted, the agency of original jurisdiction should issue a supplemental statement of the case. The appeal should then be returned to the Board if otherwise in order. 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. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs