Citation Nr: 1318318	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  97-34 168A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to an increased evaluation for right shoulder bicipital tendonitis and bursitis, currently evaluated as 10 percent disabling. 

2. Entitlement to an increased evaluation for cervical strain, currently evaluated as 10 percent disabling. 

3. Entitlement to an increased evaluation for dorsolumbar strain, currently evaluated as 10 percent disabling.

4. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to December 27, 2005. 

5. Entitlement to special month compensation (SMC) based on aid and attendance or housebound status.




REPRESENTATION

Appellant represented by:	Joshua A. Whitehill, Attorney


ATTORNEY FOR THE BOARD

C. D. Simpson


INTRODUCTION

The Veteran served on active duty from May 1982 to October 1982, and from December 1988 to December 1994.  This appeal comes before the Board of Veterans' Appeals (Board) from March 1997 rating decision of the Department of Veterans Affairs (VA), San Juan, Puerto Rico, Regional Office (RO).  The Veteran subsequently moved to Florida, and his claims folder was transferred to the St. Petersburg, Florida, RO.  

The Veteran was afforded a RO hearing in April 1998.  The hearing transcript is of record.  

In February 2005, the Board remanded the increased evaluation issues for further development.  Briefly, the Board notes that service connection for prostatitis was subject to the February 2005 Remand.  The RO awarded service connection for prostatitis in a May 2006 rating decision, and this issue is no longer on appeal.  Following development, the Board denied all increased evaluations of appeal in a January 2008 decision.

The Veteran appealed the January 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court).  Before the Court issued a decision, the Veteran and the Secretary of VA filed a Joint Motion for Remand (Joint Motion) to vacate the January 2008 Board denial and remand the issues for adjudication consistent with the Joint Motion instructions.  The Court granted the Joint Motion in November 2008.  

In December 2010, the Board remanded the appeal for further development.  In April 2011, the Veteran filed a motion for reconsideration of the December 2010 Remand.  The Board dismissed the motion in May 2011.  

As the Veteran has raised the issue of unemployability due to service connected disabilities, the issue of TDIU is part of the appeal for the entire claims period.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  The Veteran has been in receipt of a total disability (100 percent) rating beginning on the date of his service connection claim for a psychiatric disability.  The Board notes the Court's holding in Bradley v. Peake, 22 Vet. App. 280, 294 (2008) that VA must still consider a TDIU claim despite a total disability rating being in effect in order to determine the Veteran's eligibility for SMC under section 1114(s).  38 U.S.C.A. § 1114(s).  Here, unlike Bradley, the Veteran's combined rating for non-psychiatric disabilities is 30 percent.  The record does not in any way suggest a single non-psychiatric disability precludes employment as to warrant a separate TDIU award and further consideration of SMC under section 1114(s).  Id.  For these reasons, the Board considers entitlement to TDIU beginning December 27, 2005 to be moot.  Id.; see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999)).  The issue is characterized as entitlement to TDIU prior to December 27, 2005 as set forth on the title page.  

During the pendency of the appeal, the Veteran changed representation from Paralyzed Veterans of America to Joshua A. Whitehill, Attorney.  

The Veteran, through his representative, submitted additional evidence following the most recent adjudication by the agency of original jurisdiction (AOJ) in the December 2012 supplement statement of the case.  He waived his right to AOJ review and the Board may consider the newly submitted evidence in the first instance.  38 C.F.R. § 20.1304(c).

In February and March 2012, the Veteran submitted claims for service connection for bilateral knee, bilateral elbow, left shoulder, chronic bronchitis, acid reflux, left ankle, incontinence, and kidney disabilities.  These matters have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The issue of SMC based on aid and attendance/ housebound status 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. Right shoulder bicipital tendonitis and bursitis is currently manifested by pain and no more than slight limitation of motion. 

2. Cervical strain is currently manifested by pain and no more than slight limitation of motion, with minimal evidence of muscle spasm. 

3. Dorsolumbar strain is currently manifested by pain and no more than slight limitation of motion, with minimal evidence of muscle spasm.

4.  The Veteran is in receipt of a total disability rating beginning December 27, 2005.

5.  Prior to December 27, 2005, the Veteran is service connected for the following disabilities: right shoulder, 10 percent; cervical strain 10 percent; lumbar strain, 10 percent; scar right inguinal hernia repair, noncompensable; scar residual right hand injury, noncompensable; and prostatitis, noncompensable.  His overall combined rating is 30 percent.  

6.  Prior to December 27, 2005, it is not shown that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities alone. 


CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 10 percent for right shoulder bicipital tendonitis and bursitis are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71(a), Diagnostic Codes 5019, 5201 (2012). 

2. The criteria for an evaluation in excess of 10 percent, for cervical strain, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5290, 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5243-8526 (2012). 

3. The criteria for an evaluation in excess of 10 percent, for dorsolumbar strain, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5243-8526 (2012).

4.  The criteria for entitlement to TDIU for the period prior to December 27, 2005, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. 

In February and March 2008, the RO issued a letter notifying the Veteran about what information and evidence is needed to substantiate his claims for an increased rating and TDIU, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and what evidence is necessary to support a disability rating and effective date.  While these letters were furnished after the issuance of the appealed rating decision, the appeal was subsequently readjudicated in multiple Supplemental Statements of the Case (SSOC) issued after the notification, with the most recent SSOC being issued in December 2012.   This course of corrective action fulfills VA's notice requirements.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

The Board acknowledges a decision from the Court that provided additional guidance on the content of the notice that is required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increase compensation benefits.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  However, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  Hence, specific notifications about pertinent diagnostic codes and impairment in activities of daily living are not necessary.  The duty to notify has been met.  

The Board further concludes that the duty to assist has also been met.  The Veteran's service treatment records, VA treatment records, private medical records, Social Security Administration (SSA) records, and Office of Personnel Management (OPM) records have been obtained.  He was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners.  There is no indication that his service connected low back, neck, or right shoulder disability have increased in severity since his most recent VA examinations in July 2012.  There is no indication that there is any relevant evidence outstanding in the claim.

The Veteran's representative contends that the VA examinations are inadequate as the examiner was biased and rushed the Veteran through the examination.  Review of the October 2010 and July 2012 VA examination reports show that the examiners reviewed the claims file and conducted a thorough contemporaneous clinical evaluation, and, in the case of the July 2012 examiner, provided a negative assessment of the Veteran's credibility.  

The Board notes that there are multiple findings of malingering by different clinicians over a lengthy period of time.  (See VA examination reports from March 1997, June 1998, May 2002, May 2004 and March 2005).  They observed the Veteran exhibiting poor effort during range of motion studies and exaggerating his limitations in light of clinical evidence.  Hence, the July 2012 VA examiner's assessment comports with prior clinical findings and is highly plausible given the Veteran's established history.  See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (It is the Board's fundamental responsibility to evaluate the probative value of all evidence); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (Holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence."); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a Veteran's testimony simply because the Veteran is an interested party; personal interest may, however, affect the credibility of the evidence).  Having reviewed the overall record, including VA examination reports, the Board does not find the Veteran credible in his claim that the VA examiners are biased and did not allow him to have an adequate amount of time to complete the examination.  See id.  In summary, the Board finds the objections to the VA examinations to be without merit.   

The Veteran was not afforded a relevant medical opinion for his TDIU claim.  As explained in the introduction and analysis below, the period for consideration is prior to December 27, 2005.  Multiple persuasive medical records from this period address the Veteran's employment capabilities and do not suggest that service connected disabilities alone preclude employment.  (Dr. H.G. September 2002 private medical records; Dr. T.G. January 2004 private medical records).  As explained in greater detail below, the Veteran's credibility in describing his orthopedic limitations is low and further undermines any lay evidence suggesting unemployability due to service connected disabilities.  For these reasons, the Board finds that there is no reasonable possibility a remand for an additional medical opinion would substantiate the claim.  38 C.F.R. § 3.159(d).       
     
The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the instructions in the November 2008 Joint Motion and December 2010 Board Remand.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  The evidence includes completed translation of the Spanish language documents, pertinent VA examinations and opinions, complete treatment records from Dr. A.M., and Office of Personnel Management (OPM) records.  A December 2012 SSOC was issued reflecting consideration of the newly generated evidence.   The Board is satisfied that there was substantial compliance with its remand orders.  Id.; See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).

In April 1998, the Veteran was provided an opportunity to set forth his contentions during the hearing at the RO.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

Here, during the April 1998 hearing, the RO Hearing Officer identified the issues on appeal.  Information was also obtained to clarify the Veteran's arguments.  He stated in pertinent part that his low back, neck, and right shoulder disabilities had increased in severity and detailed his treatment history.  Updated VA examinations and outstanding treatment records were obtained.  As such, the Board finds that, consistent with Bryant, the RO Hearing Officer complied with the duties set forth in 38 C.F.R. 3.103(c)(2).

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal.

General laws and regulations 

Historically, the Board points out that service connection for spinal and right shoulder disabilities was granted by a January 1996 rating decision.  That decision was based on service treatment records which showed that the Veteran incurred these disabilities in service and on a VA examination.  In October 1996, the Veteran applied for an increased rating for all of these conditions.  A March 1997 rating decision continued the Veteran's evaluations for all these service connected disabilities, and this appeal ensued.

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. 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, 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 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

The Board must consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes.  38 C.F.R. §§ 4.40, 4.45; see Johnson v. Brown, 9 Vet. App. 7, 10 (1996).  The Court interpreted these regulations in DeLuca v. Brown, 8 Vet. App. 202 (1995), and held that all complaints of pain, fatigability, etc., shall be considered when put forth by a veteran.  In accordance, the Veteran's reports of pain will be considered in conjunction with the Board's review of the limitation of motion diagnostic codes.  See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

(i) Right shoulder

The Veteran's right shoulder disability is currently rated as 10 percent disabling under Diagnostic Code 5019.  This code provides that bursitis is to be rated on limitation of motion of affected part as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5019 (2012). 

The shoulder disability may be rated for limitation of motion of the arm under Diagnostic Code 5201.  The record indicates that the Veteran is right-hand dominant.  Under that code, for the right shoulder (dominant), a 20 percent rating is warranted for limitation of motion at shoulder level, a 30 percent rating for limitation midway between side and shoulder level, and a 40 percent rating for limitation to 25 degrees from the side. 

The Board notes that normal range of motion of the shoulder is set forth in 38 C.F.R. § 4.71, Plate I.  Normal forward elevation, or flexion, is from 0 to 180 degrees. Normal shoulder abduction is also from 0 to 180 degrees.  Normal external rotation and internal rotation are from 0 to 90 degrees.

The March 1997 VA examination report was negative for instability or tenderness to palpation of the right shoulder.  Range of motion of the right shoulder was flexion of 110 degrees, and abduction to 140 degrees, with complete extension, internal rotation, and external rotation.  The examiner indicated that it appeared that the Veteran gave an incomplete effort for the range of motion.  Muscle atrophy was not found and he had normal muscle structure.  There was no objective evidence of pain on motion on any movements of the right shoulder.  The examiner diagnosed with right shoulder bicipital tendonitis with bursitis.

A June 1998 VA physical therapy record noted a range of motion of the shoulder to 120 degrees. 

At the June 1998 VA examination, the Veteran complained about severe pain in the posterior right shoulder.  Prior X-rays showed mild degenerative joint disease.  Flexion and abduction were to 150 degrees.  Internal and external rotation were to 90 degrees.  The examiner commented that the range of motion was not accurate as the Veteran was not performing at full effort.  There was no objective evidence of painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement of the right shoulder.  The Veteran was diagnosed with right shoulder bicipital tendonitis and bursitis, asymptomatic.

A VA bone survey conducted in September 2000 noted degenerative changes at the glenohumeral joints.

At the June 2001 VA examination, the Veteran reported deep posterior shoulder pain associated with range of motion and strength activities.  He demonstrated right shoulder abduction to 180 degrees, flexion to 180 degrees, and internal rotation to 90 degrees.  Tenderness or weakness was not observed.  The examiner diagnosed right bicipital groove tendonitis and bursitis.

Private medical records from June 2002 show that the Veteran underwent right shoulder range of motion testing as part of a disability determination evaluation.  Right shoulder flexion and abduction were to 120 degrees.  Adduction and internal and external rotation were noted as full. 

Private magnetic resonance imagining (MRI) studies taken in November 2002 showed increased signal intensity in T1 and T2 weighted images at the distal supraspinatus tendon and not involving full tendon thickness.  No tendon retraction, subacromial or subdeltoid fluid was seen.  The findings were compatible with intrasubstance versus partial ligamentous tendon tear.

The Veteran underwent a VA orthopedic examination in March 2004.  At that time, he reported pain in the right deltoid muscle which radiated down to the right elbow, as well as stiffness of the right shoulder.  His right shoulder had no swelling.  He was tender over the deltoid muscle.  The motion of his right shoulder was limited because of pain.  He demonstrated right shoulder flexion to 150 degrees, abduction to 90 degrees, external rotation to 70 degrees, and internal rotation to 50 degrees.  Adduction and extension were full.  Right upper extremity atrophy was not found.  The examiner diagnosed chronic pain syndrome, with some evidence of degenerative disc disease in the lumbar spine.  However, he noted that the Veteran's symptoms were far out of proportion to his objective findings.  He believed that the Veteran's pain and limitation of motion, particularly in the cervical and lumbar areas, were of a psychogenic origin rather than an organic musculoskeletal origin.

VA treatment records, dated in March 2005, suggest that the Veteran was incapable of raising his right arm.  The examiner noted extremely limited motion and assessed severe degenerative disc disease of the lumbar and cervical spine.  A neurology consult was placed.  

The Veteran had another VA examination in October 2005.  He described constant chronic right shoulder pain, but no flare ups.  The examiner was able to flex the Veteran's shoulder to 45 degrees, although the Veteran reported pain with just touching the shoulder.  Active abduction of the right shoulder was to 36 degrees with pain almost immediately.  The examiner indicated that he would want the Veteran to be completely detoxified off of all medications before he would make any prognostication about what the Veteran could and could not do with his shoulders.  The examiner reported that the Veteran was totally uncooperative and consequently could not provide functional impairment in light of DeLuca criteria. 

Upon a second attempt at examination, the Veteran was able to flex passively to 42 degrees and actively to 45 degrees, which the examiner noted was probably the most incredible reversal of numbers he has seen.  Passive abduction was to 52 degrees with pain.  Active abduction was to 36 degrees with pain. Right shoulder abduction pain began at 20 degrees.  The examiner indicated that right shoulder pain began at 22 degrees of flexion, and he was able to actively flex to 45 degrees according to goniometer reading, which was more than passive flexion, and which the examiner found to be remarkable.  He observed that the Veteran had the same symptomatology as his last shoulder examination.  However, he reported that it was virtually impossible to get an accurate evaluation from someone who was so hypersensitive that he yelped when his skin was touched.  His final diagnosis was right shoulder bicipital tendonitis and history of subacromial bursitis, no significant change noted, chronic pain syndrome, and poorly controlled use of prescription drugs versus abuse.

VA physical therapy records from April 2008 reflect that the Veteran was unable to raise his right arm above shoulder level due to stiffness and pain.  

The Veteran's next VA shoulder examination took place in June 2008.  He reported constant right shoulder pain.  He denied deformity, giving way, instability, weakness, effusion, or inflammation.  He reported weekly locking episodes and flare-ups of severe pain.  Right shoulder flexion was active motion to 135 degrees and passive motion to 145 degrees.  Pain for both motions began at 90 degrees.  Repetitive flexion motion was limited to 125 degrees due to pain.  Abduction was active motion to 170 degrees and passive motion to 180 with pain beginning at 100 degrees for both movements.  Repetitive abduction motion was limited to 150 degrees due to pain.  External rotation was to 90 degrees with no functional impairment.  Internal active and passive rotation was to 85 degrees with pain beginning at 70 degrees for both movements.  The examiner did not find evidence of loss of bone, dislocation, inflammatory arthritis, or ankylosis.  He summarized the Veteran's right shoulder symptoms as tenderness, tendonitis, painful movement, and guarding.    

Private medical records, dated in September 2009, by Dr. A.M. show that the Veteran was limited in right arm movement to 90 degrees.  She assessed right shoulder bursitis without further comment.  Notably, under the chief compliant she listed "forms to be filled out."  

In January 2010, the Veteran treating physician (Dr. A.M.) submitted a letter.  She stated that she had treated the Veteran since June 2006.  During recent clinical examination, the Veteran demonstrated limited right shoulder motion.  He could not lift his right arm beyond 45 degrees.  Due to such limitation, he was unable to perform any activity of daily living.  

VA treatment records from February 2010, reflect that the Veteran had pain upon movement of the right shoulder.  VA physical therapy records from March 2010 show that the Veteran exhibited right shoulder flexion to 135 degrees.  The examiner further commented that the Veteran tolerated the assessment with no adverse reactions.  

In October 2010, the Veteran had a VA clinical examination of his right shoulder as part of a SMC claim.  The examiner reviewed the claims folder and interviewed the Veteran.  The Veteran denied deformity, giving way, instability, incoordination, episodes of dislocation or subluxation, or flare-ups.  He affirmed having pain, stiffness, weakness, weekly locking episodes, and tenderness.  Clinical examination did not show evidence of recurrent dislocations, inflammatory arthritis, or ankylosis.  Right shoulder flexion was active motion to 135 degrees with pain beginning at 110 degrees.  Passive flexion motion was to 145 degrees with pain beginning at 90 degrees.  Repetitive flexion motion did not produce additional limitation.  Abduction was active motion to 170 degrees and passive motion to 180 with pain beginning at 130 degrees for both movements.  Repetitive abduction motion did not produce additional limitation.  External rotation was to 90 degrees with no functional impairment.  Internal active and passive rotation was to 85 degrees with pain beginning at 80 degrees for both movements.  Repetitive rotation motion did not produce additional limitation.  The examiner maintained the right shoulder bicipital tendonitis and bursitis diagnosis.  He also concluded that the right shoulder condition would have significant occupational effects as the Veteran would have difficulty with lifting, carrying, reaching, and pain.  

In May 2011, the Veteran again sought treatment from Dr. A.M.  Clinical examination showed an unspecified decrease in right shoulder range of motion.   X-rays were negative for fracture or dislocation.  Dr. A.M. maintained a diagnosis of right shoulder bursitis and impingement.  

MRI taken in July 2011 showed hypertrophic changes and impingement at the acromicoclavicular joint with moderate tindinopathy.  No evidence for a full-thickness rotator cuff tear was seen.  Degenerative treating and blunting of the glenoid labrum inferiorly was also noted.  

The Veteran underwent a VA right shoulder examination in July 2012.  He described continuing right shoulder pain without any new injury or surgery.  He reported having flare-ups 3 to 4 times per week, but pointed to his left shoulder.  Right shoulder flexion was active motion to 180 degrees without pain.  Abduction was also to 180 degrees without pain.  Repetitive abduction motion did not produce additional limitation for either flexion or abduction.  The examiner did not find tenderness upon palpation, but noted that guarding was present.  The Veteran exhibited full muscle strength in his right shoulder.  Impingement, empty-can, external rotation/infraspinatus strength, lift-off subscapularis, cross-body adduction tests were all negative.  No evidence of recurrent dislocation of the glenohumeral/ scapulohumeral joint was observed.  The examiner diagnosed right shoulder bicipital tendonitis and bursitis resolved with no known residuals.  She declined to provide a more precise diagnosis in the absence of objective data.  She stated that the right shoulder condition should not affect employment as the Veteran demonstrated full range of motion.  She commented that he initially requested her help in undressing, but at the end of the examination, when he learned his right shoulder movement was normal, he dressed himself without assistance and discontinued use of the walker.  His gait also appeared normal.   

The Veteran contends that a rating in excess of 10 percent is warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5201.  To warrant a higher rating for his right shoulder, he would have to be found to have limitation of motion of the right shoulder to shoulder level.  Id.

On multiple occasions throughout the pendency of the appeal, the Veteran did not demonstrate the requisite limitation of motion for a rating in excess of 10 percent.  
Range of motion taken on the March 1997 VA examination was flexion to 110 degrees, in a June 1998 VA examination flexion was to 150 degrees, a June 1998 report of physical therapy was noted flexion to 120 degrees, and on June 2001 VA examination flexion was to 180 degrees.  Private medical records from June 2002 show right shoulder flexion and abduction to 120 degrees.  Range of motion on a March 2004 VA examination was flexion to 150 degrees and on a June 2008 VA examination was active flexion motion to 135 degrees with additional functional limitation from pain at 90 degrees and upon repetitive motion to 125 degrees.  The most recent VA examination clinical findings from July 2012 show that the Veteran did not have noticeable limitation of right shoulder motion.  None of these above cited findings are consistent with a finding of limitation of motion to shoulder level, such that they would warrant an increase in the Veteran's evaluation for his service connected right shoulder disability. 

The Board observes that the June 1998, March 2004, and October 2005 VA examiners made findings suggestive of a more limited range of motion.  However, these examiners found the Veteran to exhibit malingering behavior.  The October 2005 VA examiner indicated that it was impossible to get an accurate evaluation from the Veteran, who reacted in a hypersensitive manner, and cooperated poorly with the examiner.  The inconsistency in active and passive range of motion testing suggested to the March 2005 examiner that the Veteran was not fully cooperating by putting forth a complete effort.  Such poor effort comports with prior findings made by the June 1998 and March 2004 VA examiners.  Thus, the Board finds the levels of limitation of motion as recorded during the June 1998, March 2004, and October 2005 VA examinations to be of minimal probative value.  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran).  

VA treatment records from March 2005 and April 2008 indicate that the Veteran could not raise his right arm above his shoulder.  Dr. A.M. has also listed clinical findings suggesting that the Veteran could not raise his right arm more than 90 degrees or even to 45 degrees.  (See September 2009 private medical records; January 2010 Dr. A.M. letter).  However, these findings of severely restricted right shoulder flexion motion are inconsistent with numerous clinical findings taken before and after these reports.  (Compare VA examinations taken March 1997, June 1998, March 2004, October 2005, June 2008, and July 2012).  Further, the record includes numerous reports by clinicians suggesting that the Veteran had low credibility and exhibited poor effort upon clinical examination.  (See VA examination reports, dated March 1997, June 1998, March 2004, October 2005, and July 2012).  The March 2005 and April 2008 examiners did not consider the prior reports of low credibility.  Although Dr. A.M. asserted that the Veteran was not malingering based upon her approximately 4 year history as his treating physician, her assertion still remains inconsistent with numerous reports given by different clinicians.  Dr. A.M.'s assertion is also inherently based upon the Veteran's reports of restricted movement and efforts during clinical examination.  See also Cartwright, Vet. App. at 25.  For these reasons, the Board does not find these reports of the Veteran's inability to raise his right arm past shoulder level persuasive evidence of an increased limitation of motion.  Id.; Caluza, 7 Vet. App. at 510-511.  

Therefore, considering all the probative medical evidence of record, the Board finds that the Veteran does not have limitation of motion of the right arm to shoulder level such that a higher rating would be warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5201.  The Board has also considered additional potentially relevant diagnostic codes.  Schafrath, 1 Vet. App. 589; 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, and 5203.  The current evaluation reflects a minimal compensable evaluation for pain and some limitation of function; however, limitation of motion to shoulder level is not shown or approximated.  Ankylosis, recurrent dislocation of humerus or scapula, or malunion of humerous or scapula, have not been demonstrated.  The preponderance of the evidence is against the award of an increased rating or any additional separate rating for a right shoulder disability.

(ii) Cervical strain

The Veteran is currently in receipt of a 10 percent evaluation under Diagnostic Code 5290 (2002) for limitation of motion of the cervical spine.  Under the old rating criteria, limitation of motion of the cervical spine was rated as 10 percent when slight, 20 percent when moderate, and 30 percent when severe.  38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5290 (2002).  

Effective September 26, 2003, the schedule for rating spine disabilities was changed to provide for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered as Diagnostic Code 5243).  When regulations are changed during the course of an appeal, the criteria that are to the advantage of the claimant should be applied.  However, if the revised regulations are more favorable to the claimant, then an award of an increased rating based on a change in law may be granted retroactive to, but no earlier than, the effective date of the change.  See VAOPGCPREC 3-2003, 65 Fed. Reg. 33422 (2000). 

For cervical spine disabilities, the General Rating Formula criteria for a 40 percent rating are: unfavorable ankylosis of the entire cervical spine.  The criteria for a 30 percent rating are: forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  The criteria for a 20 percent rating are: forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or, combined range of motion of the cervical spine greater than 170 degrees; or, muscle spasm, guarding, or localized tenderness severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 10 percent rating is provided for: forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees; or, 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; or, vertebral body fracture with loss of 50 percent or more of the height.  38 C.F.R. § 4.71a, Diagnostic Code 5237.

The fact that the revised criteria include symptoms such as pain, stiffness, aching, etc., if present, means that evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule.  See 68 Fed. Reg. 51,455 (Aug. 27, 2003).

A March 1997 VA examination noted no fixed deformities of the back, and no muscle spasm.  The Veteran demonstrated full and complete range of motion of the cervical spine without any objective evidence of pain.  

Private medical records from April 1998 reflect that the Veteran had an exacerbation of neck and low back pain that greatly limited activities of daily living.  He exhibited much guarding.  

A June 1998 VA examination showed cervical spine forward flexion to 10 degrees, right and left lateral flexion to 20 degrees, and left and right lateral rotation to 40 degrees; however, the examiner indicated that these ranges of motion were not accurate because the Veteran was not putting forth a full effort, and that there was no objective evidence of painful motion in any movements of the cervicolumbar spine, and no evidence of muscle spasm.  

VA treatment records from November 2000 show that the Veteran had a full range of cervical motion without pain.  

VA examination taken in June 2001 noted flexion and extension of the neck were to 25 degrees.  Left and right lateral bending were to 15 degrees with pain at 10 degrees.  Rotations right and left were 80 degrees.  

Private medical records from December 2001 show that the Veteran complained about cervical pain radiating to the right side.  He demonstrated a full range of motion without pain.  

MRI of the cervical spine taken in January 2002 showed cervical spine muscle spasm and a small disc protrusion at C3-4 with very mild cord impingement.  

VA examination report, dated in May 2002, showed cervical flexion to 5 degrees, extension to 10 degrees, lateral bending right and left, and rotation right and left were to 0 degrees.  No cervical spasm was noted.  The Veteran reported pain on all ranges of motion.  Manual muscle test was deemed unreliable.  The examiner commented that it was a poor physical examination.  

A June 2002 private neurological evaluation showed that the Veteran had severe neck pain radiating into his right arm.  The neurology examination as pertaining to the cervical spine was normal.  The examiner diagnosed moderate cervical spine muscle spasm and small disc protrusion at C3-4 with no clinical evidence of myelopathy.  Range of motion studies showed cervical bilateral lateral flexion, forward flexion, and extension to 30 degrees.  Rotation was to 60 degrees, bilaterally.  

A private MRI was taken in January 2004.  It showed central disc protrusion at C3-4 with effacement of the ventral cerebrospinal fluid and disc material abutted the central cervical cord without edema or displacement.  Cervical straightening was observed on the sagittal sequences. 

The March 2004 VA examination report indicated that the Veteran had no tenderness of the cervical spine, but experienced pain on all movements of the spine.  He had only 20 degrees of extension, 5 degrees of flexion, and 5 degrees of right and left lateral rotation and right and left lateral bending.  The examiner diagnosed chronic pain syndrome, with some evidence of degenerative disc disease in the lumbar spine.  However, he reported that the Veteran's symptoms were far out of proportion to his objective findings.  He opined that the Veteran's pain and limitation of motion, particularly in the cervical and lumbar areas, was of a psychogenic origin, rather than an organic musculoskeletal origin.  

A MRI taken in May 2005 showed similar findings to the April 2004 MRI.  

At the October 2005 VA examination, the examiner noted that the Veteran was difficult to examine because he did not put forth much effort, and most of his effort was directed towards avoiding answering questions.  The Veteran's flexion of the cervical spine was forward to 12 degrees, at which time he stopped due to pain.  He reported the pain starting at 6 degrees.  The Veteran extended his neck to 20 degrees, at which time he stopped due to pain.  He reported the pain began at 13 degrees.  He flexed or tilted his neck to the left 16 degrees, then stopped due to pain.  He flexed his neck to the right 9 degrees and stopped due to pain.  He rotated to the left 16 degrees, and to the right 17 degrees, stopping at those points due to reported pain.  The examiner commented that the entire spine examination was so severely compromised by the Veteran's lack of cooperation that most of the results were speculative in nature.  

 VA neurosurgery consultation from February 2006 indicates that the Veteran was diagnosed with mild spondylosis of the cervical and lumbar spine, not out of normal range for his age.  There was no evidence of myelopathy or radiculopathy with the exception of bilateral shoulder pain, which the examiner indicated could be related to the Veteran's C3-C4 foraminal stenosis.  However, given the significant functional overlay in the Veteran, additional neurological testing would have to be accomplished to confirm this.  The examiner indicated that otherwise the examination and the Veteran's presenting level of incapacitation (in a wheelchair with bilateral wrist splints and numerous complaints) were out of proportion to objective clinical evidence.

VA treatment records from May 2006 noted unspecified restricted range of motion of the cervical spine.  An MRI was obtained.  It showed disc protrusion at C3/4 with bilateral forminal stenosis.  A full neurological examination was conducted, but did not provide electrodiagnostic evidence of cervical radiculopathy.  Rather, the Veteran had bilateral carpal tunnel syndrome.  

An MRI of the cervical spine taken in July 2006 showed unchanged findings compared to 2004 reports.  The examiner noted central disc herniation, protrusion, at C3-4 and cervical straightening.  

In Dr. A.M.'s August 2006 notes, the Veteran reported right sided numbness associated with neck pain.  

VA cervical spine MRI taken in August 2007 again showed disc protrusion at C3-4, but the protrusion did not have contact with the cervical spinal cord.  

VA physical therapy records from April 2008 include comments that the Veteran's range of cervical motion was grossly limited to 50 percent.  Forward (flexion) bending and extension were limited to 25 percent.  

A VA neurology examination from June 2008 shows that the Veteran had bilateral carpal tunnel syndrome.  

The Veteran had another VA cervical spine examination in June 2008.  He reported that his neck pain had increased in severity since the last examination in 2005.  He reported numbness in his bilateral upper extremities.  He described the pain as a constant, moderate pain radiating into both arms.  Clinical examination showed guarding, tenderness, and painful motion.  However, spasm, atrophy, or weakness was not observed.  The examiner did not find spasm or guarding severe enough to result in an abnormal gait or spinal contour.  He found posture and gait to be normal, but noted that the Veteran tilted his head slightly to the right.  Reverse lordosis was the only abnormal spinal curvation observed.  Motor strength was normal for both arms.  However, sensory and reflex examinations were decreased without any clear cut distribution.  Ankylosis was not found.  

Cervical active forward flexion was to 40 degrees, active and 45 degrees, passive with pain beginning at 30 degrees on both movements.  Extension was to 45 degrees active and passively with pain beginning at 40 degrees.  No additional functional loss was found upon repetitive motion for either flexion or extension.  Right lateral flexion was to 40 degrees active and passively with pain beginning at 25 degrees.  Repetitive motion showed an additional limitation to 30 degrees.  Left lateral flexion was to 35 degrees, active motion with pain beginning at 20 degrees; passive motion was to 40 degrees with pain beginning at 20 degrees.  No additional functional loss was found upon repetitive motion.  Cervical lateral rotation was to 55 degrees bilaterally with pain beginning at 40 degrees on the right and 30 degrees on the left.  Repetitive motion showed an additional limitation to 50 degrees.  The examiner noted prior cervical spine imaging studies.  He diagnosed herniated nucleus pulposus and cervical spinal stenosis.  He stated that there was no clinical evidence of cervical radiculopathy.  

A private June 2009 MRI of the cervical spine showed cervical muscle spasm, central C3-4 posterior disc protrusion abutting the spinal cord, and mild eccentric posterior bulging disc limited to epidural space C4-5 disc level.  

In January 2010, Dr. A.M. provided an evaluation.  She reviewed the claims folder and noted that she had been the Veteran's treating physician since June 2006.  Upon clinical examination, the Veteran could not lift his head due to severe muscle spasm.  Forward flexion was limited to 15 degrees.  She stated that the Veteran had radiculopathy in both extremities due to cervical strain.  Consequently, he could not undress or perform similar daily activities.  His only means of pain relief is bed rest.  She believed he had 3 to 5 days per week of incapacitating back spasm.  

VA physical therapy records from February 2010 show that the Veteran had "marked" limitation of motion [less than 50 percent] of the cervical spine due to pain.  He described complete numbness, but exhibited normal strength in both arms.  

VA physical therapy records from March 2010 reflect that the Veteran had a limited cervical flexion of "two inches from chest."  Extension was full.  Rotation was to 40 degrees bilaterally.  Lateral flexion was to 30 degrees bilaterally.  He exhibited full motor strength in his upper extremities.  However, he reported impaired sensation in his face and upper extremities.  

VA treatment records from June 2010 showed that the Veteran had limited range of motion of his neck due to pain.  He also reported facial numbness.  He had no reflexes in his upper extremities, but exhibited normal strength.  The examiner assessed neck and arm pain with numbness from disc protrusion.  VA physical therapy notes from May and June 2010 reflect that the Veteran was able to perform active range of motion neck exercises with fair tolerance.  

The Veteran underwent VA cervical spine examination in October 2010 as part of a SMC claim.  The examiner reviewed the claims folder and queried the Veteran.  The Veteran reported having severe flare-ups of neck pain necessitating bed rest.  He affirmed having stiffness, weakness, spasm, restricted motion, and pain due to his cervical spine disability.  Gait and posture were normal.  Reverse lordosis was noted, but he did not have scoliosis or other abnormal spinal curvature.  Cervical muscle examination showed guarding, tenderness, and painful motion.  Atrophy, spasm, and weakness were not observed.  Upper extremity reflexes were hypoactive (+1) bilaterally and sensation was decreased (1/2) bilaterally.  However, the Veteran had full muscle strength in both arms.  

Range of motion testing showed forward cervical flexion to 40 degrees active limited by pain and to 45 degrees passive, with pain beginning at 30 degrees.  No additional limitations were found upon repetitive motion testing.  Extension was to 45 degrees active and passive, with pain beginning at 40 degrees.  Right lateral flexion was to 40 degrees active and passive, with pain beginning at 35 degrees.  Left lateral flexion was to 40 degrees active and passive, with pain beginning at 30 degrees.  Right lateral rotation was to 55 degrees active and 60 degrees passive, with pain for both beginning at 50 degrees.  Left lateral rotation was to 60 degrees active and 70 degrees passive, with pain beginning at 50 degrees for both motions.  The examiner diagnosed herniated nucleus pulposus C3-C4 and cervical spinal stenosis.  He commented that there was no objective evidence of cervical radiculopathy.  

VA treatment records from 2010 through 2012 show ongoing complaints of neck pain.  VA treatment records from February 2011 reflect that the Veteran had an exacerbation of neck pain.  He exhibited an unspecified limitation of motion in his cervical spine.  The most recent entry from October 2012 shows that the Veteran continued to complain about neck pain; however, this was in the context of ongoing psychiatric treatment for bipolar disorder.  

The Veteran underwent his most recent VA examination in July 2012.  The examiner reviewed the claims folder.  Range of motion showed forward flexion and extension to 45 degrees without pain.  Right and left lateral flexion were to 40 degrees limited by pain.  Right and left lateral rotation were to 60 degrees limited by pain.  For all measured movements, repetitive motion did not result in additional limitation.  The examiner did not find evidence of any additional functional impairment beyond pain and limitation of motion.  She commented that the Veteran's subjective complaints were out of proportion to objective findings.  She did not find evidence of guarding or muscle spasm.  Upon neurological evaluation, the Veteran exhibited full strength, normal sensation, and normal reflexes in his upper extremities.  The examiner found that the Veteran had intervertebral disc syndrome of the cervical spine, but did not experience any incapacitating episodes.  She noted that he used a cane and neck pillow at night.  She reviewed prior imaging studies.  She diagnosed herniated nucleus pulposus and cervical spinal stenosis without objective evidence of myelopathy, radiculopathy, or neuropathy.  A more precise diagnosis was not possible as there was no objective data to support it.  

An MRI of the cervical spine taken in July 2012 showed mild reversal of the normal cervical lordosis, C3-4 posterior central disc protrusion with minimal endplate degenerative changes, abutting and possibly mildly impinging on the spinal cord. C3-4 bilateral moderate neural foraminal stenosis.  

In April 2013, the Veteran asserted that the July 2012 VA examination findings were inaccurate and Dr. A.M.'s assessment more closely captured the Veteran's true disability picture.  

The Veteran contends a rating in excess of 10 percent is warranted for his cervical strain disability.  At the outset, the Board observes that descriptions given in the pre-amended Diagnostic Code 5293 are vague.  They have been considered, but overall, are not found to present a basis for a higher rating.  

For a rating in excess of 10 percent, the Veteran must demonstrate moderate limitation of motion or forward flexion of the cervical spine to 30 degrees or less; or, combined range of motion of the cervical spine to 170 degrees or less; or, muscle spasm, guarding, or localized tenderness severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5290 (2002), Diagnostic Code 5237 (2012).    

Here, the Veteran has refused to cooperate with examiners or refused to provide his full effort during several VA examinations.  (See VA examination reports from June 1998, May 2002, March 2004, and October 2005).  He has a self interest in magnifying his symptoms to examiners.  Cartwright, 2 Vet. App. 24, 25 (1991) (although personal interest does not affect competency, it may affect credibility of the evidence).  The examiners have expertise in correlating objective clinical findings to subjective reports of symptoms.  The Board considers their credibility or effort assessments to be plausible and far more probative than the Veteran's assertions.  Caluza, 7 Vet. App. at 510-511.  Hence, the clinical findings of severe limited range of motion on examinations where the examiner questioned the Veteran's credibility or effort are not probative to show findings warranting an increased rating.  (See VA examination reports taken in June 1998, May 2002, March 2004 and October 2005).  

When the Veteran has cooperated with examiners, the Board finds his overall cervical spine disability results in no more than a mild limitation of motion, with the Veteran's cervical forward flexion generally being greater than 30 degrees.  The Board notes a June 2001 report of limitation of forward flexion to 25 degrees and private June 2002 examination showing forward flexion to 30 degrees.  More recently, an April 2008 physical therapy notes included findings that cervical spine range of motion was reduced by 50 percent.  However, these findings of forward flexion limitation are not sufficient to warrant a higher rating in light of numerous additional records showing greater cervical flexion mobility and subsequent findings that the Veteran had low credibility during clinical evaluation.  (See December 2001 private medical records showing full range of cervical motion; VA examination reports from March 2004 and October 2005; see also VA treatment records from February 2006 noting significant psychological overlay in the Veteran's reports; October 2010 and July 2012 VA examination reports). 

Notably, Dr. A.M. listed cervical forward flexion to 15 degrees.  Dr. A.M.'s findings greatly contrast with range of motion studies taken as part of June 2008 and October 2010 VA examinations.  Although she reviewed the claims file and found the Veteran to be credible, her reports are inconsistent with findings before and after her clinical evaluation.  Due to such inconsistency, the Board does not consider her findings to be probative.  Caluza, 7 Vet. App. at 510-511 (1995).

The Board has considered 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain in connection with Diagnostic Code 5237.  DeLuca, 8 Vet. App. at 206 -07.  However, an increased rating for complaints about pain, excess fatigability, decreased functional ability, etc. is not warranted.  As detailed, on examinations taken in June 2008, October 2010, and July 2012, with regard to his cervical spine, pain was the major functional impact.  Likewise, pain had an effect on functional impairment.  His functional impairment due to pain and weakness has been considered in the 10 percent disability rating for cervical strain.  While acknowledging the effects on his daily activities reflected in the VA examination report of record, there is no basis for a higher rating based on additional functional loss due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups.  

The credible evidence does not show intervertebral disc syndrome resulting in incapacitating episodes or associated neurological manifestations of cervical strain.  (VA examination reports from June 2008, October 2010, and July 2012).  The Board observes that the Veteran has bilateral carpal tunnel syndrome which is productive of neurological symptoms in both arms.  (See June 2008 VA neurology examination).  Hence, ratings based upon incapacitating episodes or neurological manifestations are not for current consideration.  38 C.F.R. § 4.71a, DC 5237, Note 1, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

In summary, preponderance of the credible evidence is against the claim.  The Board does not find that the criteria for a 20 percent rating for the Veteran's cervical spine strain have been met under any of the applicable old or new regulations.  38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5290 (2002) and Diagnostic Code 5237 (2012).

(iii) Lumbar spine

The Veteran is currently in receipt of a 10 percent rating pursuant to Diagnostic Code 5292 for limitation of motion of the lumbar spine.  38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5292 (2002).  Under Diagnostic Code 5292, limitation of motion of the lumbar spine was rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 40 percent disabling when severe.  Id.

Prior to September 23, 2002, intervertebral disc syndrome that was postoperative, cured, warranted a noncompensable evaluation; intervertebral disc syndrome that was mild warranted a 10 percent evaluation; intervertebral disc syndrome that was moderate with recurring attacks warranted a 20 percent evaluation; intervertebral disc syndrome that was severe, with recurring attacks with intermittent relief warranted a 40 percent evaluation; and IDS that was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief warranted a 60 percent evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002).  

The rating criteria for lumbar spine disabilities have changed.  Effective September 23, 2002, intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.  An incapacitating episode contemplates physician prescribed bed rest.  38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5293 (effective on and after September 23, 2002), Note 1.  

Effective September 26, 2003, the schedule for rating spine disabilities was changed to provide for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered as Diagnostic Code 5243).  Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  The incapacitating episode rating scheme set forth in Diagnostic Code 5243 is nearly the same as that utilized in the 2002 version of Diagnostic Code 5293. 

The amended rating criteria now define normal range of motion for the various spinal segments 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 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 thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion.  See 38 C.F.R. § 4.71a, General Rating Formula, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). 

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, the revised rating criteria provide a 40 percent rating for: forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  

A 20 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 10 percent rating is provided for: forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 

The fact that the revised criteria include symptoms such as pain, stiffness, aching, etc., if present, means that evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule.  See 68 Fed. Reg. 51,455 (Aug. 27, 2003).

The VA's General Counsel has determined that Diagnostic Code (DC) 5293, intervertebral disc syndrome, is based upon loss of range of motion, and therefore 38 C.F.R. §§ 4.40 and 4.45 are applicable in determining the extent of a veteran's disability due to intervertebral disc syndrome.  In addition, it was concluded that, as DC 5293 involves limitation of range of motion, a Veteran could not be rated under DC 5293 for intervertebral disc syndrome based upon limitation of motion, and also be rated under, for example, DC 5292, because to do so would constitute evaluation of an identical manifestation of the same disability under two different diagnoses. See VAOPGCPREC 36-97. 

The March 1997 VA spine examination report did not reveal postural abnormalities or fixed deformities of the back.  No muscle spasm was observed.  Lumbar spine flexion was to 45 degrees, and backward extension was to 20 degrees.  Right and left lateral flexion were 25 degrees.  The examiner commented that the Veteran made an incomplete effort on range of motion testing.  He did not find objective evidence of pain on motion of any movement of the cervical or lumbar spine.  Neurological examination did not reveal any abnormalities.  

Private medical records from April 1998 reflect that the Veteran had an exacerbation of neck and low back pain that greatly limited activities of daily living.  He exhibited much guarding.  

A June 1998 VA examination report revealed degenerative joint disease of the lumbar spine only.  The Veteran reported moderate low back pain with radiation to legs.  Lumbar spine flexion was to 30 degrees, backward extension was to 10 degrees, right and left lateral flexion was to 15 degrees, and right and left rotation were to 20 degrees.  The examiner indicated that these ranges of motion of the cervical and lumbar spine were not accurate because the Veteran was not putting forth a full effort.  There was no objective evidence of painful motion in all movements of the cervicolumbar spine.  Muscle spasm, weakness, tenderness to palpation, postural abnormalities, fixed deformities, and muscle atrophy were not observed.  The examiner diagnosed dorsolumbar strain, asymptomatic. 

A VA bone survey conducted in September 2000 noted degenerative changes at the glenohumeral joints and lateral sacralization of L5 on the left side.

The June 2001 VA examination report noted complaints of intense pain of the neck and low back.  The Veteran reported two to three severe flare ups a year.  Lumbar spine flexion was to 70 degrees limited by pain, extension was to 10 degrees, lateral bending right and left were to 15 degrees, and rotation right and left were to 30 degrees with pain beginning at 10 degrees.  There was tenderness to palpation of L3 to S1 paravertebral muscles bilaterally.  No neurological abnormalities were noted.  The examiner diagnosed cervical dorsolumbar strain.

A September 2001 CT of the lumbar spine noted a mild posterior diffuse disc bulge at L2-L3 and L3-L4, as well as mild hypertrophic facet and osteoarthritis changes, and spondylosis.

VA spine examination report of May 2002 noted that the Veteran complained of constant severe low back pain.  Lumbar spine flexion was to 5 degrees, extension to 0 degrees, and lateral bending right and left of 5 degrees.  The Veteran complained of pain with all motions of the neck and low back.  He had a moderate lumbar spasm from L1 to L5.  Manual muscle test was deemed unreliable.  The examiner described it as a poor physical examination.  He diagnosed dorsolumbar strain and a bulging disc of L2-3 and L3-4, not secondary to a dorsolumbar strain. The examiner noted that the bulging lumbar discs were not related to the Veteran's lumbar strain because they were not noted on CT reports performed shortly after service.

The Veteran underwent a state workers disability evaluation in June 2002.  It showed that he was unable to complete forward flexion range of motion testing.  He had left and right lateral lumbar flexion to 10 degrees.  No associated neurological findings were made.  

Private medical records, dated in July 2002, showed that the Veteran lacked 8 inches on forward flexion motion.  Entries from March and September 2002 also suggest that he had pain radiating into both legs.  

An MRI of the lumbar spine taken in October 2002 showed early posterior bulging disc at L4-L5 limited to epidural space and extending into both neural foramina and causing mild to moderate obliteration of the inferior perineural fat.  Also, associated bilateral posterolateral spondylotic component was causing mass effective upon both L4 nerves, more predominate on left side.  

VA treatment records from October 2003 show that the Veteran had a coordinated and smooth gait.  No tenderness or spasm was found.  However, he had some unspecified limitation in range of motion due to pain.  No muscle atrophy or weakness was found.  

A MRI taken in January 2004 showed that the bulging disc at L4-5 remained stable.  Disc material bulged through inferior neural foramina bilaterally, but no nerve root compromise was observed.  

VA reexamined the Veteran in March 2004.  He complained of a dull aching pain across his lumbosacral spine.  Examination of the spine revealed no tenderness, but the Veteran complained of pain on all movements.  In the lumbar area, he had only 10 degrees of motion in all planes because of pain.  Reflexes and sensation were intact in the lower extremities, and there was no evidence of muscle atrophy.  X-rays noted a transitional fifth lumbar vertebra with a limbus vertebra of the transitional fifth lumbar vertebra and several millimeters of retrolisthesis at L4-L5. 

The examiner diagnosed chronic pain syndrome, with some evidence of degenerative disc disease in the lumbar spine.  However, he commented that the Veteran's symptoms were far out of proportion to objective findings.  He believed the Veteran's pain and limitation of motion, particularly in the cervical and lumbar areas, were of a psychogenic origin, rather than an organic musculoskeletal origin.

Private neurology examination from March 2004 showed that there was no objective evidence of any neurological disorder secondary to the low back disability.  

An April 2004 MRI noted bilateral caudal neural foraminal narrowing at L4-L5 secondary to degenerative facet hypertrophy and a disc bulge. 

In August 2004, SSA recognized the Veteran as being disabled due to a primary diagnosis of back disability and secondary diagnosis of psychological disorder.  

MRI taken in May 2005 showed moderate bilateral foraminal stenosis at L4/5 due to bilateral facet arthropathy.  Left L3/4 mild left foraminal disc protrusion abutting the exiting nerve root and possibly impinging it.  

The Veteran had another VA examination in October 2005.   He reported back pain radiating to his lower extremities, as well as stiffness and weakness.  The examiner did not elicit any evidence of flare ups.  The examiner noted that the Veteran was difficult to examine because he did not put forth much effort, and most of his effort was directed towards avoiding answering questions and screaming every time someone came near him to touch him.  He commented that the Veteran appeared to think that shouting loudly and whining a lot impressed everyone that he was having severe pain. 

The Veteran stated he was unable to walk without assistive devices.  He wore a cervical collar and a back brace to the examination, and presented in a wheelchair.  He could not walk more than 100 feet or stand for more than 5 minutes.  He also reported being unsteady, and having a history of falling.  He refused to get out of the wheelchair during the examination.  The Veteran refused to participate in range of motion studies for his lumbar spine.  He would not leave his wheelchair, refused to take off his low back brace, and refused to stand for any length of testing.  He was poorly cooperative when neurological examination was attempted as well, refusing to remove splints for examination.  The examiner diagnosed stable bulging disc at L4-L5 with disc material bulging through his inferior neuroforaminal, but not compromising the nerve roots.  He did not find evidence of radiculopathy.  He commented that the entire spine examination was so severely compromised by the Veteran's lack of cooperation that most of the results were speculative in nature.

VA treatment records from November 2005 show that the Veteran continued to have chronic pain.  Examination was limited, but showed weak dorsiflexion of feet against resistance.  The examiner assessed lumbar radiculopathy.  However, subsequent neurological consultation in February 2006 did not show any associated neurological abnormality.  The examiner recommended electrodiagnostic testing as the Veteran's presentation (use of wheelchair and bilateral wrist splints) was out of proportion to clinical findings.  

MRI taken in July 2006 showed bulging disc at L4-5 without nerve root impingement.  Lumbar straightening was also observed.  Subsequent MRI from August 2007 revealed mild bulging disc material at L5-S1, mild scatter bony degenerative changes, and dorsal synovial cyst formation at L3.  

VA treatment records from April 2008 reflected that the Veteran had lumbar flexion to 50 percent of normal (45 degrees).  Neurological examination was negative.  The examiner remarked that chronic opioid therapy did not improve his function and referred the Veteran to the inpatient pain rehabilitation program.   

The Veteran underwent another VA lumbar spine examination in June 2008.  He reported that his back disability had increased since the previous examination.  He noted radiculopathy in both legs.  No bowel or urinary symptoms were found to be associated with his spine disability.  He reported severe flare-ups on a daily basis that necessitated bed rest.  However, the examiner determined that no incapacitating episodes had occurred within the past year.  Clinical examination showed a normal posture and gait.  The only abnormal spinal curvature found was reverse lordosis.  Neurological examination of the lower extremities showed full strength, but decreased sensation with no clear cut distribution.  Reflexes were normal.  Ankylosis was not observed.  

Lumbar spine forward flexion was to 45 degrees with pain beginning at 40 degrees.  Repetitive motion did not cause additional function impairment.  Extension was to 20 degrees with pain beginning at 10 degrees.  Repetitive motion limited extension to 10 degrees.  Right lateral flexion was to 25 degrees with pain beginning at 15 degrees.  Repetitive motion limited right lateral flexion to 20 degrees.  Left lateral flexion was to 25 degrees with pain beginning at 20 degrees.  Repetitive motion did not cause additional function impairment.  Right and left lateral rotation were to 30 degrees with pain beginning at 25 degrees.  Repetitive motion did not cause additional functional impairment.  The examiner reviewed imaging studies from April 2004 and May 2005 and electrodiagnostic testing from October 2006.  He diagnosed degenerative disc disease lumbar spine and osteoarthritis lumbar spine.  He stated that there was no clinical evidence of lumbar radiculopathy.  

VA treatment records from August 2008 note that the Veteran had a history of malingering behaviors.  

MRI of lumbar spine from June 2009 showed mild encroachment of right neuroforamina at the L4-5 disc levels.  

In January 2010, Dr. A.M. provided results of her examination.  She had treated the Veteran since June 2006 and also reviewed the claims folder.  Pertinent findings showed moderate lordosis and stiffness of paraspinal lumbar muscles.  Forward flexion was limited to 20 degrees.  Lateral flexion was 10 to 15 degrees.  He had no lumbar extension.  His gait was slow.  He had difficulty completing activities of daily living.  Dr. A.M. did not believe the Veteran was malingering.  

VA physical therapy records from February 2010 show that the Veteran had "marked" limitation of motion [less than 50 percent] of the lumbar spine due to pain.  He had mild sensation in his lower extremities.  

The Veteran had a VA clinical examination of his lumbar spine in October 2010 as part of a SMC aid and attendance claim.  The examiner reviewed the claims file.  The Veteran reported having severe weekly flare ups necessitating bed rest.  He was not found to have genitourinary symptoms related to his back disability.  He reported radiating pain to his lower extremities.  However, the examiner determined that incapacitating episodes were not present.  Clinical examination of the lumbar spine showed normal posture and gait.  The only abnormal spinal curvature found was reverse lordosis.  Ankylosis was not observed.  Although the Veteran had muscle spam, painful motion, and weakness, it did not result in abnormal gait or spinal contour.  Neurological examination of the lower extremities showed full strength, but decreased sensation with no clear cut distribution.  Reflexes were normal.  

Lumbar spine forward flexion was to 55 degrees with pain beginning at 45 degrees.  Extension was to 20 degrees with pain beginning at 10 degrees.  Right lateral flexion was to 30 degrees with pain beginning at 25 degrees.  Left lateral flexion was to 30 degrees with pain beginning at 20 degrees.  Right and left lateral rotation were to 30 degrees with pain beginning at 25 degrees.  Repetitive motion did not cause additional function impairment for any movement.  The examiner diagnosed degenerative disc disease lumbar spine and osteoarthritis lumbar spine.  He stated that there was no clinical evidence of lumbar radiculopathy.  

The most recent VA examination report was taken in July 2012.  The Veteran had extensive pain management treatment for whole body pain.  Lumbar spine forward flexion was to 80 degrees limited by pain.  Extension was to 30 degrees without pain.  Right and left lateral flexion and rotation were full without evidence of pain.  Repetitive motion did not cause additional functional impairment for any movement.  The examiner commented that the Veteran's subjective complaints of pain were out of proportion to objective clinical findings.  Guarding and muscle spasm were found, but it was not severe enough to result in abnormal gait or spinal contour.  

Neurological examination of the lower extremities showed full strength, normal reflexes and normal sensation.  Straight leg testing was negative.  The examiner stated that radiculopathy or IVDS was not found.  She noted that he used a back brace and cane.  She maintained the diagnoses of degenerative disc disease lumbar spine and osteoarthritis lumbar spine.  She commented that there was no objective evidence of myelopathy, radiculopathy, or neuropathy.  She stated that the Veteran's range of motion and functional impairment was much improved since Dr. A.M.'s January 2010 evaluation.  

The intervertebral disc syndrome has never been more than mild in degree and less than moderate with recurring attacks.  The Veteran did not meet or approximate the criteria for a higher rating under the pre-amended Diagnostic Code 5293.  To establish a rating in excess of 10 percent the Veteran must show: moderate limitation of motion; or, forward flexion of the lumbar spine limited to at least 60 degrees; or, combined range of motion of the lumbar spine limited to at least 120 degrees; or, muscle spasm, guarding, or localized tenderness severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5292 (2002), Diagnostic Code 5237 (2012).    

Facially, the Veteran met the range of motion criteria for 20 percent rating under both the new and old Diagnostic Codes on VA examination reports taken in March 1997, June 1998, May 2002, and March 2004.  However, on these examination reports, the examiners assessed the Veteran's credibility and/or effort as low.  The Veteran has a self interest in magnifying his symptoms to examiners.  Cartwright, 2 Vet. App. 24, 25 (1991) (although personal interest does not affect competency, it may affect credibility of the evidence).  The examiners have expertise in correlating objective clinical findings to subjective reports of symptoms.  The Board considers their credibility or effort assessments to be plausible and far more probative than the Veteran's assertions.  Caluza, 7 Vet. App. at 510-511.  Hence, the clinical findings of severe limited range of motion on examinations where the examiner questioned the Veteran's credibility or effort are not probative to show findings warranting an increased rating.  (See VA examination reports taken in March 1997, June 1998, May 2002, March 2004, October 2005 and July 2012).  

The Board notes that there are clinical examinations from April 2008 through October 2010 showing range of motion limitations sufficient to meet the 20 percent rating criteria under Diagnostic Code 5237.  38 C.F.R. § 4.71a, Diagnostic Code 5237.  (See VA treatment records from April and June 2008; February and October 2010; Dr. A.M. January 2010 report).  These examiners do not comment on the Veteran's credibility.  Meanwhile, the most recent clinical examination from July 2012 reflects a marked improvement.  Forward flexion was to 80 degrees limited by pain.  

Given the Veteran's prior history of poor credibility and marked improvement demonstrated during the July 2012 VA clinical examination, the Board considers the April 2008 to October 2010 clinical findings to be outliers.  Caluza, 7 Vet. App. at 510-511.  Without more consistent findings showing lumbar flexion limited to 60 degrees or less or moderate lumbar disability, a rating in excess of 10 percent is not warranted based upon clinical findings made from April 2008 through October 2010.  38 C.F.R. § 4.71a, Diagnostic Codes 5292 (2002), 5237 (2012).  

The Board has also specifically considered 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain in connection with Diagnostic Code 5237.  DeLuca, 8 Vet. App. at 206 -07.  However, an increased rating for complaints about pain, excess fatigability, decreased functional ability, etc. is not warranted.  As detailed, on examinations taken in June 2008, October 2010, and July 2012, with regard to his lumbar spine, pain was the major functional impact.  Likewise, pain had an effect on functional impairment.  His functional impairment due to pain and weakness has been considered in the 10 percent disability rating for lumbar strain.  While acknowledging the effects on his daily activities reflected in the VA examination report of record, there is no basis for a higher rating based on additional functional loss due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups.  

The Board has considered whether additional factors such as abnormal gait or spinal contour or combined limitation of motion to result in a more favorable rating.   However, on multiple clinical examinations, the Veteran was not found to such spinal abnormalities or limited combined range of motion as contemplated in the 20 percent rating criteria under Diagnostic Code 5237.  (See VA examination reports from June 1998, June 2008, October 2010, and July 2012; VA treatment records from October 2003); 38 C.F.R. § 4.71a, Diagnostic Code 5237.  
  
The credible evidence does not show intervertebral disc syndrome resulting in incapacitating episodes or associated neurological manifestations of lumbar strain.
(VA examination reports from March 1997, June 2001, June 2008, October 2010, and July 2012; Private neurology examination from March 2004; VA neurology consultation, February 2006).  Hence, ratings based upon incapacitating episodes or neurological manifestations are not for current consideration.  38 C.F.R. § 4.71a, DC 5237, Note 1, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

In summary, the criteria for a rating in excess of 10 percent for a dorsolumbar spine disability have not been met under either the new or old rating criteria.  Additional ratings for neurological disorder related to dorsolumbar strain have also not been met.  38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5292 (2002) and Diagnostic Code 5237 (2012).

Extraschedular considerations

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board finds that the severity of the Veteran's service-connected right shoulder, neck, and low back disabilities are fully contemplated by the rating criteria regardless of whether such symptoms are considered as part of an individual disability or based upon the combined effects of all service connected disabilities.  Mittleider v. West, 11 Vet. App. 181 (1998).  The symptoms are productive of pain, tenderness, and reduced motion.  Although the Veteran has had extensive treatment for pain, including inpatient treatment, the evidence overall indicates that there is significant psychological overlay in his perception of disability.  Numerous clinicians judged his complaints of pain to be significantly out of proportion to clinically observed orthopedic impairment.  Notably, the Veteran has a total rating for a psychiatric disability based in part upon his subjective perceptions of extraordinary pain.  For these reasons, the Board does not find the Veteran's complaints of extraordinary pain to indicate exceptional manifestations of his orthopedic disabilities.  The degree of disability exhibited for the right shoulder, cervical spine, and lumbar spine is contemplated by the rating schedule, to include as based upon the combined effects of all service connected disabilities.  See id.   Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration for any of the Veteran's increased rating claims.  38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008).

(iv) TDIU prior to December 27, 2005

The Veteran contends that he is unemployable due to his service connected disabilities.  Notably, he is in receipt of a total disability rating beginning December 27, 2005 for depression.  VA Office of General Counsel had issued a precedential opinion that a total rating renders the issue of TDIU moot for the period in which the total rating was in effect.  See VAOPGCPREC 6-99.  The opinion was withdrawn in light of Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  See also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999)).  

In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the appellant asserted that his psychiatric disability, alone, warranted a TDIU and would result in a more favorable effective date for SMC under section 1114(s).  Here, the Veteran's additional non-psychiatric disabilities result in a combined rating of only 30 percent and his psychiatric disability is rated as total beginning with the effective date for service connection on December 27, 2005.  The record does not in any way suggest that a single non-psychiatric disability results in unemployability, as detailed by findings made in the denials for higher initial ratings above.  Hence, finding entitlement to TDIU moot beginning December 27, 2005 would not affect his SMC claim based on aid and attendance or housebound status.  For these reasons, the Board considers entitlement to TDIU beginning December 27, 2005 to be moot.  See also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999)); Bradley, 22 Vet. App. at 294.  

The record also shows that the Veteran was gainfully employed through January 22, 2002.  (See May 2005 TDIU application top of Volume 4).  Thus, the relevant time period for consideration is between January 22, 2002 and December 27, 2005.  

In order to meet the criteria for an award of TDIU, there must be impairment so severe that it is impossible to follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, the central inquiry is "whether the Veteran's service connected 
disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation.  VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992).  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.

VA regulations establish objective and subjective standards for an award of total rating based on unemployability.  When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more.  When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation.  See 38 C.F.R. § 4.16(a).  A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a).  Thus, the Board must evaluate whether there are circumstances, apart 
from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability.  A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the 
rating schedule.  See Parker v. Brown, 7 Vet. App. 116, 118 (1994). 

For the period between January 22, 2002 and December 27, 2005, the Veteran was service connected for the following disabilities: right shoulder, 10 percent; cervical strain 10 percent; lumbar strain, 10 percent; scar right inguinal hernia repair, noncompensable; scar residual right hand injury, noncompensable; and prostatitis, noncompensable.  His overall combined rating is 30 percent.  The 38 C.F.R. § 4.16(b) criteria are for application.    

The Board notes that SSA awarded disability benefits beginning January 22, 2002 due to a primary low back disability and affective disorder as a secondary disability.  Although pertinent, the SSA determination by itself is not sufficient to warrant an outright grant.  Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA).  

In September 2002, Dr. H.G. deemed the Veteran unemployable due to his neck disability and depressive syndrome.  In January 2004, Dr. T.G. stated that the Veteran was unemployable due to, not yet service connected, psychological disabilities and service connected low back and neck disabilities.  Private hospital records from October 2002 and April 2003 reflect that the Veteran had inpatient treatment for psychological disorders.  As noted above, he was not service connected for a psychiatric disability during the pertinent time period.  Since the conclusions as to his employability were made partly based upon his psychological disabilities, the Board considers these findings of unemployability less persuasive.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; Gabrielson v. Brown, 7 Vet. App. 336 (1994).  

VA examinations taken in May 2002, March 2004, and October 2005 reflect that examiners found the Veteran to have malingering or exaggerated behaviors which impaired their ability to provide a reliable assessment on his service connected orthopedic capabilities.  The October 2005 VA examiner went so far as to characterize the entire examination as speculative based upon the Veteran's poor effort.  Given the consistency among different examiners as to the Veteran's poor efforts, these findings are persuasive to show low credibility.  Consequently, his lay assertions of orthopedic disability are unreliable.  Cartwright, 2 Vet. App. 24, 25 (1991); Caluza, 7 Vet. App. at 510-511.  They do show that his right shoulder, low back, and neck disabilities were of such a severity as to preclude gainful employment.  See id.

In summary, the evidence does not suggest that the Veteran's service connected disabilities, jointly or singly, have rendered him unemployable for period between January 22, 2002 and December 27, 2005.  The evidence does not warrant referral to the C&P Director for extraschedular TDIU consideration.  See 38 C.F.R. § 4.16(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

A rating in excess of 10 percent for a right shoulder disability is denied.

A rating in excess of 10 percent for a cervical spine disability is denied.

A rating in excess of 10 percent for a lumbar spine disability is denied.

Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.



REMAND

On December 17, 2010, the RO denied entitlement to special monthly compensation (SMC) based on aid and attendance or housebound status.  The Veteran filed a timely notice of disagreement on December 2, 2011.  A statement of the case has not been issued.  Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that this issue remains pending in appellate status (see 38 C.F.R. § 3.160(c) (2012)) and requires issuance of a statement of the case.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 19.26 (2012).  This claim is not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal.  38 C.F.R. § 20.200 (2012).  The Board's actions regarding this issue are taken to fulfill the requirements of the Court in Manlincon.

Accordingly, the case is REMANDED for the following action:

 Issue a statement of the case (SOC) to the Veteran and his authorized representative addressing the issue of entitlement to special monthly compensation based on aid and attendance or housebound status.  The Veteran must be advised of the time limit for filing a substantive appeal.  38 C.F.R. § 20.302(b).  Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, 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).



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs