Citation Nr: 1319738 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-45 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a disability evaluation in excess of 40 percent for right iliolumbar ligament strain. 2. Entitlement to a disability rating in excess of 10 percent for right shoulder rotator cuff strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1994 to June 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran was scheduled to appear at a Travel Board hearing in October 2012, but failed to appear. He did not offer a reason for his failure to appear, nor did he request that his hearing be rescheduled. As such, the Board deems his hearing request withdrawn. Lastly, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the appellant or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In an April 2010 rating decision, the RO denied entitlement to TDIU. The Veteran has not appealed that denial. Therefore, the issue of entitlement to TDIU is not part of the claims for increased ratings for the lumbar spine and shoulder disabilities. The issue as to whether new and material evidence has been received to reopen a claim for service connection for a neck disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Right iliolumbar ligament strain is manifested, at worst, by forward flexion to 60 degrees, without any findings of unfavorable ankylosis of the entire thoracolumbar spine. 2. Right shoulder rotator cuff strain is shown to be manifested by subjective complaints of pain causing a reduction in physical activity; without degenerative changes on x-ray study; and objective evidence of limitation of flexion to, at worst, 150 degrees or above shoulder level. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for the Veteran's right iliolumbar ligament strain, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). 2. The criteria for the assignment of a disability rating in excess of 10 percent for the service-connected right shoulder osteoarthritis have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in February 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The February 2008 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records and post-service VA and private treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Board finds that VA has fulfilled its duty to assist in obtaining such records. The Board notes that during the November 2009 VA examination, the Veteran reported ongoing treatment with a private provider. However, though the RO requested the Veteran submit the records or a medical release so the RO could obtain the records in letters dated in October and December 2009, the Veteran has not responded and the private treatment records could not be obtained and added to the file. Inasmuch as the RO attempted to assist the Veteran in obtaining these records, but the Veteran failed to provide the necessary release for VA to attempt to obtain these records on his behalf, the Board concludes that VA has satisfied its duty to assist the Veteran in obtaining pertinent treatment records. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). In this case, the Veteran was provided VA examinations in May 2008 and November 2009 to determine the nature and severity of the Veteran's service-connected disabilities. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports along with the remainder of the evidence of record contain sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board also notes that the Veteran was scheduled for a VA examination in June 2010 on related claims; however, the Veteran failed to report. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating Claims Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). 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 considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. A. Increased Rating for the Lumbar Spine In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Veteran was granted service connection for a back disorder in a March 1998 RO decision due to an in-service injury. In a January 2008 VA progress note, the Veteran was evaluated for back pain. The Veteran complained of poor sleep due to his back pain and low back pain that goes into the buttocks, hips, and rarely into the legs. He denied numbness or shooting pain. Upon physical examination, the examiner noted flexion to approximately 110 degrees and extension from 10 to 20 degrees. Lateral flexion was not difficult, but the Veteran reported pulling with rotation. The diagnosis was chronic low back pain. X-ray reports from that time noted an unremarkable lumbar spine series. During a May 2008 VA examination, the Veteran reported he is not employed and that he stopped work as a truck driver due to other health issues which disqualified him from work. He was in a motor vehicle accident in March 2007 when he hit a snow plow, he stated that both he and the snow plow driver were ok. The Veteran is able to bathe and dress himself. He can drive, vacuum, do laundry, cook, and do some yard work. He avoids "pushing himself." He denied treatment for back pain by an emergency room or urgent care. The Veteran complained of numbness from back to buttocks bilaterally for the past two years. He also reported morning stiffness, though he does not use a brace or assistive device. He has daily pain in varying degrees without specific flares. Upon physical examination, the Veteran endorsed tenderness with palpation of vertebra at the area of his lumbosacral spine without withdrawal or grimace. Range of motion findings of the lumbar spine included forward flexion to 90 degrees the first time, 110 degrees the second time, and 100 degrees the third time. Extension was measured to 25 degrees the first time, 20 degrees the second time and 26 degrees the third time. Right lateral flexion/rotation was measured to 28 degrees, 20 degrees, and 25 degrees. Left lateral flexion/rotation was measured to 34 degrees each time. Straight leg raise was to 70 degrees bilaterally and caused posterior hip pain but no radicular symptoms. A July 2008 VA progress note indicates the Veteran called the hospital to report he injured his back and went to the emergency room. An April 2009 private treatment records indicates the Veteran presented to the emergency room with complaints of back pain which has gotten progressively worse. He complained he is unable to bend down and put his socks on without someone's help. He also reported that there is a radiation pain around to his abdomen, but denied pain, weakness, or numbness of his lower extremities. Upon physical examination, the paraspinal muscles were tender in the lower lumbar region. In a May 2009 letter, the Veteran reported that his back has declined to the point that he cannot sleep at night without muscle relaxers and pain medication. He cannot sit in a car or stand for more than 20 or 30 minutes. He complained of radiating pain down the back of his right leg and numbness. During a November 2009 VA examination, the Veteran reported that he would have severe back pain, 9-10/10, if he does not take his pain medication. With his medication, his pain intensity is about a 3-4/10. He has constant stiffness in his lower back, and pain located in the middle and lower part of the middle back which is dull and sharp at times. The sharp pain goes down his legs about three to four times a month and lasts about 15 to 20 minutes each time. The Veteran denied flare-ups in the back condition and reported he has never been advised any bed-rest by a medical provider because of the back condition. He reported some occasional numbness in his legs, but no weakness, bladder or bowel complaints or erectile dysfunction. The Veteran can walk unaided about three to four blocks nonstop before worsening back pain. He has no history of falls or trauma to his back since service. The Veteran was not employed and had not worked for three months. He claimed when he was working, he was unable to stand more than 2 hours at a time; after that, the pain started to shoot down his legs. He reported no problems with daily activities. Upon physical examination, the examiner noted forward flexion to 60 degrees, extension to 20 degrees, left and right lateral flexion to 15 degrees, left and right lateral rotation to 20 degrees. There was no change upon repetitive testing. There was no change against resistance of gravity. There was no limitation of motion on testing of fatigability, weakened movement, or incoordination. The Veteran reported tenderness on the spinous processes of L1-L5 and paraspinal areas on the same level on both sides. There was no evidence of guarding or any other problem with the musculature in the back. There was no fixed deformity or ankylosis in the thoracolumbar spine and no sacroiliitis. Neurological examination of the lower extremities was also conducted and found to be normal. The Veteran did not report for X-ray testing. The diagnosis was chronic lumbar strain. In a November 2009 statement, the Veteran asserted that his back and shoulder pain have steadily declined over the past 12 years. He claimed that after his conditions worsened two years ago, he was forced to stop driving a truck over the road. He claimed his non-service connected neck disorder was also the cause. The Veteran reported he has difficulty interacting with his children, and he cannot accomplish everyday things as far as household chores or cooking because he cannot be on his feet that long. He complained of constant pain, but stated that his prescribed medications make him sleep most of the day and night. He is not able to work due to radiating pain. He also complained of problems being in a car more than 20 minutes. The Veteran failed to report for a June 2010 VA examination. Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Under the current rating criteria, degenerative arthritis of the spine (designated at Diagnostic Code 5237) is rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Intervertebral disc syndrome (designated at Diagnostic Code 5243) is rated either pursuant to the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The diagnostic code criteria pertinent to rating spinal disabilities in general were revised effective September 26, 2003 (as codified in relevant part at 38 C.F.R. § 4.71, Diagnostic Codes 5237 through 5243). A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5237 for lumbosacral strain, Diagnostic Code 5242 for degenerative arthritis of the spine, and Diagnostic Code 5243 for intervertebral disc syndrome. In addition to evaluating intervertebral disc syndrome (IVDS) under the general rating formula for diseases and injuries of the spine outlined above, it may also be rated based on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25. Note (1) defines an 'incapacitating episode' as 'a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.' 'Chronic orthopedic and neurologic manifestations' were defined as 'orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.' Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Initially, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The November 2009 VA examination report noted that the Veteran denied any bedrest prescribed by a medical professional because of the back disorder. Therefore, a higher rating based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). As the Veteran is not entitled to an increased rating based on incapacitating episodes, it is necessary to determine whether he is entitled to a higher rating based on her orthopedic and neurological manifestations. Turning to the orthopedic manifestations, the limited thoracolumbar forward flexion shown by the Veteran at his November 2009 VA examination does not warrant the currently rated disability rating of 40 percent; however, the Board will not disturb the current 40 percent disability rating. The Board notes that in order for the Veteran to be awarded a disability rating higher than 40 percent under the general spine formula, the evidence must show the presence of spinal ankylosis. As discussed in detail above, the evidence fails to demonstrate unfavorable ankylosis of the entire thoracolumbar spine to obtain a higher evaluation. See supra 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). In that regard, the evidence simply does not show any ankylosis of the lumbar spine. In fact, the aforementioned ranges of motion findings do not demonstrate that the joint was immobile or fixed in place. As the Veteran has not been noted to have ankylosis of the spine at any time, the Board finds that a disability rating in excess of 40 percent is not warranted for his orthopedic findings. Regarding his neurological symptoms, as noted above, the Veteran has asserted he has occasional numbness in his lower extremities. However, the November 2009 VA examiner found no objective evidence of neurological abnormalities. There was no sensory loss in any dermatome, no atrophy of the thigh or calf muscle, and motor strength was normal. As a result, the Veteran is not entitled to a separate rating for his neurological symptoms. In sum, an evaluation in excess of 40 percent rating for right iliolumbar ligament strain is not warranted at any time during the appeals period. The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected back disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. The record demonstrates that the Veteran has not required hospitalization as a result of his back disability. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. B. Increased Rating for the Right Shoulder In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Veteran was granted service connection for a right shoulder disorder in a March 1998 RO decision due to an in-service injury. In a January 2008 VA progress note, the Veteran was evaluated for shoulder pain. The Veteran complained that his right shoulder pops and crack more. The Veteran complained of muscle tension in his shoulder that runs into his neck. He fatigues more. He is right handed and his grip is ok. The Veteran reported he noticed numbness in his fingers when carrying a pack of soda which triggered pain in the front and top of shoulder. Upon physical examination, the right shoulder had a popping with rotation. Motion was good, but tender at acromium process. Right handed grip was noted as a little weaker than the left. Arms were found weaker with stress applied and extended to side and in front. Light dropping was noted, also with pulling and pushing. The diagnosis was right shoulder pain. An x-ray report from that time found no significant osseous abnormality in the right shoulder. During a May 2008 VA examination, the Veteran reported he is not employed and that he stopped work as a truck driver due to other health issues which disqualified him from work. He was in a motor vehicle accident in March 2007 when he hit a snow plow, he stated that both he and the snow plow driver were ok. The Veteran reported he is able to bathe and dress himself. He can drive, vacuum, do laundry, cook, and do some yard work. The Veteran stated he is right hand dominant and since late examination in 1997, he has had pain in the shoulder with demonstrated rotation or cirumduction or with pressure to the area in sleep. Pain is intermittent, but, when asked, he stated that he has pain while seated and with movement. This pain resolves with cessation of movement. He denied joint stiffness, warmth, redness. He is able to use the right hand to comb his hair, brush teeth, and eat. He was not limited in dressing by the right shoulder. He was not limited in driving a semi-truck by the right shoulder. Upon physical examination, the Veteran was able to forward flex and adduct to 180 degrees without limitation on repetitive motion. He also had rotation to 90 degrees without limitation on repetitive motion. He reported discomfort with all ranges of motion and was slow to perform range of motion testing without grimace or guarding evidence. Strength of each shoulder in flexion and extension against resistance was equal at 5/5. There was no warmth, redness, or deformity. X-ray testing of the right shoulder was unremarkable. In a May 2009 letter, the Veteran reported that his shoulder is to the point where he cannot throw a football with his sons or carry anything in his right hand like a case of soda. He reported his shoulder is constantly cracking and popping all the time. He also reported hand pain while writing or working. During a November 2009 VA examination, the Veteran reported that other than his back, his shoulder is the other reason he has claimed unemployability. He reported shoulder pain at 7/10 and goes up to 8/10 at times. He has weakness in the right shoulder as well as stiffness. He denied swelling, heat, or redness. Occasionally, the right shoulder gives out. There is no history of locking. There is a history of fatigability and lack of endurance on the right shoulder. No flare-ups were reported. He also denied episodes of dislocation or recurrent subluxation or inflammatory arthritis. The Veteran stated he has problems lifting any weight over 10 pounds repetitively, and any weight over 25 pounds at all. Upon physical examination, the examiner noted no abnormality on the gross exam of the right shoulder as compared to the left. The Veteran reported tenderness on the anterior joint line of the right shoulder. Range of motion was flexion to 150 degrees, abduction to 120 degrees, external rotation was to 40 degrees, and internal rotation was to 50 degrees without change against gravity or resistance or after three repetitive movements. There was no limitation in range of motion from repetitive testing, incoordination, weakness or fatigue. Sensation was intact and grip strength was felt in both hands in a symmetrical manner. The diagnosis was rotator cuff strain. In a November 2009 statement, the Veteran asserted that his shoulder pain has steadily declined over the past 12 years. He claimed that after his conditions worsened two years ago, he was forced to stop driving a truck over the road. He claimed his non-service connected neck disorder was also the cause. The Veteran complained of difficulty interacting with his children due to constant pain, and stated that his prescribed medications make him sleep most of the day and night. He is not able to work due to radiating pain, and he cannot carry anything over 10 pounds without numbness and tingling radiating down his right arm and into his fingers. He has problems being in a car more than 20 minutes. The Veteran failed to report for a June 2010 VA examination. The Veteran is seeking a higher, compensable disability evaluation for his service-connected right shoulder rotator cuff strain. Shoulder strain is not listed on the Rating Schedule and the RO applied Diagnostic Code 5203 pursuant to 38 C.F.R. § 4.20 (2012), which provides that it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. Id. There are several diagnostic codes which pertain to limitation of motion or disabilities of the shoulder. Under Diagnostic Code 5200, which pertains to ankylosis of the scapulohumeral articulation (Note: the scapula and the humerous move as one piece), a 30 percent evaluation is warranted when there is favorable ankylosis of the major upper extremity with abduction to 60 degrees and the ability to reach the mouth and head with the major upper extremity. A 40 percent evaluation is warranted when the ankylosis in the major upper extremity is intermediate between favorable and unfavorable. A 50 percent evaluation is warranted when there is unfavorable ankylosis with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Under Diagnostic Code 5201, which pertains to limitation of motion of the arm, a 20 percent evaluation is warranted when range of motion of the major upper extremity is limited to the shoulder level. A 30 percent evaluation is warranted when range of motion of the major upper extremity is limited to midway between the side and shoulder levels. A 40 percent evaluation is warranted when range of motion of the major upper extremity is limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Under Diagnostic Code 5203, which pertains to impairment of the clavicle or scapula, a 10 percent evaluation is warranted where there is malunion of the clavicle or scapula of the major upper extremity; or where there is nonunion of the clavicle or scapula of the major upper extremity without loose movement. A 20 percent evaluation is warranted where there is nonunion of the clavicle or scapula of the major upper extremity with loose movement; or where there is dislocation of the major upper extremity clavicle or scapula. 38 C.F.R. § 4.71a. Normal range of motion for the shoulder is 180 degrees of forward elevation and abduction, and 90 degrees of external and internal rotation. See 38 C.F.R. § 4.71a, Plate I. 38 C.F.R. § 4.71, Plate 1 (2012). In this case, the Board finds that the evidence does not support the assignment of a disability rating in excess of 20 percent for the right shoulder rotator cuff strain. The Veteran's right shoulder rotator cuff strain is shown to be manifested by subjective complaints of pain causing a reduction in physical activity; without degenerative changes on X-ray study; but with objective evidence of limitation of motion to, at worst, 150 degrees on the right shoulder. Again, as there is no indication that the Veteran has had dislocation or nonunion of the clavicle or scapula, a 20 percent disability rating for this time period is not warranted under Diagnostic Code 5203. There was also no evidence of degenerative changes upon diagnostic testing of the right shoulder warranting a disability rating under Diagnostic Code 5003. The Board considered the diagnostic code for limitation of motion. The Board finds that a rating in excess of 10 percent for a right shoulder disability is not warranted. VA treatment records and the November 2009 VA examination report failed to show evidence of motion to at most midway between side and shoulder level that would be required for a rating in excess of 10 percent. In fact, the most recent VA examination report noted limitation of flexion to 150 degrees; this is beyond the shoulder level. To give the Veteran every consideration in connection with the matter on appeal, the Board has considered all potentially applicable diagnostic codes under 38 C.F.R. § 4.71a in rating his right shoulder disability. See, e.g., Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case"), and Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (one diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, current diagnosis, and demonstrated symptomatology). None of the competent medical evidence of record during this time period shows that the Veteran has ankylosis of the scapulohumeral articulation; or impairment of the humerus. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202 (2012). See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Therefore, the assignment of a rating in excess of 20 percent for the Veteran's right shoulder disability based upon any of these diagnostic codes is not warranted. The Board has also considered whether an increased rating based on a greater limitation of motion due to pain on use, including use during flare-ups, is warranted during this time period. The Board observes that although the Veteran complained of additional limitation with overuse, the examiner found no objective evidence that the Veteran's right shoulder is further limited by fatigue, weakness, lack of endurance, or incoordination upon repetition. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). In conclusion, the evidence of record does not reflect any findings that would warrant a rating in excess of 10 percent under the schedular criteria for right shoulder disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's right shoulder disability. The Veteran's service-connected right shoulder disability is productive of pain and functional impairment, manifestations that are clearly contemplated in the rating criteria. However, there has been no showing that the Veteran's service-connected right shoulder disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization. In the absence of such factors, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met for any of the disabilities at issue. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability evaluation in excess of 40 percent for right iliolumbar ligament strain is denied. Entitlement to a disability rating in excess of 10 percent for right shoulder rotator cuff strain is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs