Citation Nr: 1321419 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 07-18 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for an esophageal disorder. 2. Entitlement to a disability rating in excess of 10 percent for a duodenal ulcer with recurrent pyrosis prior to December 17, 2010. 3. Entitlement to a disability rating in excess of 20 percent for a duodenal ulcer with recurrent pyrosis after December 17, 2010. 4. Entitlement to a schedular disability rating in excess of 20 percent for left shoulder osteoarthritis with biceps tendonitis. 5. Entitlement to an extraschedular disability rating in excess of 20 percent for left shoulder osteoarthritis with biceps tendonitis. 6. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from April 1984 to April 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In connection with his appeal, the Veteran presented testimony before the undersigned Veterans Law Judge at a Board hearing at the RO in August 2010. The Veteran also presented testimony before a Decision Review Officer (DRO) at the RO in November 2009. Transcripts of the hearings are associated with the claims file. This appeal was previously before the Board in October 2010, at which time it was explained that the Board also had jurisdiction over the claims for an increased rating for a duodenal ulcer and service connection for an esophageal disorder in light of the Veteran's August 2010 hearing testimony. The Board remanded the issues for additional development, and now the appeal has been returned to the Board. While the appeal was in remanded status, the Appeals Management Center (AMC) granted an increased evaluation for the Veteran's duodenal ulcer disability. A 20 percent rating was assigned effective December 17, 2010. The U.S. Court of Appeals for Veterans Claims (Court or CAVC) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulation, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38 (1993) (indicating that where a claimant has filed a Notice of Disagreement as to a decision assigning a particular rating, a subsequent decision awarded a higher rating, but less than the maximum available benefit, does not abrogate the appeal). Accordingly, notwithstanding the assignment of a 20 percent rating, the Veteran's claim for a higher disability evaluation remains in controversy because he is nonetheless in receipt of less than the maximum available benefit. Therefore, the Board has modified the issues listed on the first page of this decision to reflect the staged ratings assigned for a duodenal ulcer with recurrent pyrosis throughout the appeal period. Also remanded by the Board in October 2010 were the issues of entitlement to service connection for left hand and left knee disorders. Subsequent to the remand, the AMC granted service connection for these disabilities, which constitutes a full grant of the benefits sought. Accordingly, these issues are no longer in appellate status. During the course of the Veteran's appeal, it has been determined that the Veteran has raised the issue of entitlement to TDIU. See November 2011 AMC Memorandum (explaining that the December 2010 VA examination inferred the issue of TDIU). The CAVC has held that a claim for TDIU is part of an increased rating claim when such is raised by the record during the course of the appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Notwithstanding the fact that neither the RO nor the AMC has adjudicated the issue, pursuant to the Court's holding in Rice, the Board finds that the question of whether an increased rating may be warranted based on entitlement to TDIU is part of the Veteran's current appeal for an increased rating and must be considered herein. For the sake of clarity, the Board separately lists this issue above and bifurcates the TDIU aspect so that additional development may be accomplished on remand. As a final introductory matter, a 100 percent total temporary rating was assigned from April 23, 2010, to July 31, 2010, for the Veteran's left shoulder osteoarthritis with bicep tendonitis due to surgery. Accordingly, the Board has adjusted its review of the Veteran's appeal to the period prior to the Veteran's surgery on April 23, 2010, and the period after surgery beginning August 1, 2010. Furthermore, as will be explained in the remand below, the issue of entitlement to an extraschedular rating for his left shoulder is also reasonably raised by the record but must await development on remand. The issues of entitlement to TDIU and entitlement an extraschedular disability rating in excess of 20 percent for left shoulder osteoarthritis with biceps tendonitis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. During the course of the appeal, the Veteran was diagnosed with hiatal hernia, "recurring esophagitis," and gastroesophageal reflux disease; competent evidence relates his esophageal complaints to service or his service-connected duodenal ulcer. 2. Throughout the entire appeal period, the Veteran's duodenal ulcer with recurrent pyrosis has been manifested by abdominal pain, nausea, heartburn, vomiting, diarrhea, and bloating and more nearly approximates symptoms productive of considerable health impairment; symptoms are not productive of severe health impairment. 3. Throughout the entire appeal period, the Veteran's left shoulder osteoarthritis with biceps tendonitis has been manifested by decreased range of motion and complaints of weakness, stiffness, swelling, heat, giving way, lack of endurance, fatigability, and flare-ups; however, the left shoulder disability has not more nearly approximated motion of the arm limited midway between side and shoulder level. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an esophageal disorder are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. Throughout the entire appeal period, the criteria for a 30 percent rating, but no higher, for duodenal ulcer with recurrent pyrosis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7305-7346 (2012). 3. Throughout the entire appeal period, the criteria for a schedular disability rating in excess of 20 percent for left shoulder osteoarthritis with biceps tendonitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71, DC 5010-5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant appeal. To the extent that there may be any deficiency of notice or assistance with regard to the Veteran's service-connection claim for an esophageal disorder, there is no prejudice to the Veteran in proceeding with adjudication of this claim given the favorable nature of the Board's decision herein. Inasmuch as the determination below constitutes a full grants of the benefits sought for this issue, any error in notice or assistance is harmless. With regard to the remaining claims, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1) (2012). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court also made clear that such notice must inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In a claim for increase, VA must issue a generic notice that informs a Veteran of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the RO sent the Veteran a letter in April 2006 that complied with § 5103 notice requirements outlined above. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As an initial matter, all relevant evidence necessary for an equitable resolution of the Veteran's claims has been identified and obtained to the extent possible. The Board recognizes that the RO has been unable to obtain records from the Social Security Administration (SSA). In a July 2007 response, SSA responded that the records were "not available." See 38 C.F.R. § 3.159(c)(2) (2012) (stating that VA will end efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile). It is unclear whether the Veteran was provided with notification of the unavailability of these documents in accordance with 38 C.F.R. § 3.159(e), but such notification or further requests to obtain this information is not necessary here, where the Veteran has not indicated that he was awarded SSA disability as a result of his shoulder or that SSA records are relevant to any of the appellate issues decided herein. Rather, the Veteran affirmatively indicated that the SSA benefits he was awarded were the result of a back disability (see June 2006 VA examination ("on disability for the back") and February 2008 VA treatment report ("patient is currently disabled for his low back")). Moreover, the record reflects that the Veteran returned to employment working for Boeing during the appeal period, and he first indicated that his shoulder affected his work in 2009, well after his grant of SSA benefits. Additionally, the Veteran submitted private treatment records and statements on his behalf. He provided oral testimony during the DRO hearing and, more recently, at the August 2010 Board hearing. In this regard, the U.S. Court of Appeals for Veterans Claims has held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). During the August 2010 hearing, the undersigned adequately identified the issue on appeal, and information was solicited regarding the nature and severity of the Veteran's increased rating claims for duodenal ulcer and left shoulder disabilities. Additionally, information was solicited at the hearing about any additional evidence that might be available that had not been submitted. In fact, as a result of information obtained at the hearing, the Board remanded this appeal for additional development. Accordingly, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been complied with. The Veteran in this case was also provided with multiple VA examinations with regard to his ulcer and left shoulder disabilities. The Board finds that, collectively, the examinations are adequate for rating purposes and that a remand for another VA examination of either the ulcer or left shoulder is unnecessary. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (finding that when the VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). The Board is also satisfied that there has been substantial compliance with the Board's prior October 2010 remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order.). Pursuant to the remand, the Veteran was scheduled for VA examinations addressing the current level of severity of his claimed disabilities, and the examiner reviewed the claims file and provided adequate findings to resolve the questions posed by the Board, including those related to range of motion and functional loss of the left shoulder. To the extent that the October 2010 remand directed that the Veteran be contacted about records from Dr. E. or any other providers, the Veteran was to identify any treatment and the location and provide releases of information as needed. A post-remand letter of October 2010 specifically asked the Veteran to complete and return an enclosed VA Form 21-4142 (Authorization and Consent to Release Information) for Dr. E. and for "medical treatment from any private physicians or hospitals." Notwithstanding indications in the claims file that records may exist from the Industrial Athlete program at Boeing (who may have treated the Veteran's left shoulder), Dr. K (who may have treated the Veteran for a left shoulder condition since 2001), or Dr. W. (who may have treated the Veteran prior to 2001), the Veteran did not provide the necessary consent form and other information for VA to request treatment records from these providers. It is well established that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, there is no Stegall violation in this case, and the Board may proceed to adjudicate the claims at this time. II. Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West); 38 C.F.R. § 3.303(a) (2012). Establishing entitlement to service connection for a disability on a direct basis generally requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. As the changes to this section are not liberalizing and the Veteran filed his claim in April 2006, the amendment is not applicable to the current claim. In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence, generally medical, establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After reviewing the evidence of record, the Board finds that the criteria for entitlement to service connection for an esophageal disorder have been met. As an initial matter, the evidence establishes a current disability during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal). The Board notes that the Veteran was diagnosed with GERD in July 2003, but this was several years prior to his claim for an esophageal disorder in April 2006. See Romanowsky v. Shinseki, ___ Vet. App. ___, 2013 WL 1907369 (May 9, 2013) (stating that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Significantly, during the appeal period, the most recent VA examination of April 2011 also identified a new and separate diagnosis of gastroesophageal reflux disease (GERD), and the December 2010 VA examination revealed a diagnosis of hiatal hernia, although it indicated that "current" esophagitis or GERD was not shown on the December 2010 Upper GI Series. Because the requirement of a "current disability" is satisfied if a disorder is diagnosed at any time during the pendency of the appeal, the first element required for service connection has been established. Turning to the next element, that of in-service incurrence or aggravation of a disease or injury, the record establishes that the Veteran complained of chest pains and ulcer disease in service. In March 1988, the Veteran was given cimetidine for heart burn or chest pain. Additionally, pursuant to the December 2010 VA examiner, the Veteran's heartburn and ulcer disease "first manifested in service" and "evolved into recurring esophagitis." Although the Veteran has been awarded service connection for a duodenal ulcer with recurrent pyrosis, the Veteran's in-service symptoms, therefore, also have significance with respect to current esophageal complaints. Having determined that the Veteran has a current diagnosis of an esophageal disorder and that symptoms were manifest in service, the Board now turns to the remaining element of service-connection, that of a nexus between the present disability and the in-service symptomatology. The Board notes that the only medical opinion of record addressing whether there is a causal relationship between the Veteran's current esophageal complaints and service is that of the December 2010 VA examiner. This opinion is favorable to the Veteran's claim. As related above, it was determined that the Veteran's heartburn and ulcer disease "first manifested in service" and "evolved into recurring esophagitis." The opinion regarding the evolution of such disabilities into recurring esophagitis clearly reflects the examiner's opinion that his current esophageal complaints are related to his in-service symptoms or, alternatively, were caused by his service-connected duodenal ulcer with recurrent pyrosis. As a rationale for this opinion, the examiner explained that ulcer disease and reflux involve the same biochemical pathways and are related to IgA metabolism and are associated with intolerance to various foods. The examiner cited to the Textbook of Functional Medicine (2006) in support of these findings. Significantly, even though the Upper GI series taken at the time failed to reveal any demonstrable gastroesophageal reflux during the course of the study, or any current esophagitis, the examiner clearly identified the presence of a hiatal hernia and also identified a problem of "recurring esophagitis." Moreover, the later April 2011 VA examination confirmed a diagnosis of GERD. Therefore, the examiner's positive opinion is adequate to relate these diagnoses to service. The Board finds no adequate basis to reject the evidence and medical opinion of record that are favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the Board finds that the third element of a nexus to service has sufficiently been demonstrated by lay evidence in this case. It is acknowledged that the Veteran's duodenal ulcer with recurring pyrosis is currently rated under Diagnostic Code 7346, which governs ratings for hiatal hernias. Notwithstanding this rating, the Board finds that his claim for service connection for an esophageal disorder-diagnosed during the current appeal period as hiatal hernia, "recurring esophagitis," and/or GERD-is a separate legal inquiry than whether he is entitled to a separate rating for such disability, inasmuch as it is a well-established policy that VA may not compensate the Veteran twice for the same symptoms. Section 4.14 merely prohibits evaluating the same manifestation under different diagnoses. See 38 C.F.R. § 4.14 (noting that "the evaluation of the same manifestation under different diagnoses [is] to be avoided"). In Amberman v. Shinseki, the Federal Circuit recognized that separately diagnosed psychiatric conditions could be service connected but could not be separately rated unless they resulted in different manifestations. 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("Section 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder."). The Federal Circuit found that it was possible evidence could be received that reflected that two conditions resulted in different manifestations, thus allowing the two conditions to be separately rated. Id. For example, in Amberman, the Federal Circuit stated that "bipolar affective disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for the VA to treat these separately diagnosed conditions as producing only the same disability." Id. In this case, therefore, the Board finds that a separate grant of service connection for an esophageal disorder is warranted and that it is for the RO to determine in the first instance whether any esophageal disorder may result in different symptoms than those of his duodenal ulcer with pyrosis so as to warrant a separate compensable rating. Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-07 (1994). Given the diagnoses rendered during the appeal period and the favorable nexus opinion of record, the Board resolves doubt in the Veteran's favor and finds that the evidence supports the establishment of service connection. As such, the Veteran's service-connection claim for an esophageal disorder is granted. II. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2012). Otherwise, the lower rating will be assigned. Id. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Duodenal Ulcer with Recurrent Pyrosis The Veteran's ulcer is currently rated as 10 percent disabling prior to December 17, 2010, and as 20 percent disabling thereafter, under Diagnostic Code (DC) 7305-7346. The Board notes that it is unclear why the AMC assigned a 20 percent rating under DC 7305-7346, because DC 7346 does not contain criteria for a 20 percent rating; rather, it discusses criteria pertinent to 10, 30, and 60 percent ratings. Therefore, it appears that the 20 percent rating was provided under DC 7305. Regardless, the Board will focus solely on whether a higher rating is warranted throughout the appeal period under either DC. Under DC 7305, a 10 percent rating is warranted for mild duodenal ulcer, with brief episodes of recurring symptoms once or twice yearly. 38 C.F.R. § 4.114. A 20 percent rating is warranted for moderate duodenal ulcer, with episodes of recurring symptoms several times a year. Id. A 40 percent rating is warranted for moderately severe duodenal ulcer; intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, mild and transient episodes of vomiting or melena. Id. A 60 percent rating is warranted for severe duodenal ulcer; same as "pronounced" with less pronounced and less continuous symptoms with definite impairment of health. Id. A 100 percent rating is warranted for "pronounced" duodenal ulcer; periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or hematemesis, and weight loss; totally incapacitating. Id. Under DC 7346, which governs ratings for hiatal hernia, a 10 percent rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. Id. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Id. The Board has considered the Veteran's statements indicating that his disability warrants a higher rating and acknowledges that he is competent to offer an account of his symptoms, which are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). After contemplating the symptoms reported by the Veteran, the Board finds that the reported symptomatology warrants a 30 percent rating, but no higher, under DC 7346 throughout the appeal period. In this regard, in an June 2006 VA examination, the Veteran complained of burning and stabbing stomach pain occurring frequently and only partially helped by ulcer treatment. He also complained of symptoms of hypoglycemic reaction occurred twice a week, for a duration of one to two hours. Nausea and vomiting also occurred as often as two times a week, which was brought on by certain foods. It was noted that the ulcer did not cause significant anemia or malnutrition. The June 2006 VA examination report noted that the Veteran's "condition does not affect general body health," nor does it affect body weight. It was further stated, "There is no functional impairment resulting from the above condition. The condition did not result in any lost time from work." Although no impairment of health was noted at this time, the Veteran began complaining of symptoms of epigastric distress (a symptom specified in the criteria for a 30 percent rating) and pain and vomiting (symptoms specified in the criteria for a higher 60 percent rating). Because of the presence of some symptoms found at the higher rating levels, this evidence supports an increase from the minimum compensable rating to 30 percent. However, the Board finds it significant that the June 2006 examiner expressly identified no associated health or functional impairments; thus, the evidence does not suggest symptoms productive of "severe" health impairment so as to more nearly approximate the next higher 60 percent rating, despite the presence of pain and vomiting. In assessing the remainder of the appeal period, the Board notes that, in a February 2009 VA examination report, the examiner indicated that he believed that the Veteran's ulcer was gone but that the Veteran still had heartburn symptoms. Therefore, the examiner suggested a change in diagnosis from duodenal ulcer to recurrent pyrosis. At that time, the Veteran reported abdominal pain occurring frequently but that some antacids alleviate it. He also complained of nausea and vomiting as often as once per week, as well as symptoms of diarrhea. The examiner indicated that the condition affects general body health by impairing sleep. However, the examiner stated that the stomach condition does not cause significant anemia or malnutrition and that the Veteran's stomach condition "does not cause incapacitation." It was noted that the Veteran reported the functional impairment of having to avoid certain foods. At the Veteran's August 2010 Board hearing, he testified that he was awarded 10 percent when he was only having a problem with diarrhea and vomiting "maybe once every month and a half or two months." Transcript (Tr.) at p. 5. He stated that since then, however, he has increased vomiting and diarrhea to almost every week. Id. At minimum, he stated it occurs two or three times a month and sometimes it lasts for a few hours up to a couple of days. Id. In a December 2010 VA examination, the Veteran complained of current symptoms of recurring abdominal cramping and bloating associated with diarrhea and vomiting, flaring up weekly. It was noted that he took medication to control reflux symptoms and to relieve epigastric pain and esophageal spasms, which occurred every two to five weeks, lasting a variable number of days. However, the examiner nonetheless stated that the Veteran "has no functional limitations of [activities of daily living] or occupation related to this problem." Additionally, there was no hematemesis or melena. Finally, in the most recent April 2011 VA examination, the Veteran reported abdominal pain located epigastrium, occurring frequently. He also complained of nausea and vomiting as often as twice a week and symptoms of abdominal distention and diarrhea. The examiner noted that the condition affects general body health by causing vomiting and diarrhea. Moreover, the Veteran reported the overall functional impairment of having to be close to a toilet when nauseated. However, the Veteran stated that his stomach condition does not cause incapacitation. Given the above, there are indications in the record that the Veteran's bodily health was affected as early as the February 2009 VA examination and throughout the most recent April 2011 VA examination (by impairing sleep or by causing vomiting and diarrhea), and that the Veteran's functional limitations involved only having to avoid certain foods and having to be close to a toilet when nauseated, but no other health or functional impairments have been identified. Although "considerable" or "severe" health impairments are not defined by the regulations, the Board notes that the lack of other health problems and functional impairments other than those discussed above (having to be near a toilet when nauseated, impairment of sleep, avoidance of food, and causing vomiting and diarrhea) suggests that his symptoms have not been productive of "severe" health impairments. In fact, throughout the appeal period, the VA examiners have consistently denied any incapacitation or occupational effects due to his disability. Moreover, symptoms such as material weight loss or hematemesis or melena with moderate anemia have not been shown. Thus, after carefully contemplating the rating criteria throughout the appeal period, and notwithstanding the fact that the Veteran has demonstrated symptoms of pain and vomiting (both found in the 60 percent rating criteria), the Board finds that the Veteran's disability does not more nearly approximate the symptoms of 60 percent rating under DC 7346 because his overall symptoms in combination have not been shown to have been productive of severe impairment of health. Nor does the evidence suggest that a higher rating or separate rating is warranted under DC 7305. In this regard, the Board has accounted for all of the Veteran's symptomatology under DC 7346, and VA examination reports have indicated that the Veteran's duodenal ulcer diagnosis should be revised and that it is believed that the duodenal ulcer is no longer present. Significantly, the February 2009 VA examiner who reviewed the Upper GI series indicated that no reflux was seen and that there was a "[r]esolved duodenal ulcer." The Upper GI Series conducted in December 2010 showed that the duodenum was normal in appearance, with no ulceration or mass lesion. Moreover, the April 2011 VA examiner noted that the diagnosis of duodenal ulcer is changed and that the "[u]lcer has long ago healed, still has reflux and heartburn." Therefore, the Board finds that a higher rating or separate rating under DC 7305 is not warranted throughout the entire appeal period and that DC 7346 is the most appropriate code for rating his service-connected disability. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (stating that service connection "is not severed simply because the situs of a disability-or the Diagnostic Code associated with it-is corrected to more accurately determine the benefit to which a veteran may be entitled"); see also Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (stating that the Board must provide an adequate statement of reasons or bases for its selection of a diagnostic code and explain why other diagnostic codes are not reasonably analogous); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. "[I]nitially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. The Court provided that "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Id. Turning to the threshold inquiry, the Board notes that the criteria of 38 C.F.R. § 4.114 expressly contemplate the Veteran's symptoms. The Veteran's disability is primary manifested by epigastric and abdominal pain, nausea, heartburn, vomiting, diarrhea, and bloating. Although avoidance of food, having to be near a toilet when nauseated, and impairment of sleep are not expressly listed within the criteria, DC 7346 considers the types of symptoms the Veteran reports and broadly contemplates the overall effect of the disability, i.e. whether the disability is productive of a certain level of impairment of health. Significantly, higher ratings are warranted when the disability results in more significant health impairments. Therefore, the avoidance of certain foods, impairment of sleep, and having to be near a toilet when nauseated are adequately contemplated within the DC even though these symptoms are not expressly and specifically listed. As the rating criteria reasonably describe the Veteran's disability and symptomatology, the threshold factor for extraschedular consideration under step one of Thun has not been met. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). In conclusion, the Board finds that the Veteran entitled to a 30 percent disability rating, but not higher, for his service-connected duodenal ulcer with recurrent pyrosis. To this extent, his increased rating claim is granted. B. Schedular Rating for Left Shoulder Osteoarthritis with Biceps Tendonitis In this case, the Veteran's left shoulder disability is rated as 20 percent disabling under DC 5010-5201 for limitation of motion of the arm. Significantly, the provisions of 38 C.F.R. § 4.71a expressly provide for the application of different rating criteria depending upon whether a Veteran's minor (non-dominant) or major (dominant) side is being evaluated. 38 C.F.R. § 4.69 (2012). Because the Veteran in this case is left-hand dominant, his left shoulder disability affects his major, dominant side. Accordingly, under Diagnostic Code 5201, for a major (dominant) joint, a 30 percent rating will be warranted for motion of the arm limited midway between side and shoulder level. 38 C.F.R. § 4.71a. A 40 percent rating will be warranted for motion of the arm limited to 25 degrees from the side. Id. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. Id., Plate I. In this case, the Board finds that the Veteran's left shoulder disability has not more nearly approximated for motion of the arm limited midway between side and shoulder level, i.e. about 45 degrees. In an Addendum report to the June 2006 VA examination, which clarified that the range of motion results were meant to apply to the left shoulder rather than the right shoulder, it was noted that the Veteran had left shoulder flexion to 170 degrees, abduction to 170 degrees, external rotation to 80 degrees, and internal rotation to 90 degrees. In a November 2006 VA treatment report, it was noted that pain was elicited upon arm abduction beyond 90 degrees. A February 2007 VA treatment report indicated that the Veteran had full active range of motion of his left shoulder, but pain was noted upon flexion from 45 to 180 degrees and upon abduction from 45 to 180 degrees. The other ranges of motion (extension, internal rotation, and external rotation) only noted end range pain. A March 2007 VA treatment report showed full range of motion except for internal rotation, which demonstrated minimal limits to end range motion. Range of motion findings during the February 2009 VA examination demonstrated flexion to 120 degrees (with pain at 100 degrees), abduction to 130 degrees (with pain at 90 degrees), external rotation to 90 degrees (with pain at 90 degrees), and internal rotation to 90 degrees. Just before the Veteran's April 23, 2010 surgery, an April 2010 VA treatment report documented active range of motion of flexion to 120 degrees and abduction to 90 degrees. Passive range of motion was 90 degrees, 60 degrees, and 80 degrees, with pain felt at the anterior deltoid. Following the Veteran's convalescence period, during the December 2010 VA examination, it was noted that pain is not present on initial motion actively, but the Veteran felt pain with active range of motion after 90 degrees of abduction, 75 degrees of flexion, and at the extremes of external and internal rotation. However, there was no further limitation of his active range of motion, which was abduction to 105 degrees, flexion to 120 degrees, external rotation to 45 degrees, and internal rotation to 75 degrees. Passive range of motion improved on abduction and flexion but there was no change for rotation movements. On physical examination in April 2011, range of motion of the left shoulder included flexion to 110 degrees (with end range pain), abduction to 100 degrees (with end range pain), external rotation to 80 degrees (with end range pain), and internal rotation to 70 degrees (with end range pain). Given the above findings, throughout the appeal period, the Veteran's range of motion was at worst 60 degrees on passive motion in a single April 2010 report (which did not identify whether this finding pertained to abduction, flexion, or rotation). In any event, this is still beyond the midway point between the side and the shoulder, and the Board finds that both flexion and abduction, which involve living the arm up to shoulder level, was shown consistently to be well above 100 degrees. This evidence weighs against a 30 percent rating for limited motion under DC 5201. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. In this regard, rating personnel must consider functional loss and clearly explain the impact of pain on the disability. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss the Veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These factors include more or less movement than normal, weakened movement, premature or excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. After carefully reviewing the evidence, a higher rating is not warranted in light of the DeLuca or Mitchell. At the June 2006 VA examination, it was noted that the Veteran suffered from weakness, stiffness, and lack of endurance with use. He also suffered from pain, which was elicited by physical activity and made worse with overhead use. However, at the time of pain, the examiner noted that the Veteran could function without medication and that there was no functional impairment resulting from the left shoulder disability; joint function was not additionally limited after repetitive use by fatigue, weakness, lack of endurance, and incoordination. The examiner opined that the above factors limited the joint function "by 0 degrees," i.e. there was no additional loss of range of motion. The VA examination in February 2009 revealed also reported symptoms of weakness, stiffness, swelling, heat, giving way, lack of endurance, and fatigability. The Veteran also reported constant pain elicited by physical activity. During times of pain, it was stated that he can function with medication. It was noted that the Veteran reported a functional impairment of being unable to lift tools above his head. However, once again, the examiner noted that the left shoulder was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The December 2010 VA examination noted that repetitive motion produced fatigue, deltoid muscle spasm, mildly increased weakness and pain with all degrees of motion, but there was no incoordination or change in tenderness. Finally, the most recent VA examination in April 2011 noted that the Veteran reported weakness, stiffness, swelling, giving way, lack of endurance, fatigability, tenderness and pain. However, the Veteran denied locking, deformity, subluxation and dislocation. Repetitive motion was possible, and, significantly, it was noted that there was no additional degree of limitation. The examiner concluded that the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Moreover, at the April 2011 VA examination, the Veteran reported flare-ups once per day, lasting for 24 hours. During the flare-ups, the Veteran described functional impairment described as pain and limited motion of the arm that allows for no overhead work; he described overall functional impairments of limited lifting with the left arm and no overhead work. Notwithstanding the complaints of weakness, stiffness, swelling, heat, giving way, lack of endurance, fatigability, and flare-ups reported above, the examiners did not identify any additional functional loss. To the contrary, even after repetitive testing, the evidence demonstrates that the Veteran still possessed substantial range of motion of the shoulders well beyond the halfway point between the side and shoulder level. Therefore, even considering all of these additional factors that may affect range of motion-the weakness, stiffness, swelling, heat, giving way, lack of endurance, fatigability, and flare-ups, etc.-his disability has not more nearly approximate the criteria for a higher rating under DC 5201. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Notwithstanding the above, the Board has also considered other potentially applicable DCs that may provide a basis for separate evaluations for the left shoulder. With regard to DC 5200, because ankylosis of the scapulohumeral articulation has not been shown, this provision is not for application. See, e.g. April 2011 VA examination (noting that there was no ankylosis). With regard to DC 5202, the medical evidence is without complaints of or treatment for an impairment of the humerus resulting in malunion, recurrent dislocation, fibrous union, nonunion, or loss of head of the humerus. For example, in the February 2009 VA examination, despite the Veteran's complaints of giving way, the February 2009 VA examiner noted that he did not have locking or dislocation and that the left shoulder showed no signs of subluxation or guarding of movement. As such, a compensable rating under this provision is not warranted. Finally, impairment of the clavicle or scapula has not been shown, so DC 5203 is not for application in this case. See July 2008 and April 2010 MRIs. The Board has also considered whether application of the DCs pertaining to muscle injuries would result in a higher rating, although a separate rating in this instance would a prohibited pyramiding of symptoms. See 38 C.F.R. §§ 4.14, 4.25(b) (2012); Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Veteran testified at the November 2009 DRO hearing that his shoulder disability affects both the joints and the muscles. Therefore, it was argued that the appropriate DC under which he should be rated is DC 5301, and not DC 5010 or 5201. Reviewing the record, a private treatment report in October 2009 noted several weaknesses in the major shoulder musculature, with moderate weakness in the subscapularis and teres minor muscles on the left side, leading to serious dysfunctional shoulder biomechanics. The December 2010 VA examination revealed mild atrophy of the left deltoid. Considering these findings, the Board notes that DC 5304, pertaining to Muscle Group IV, pertains to the subcapularis and teres minor muscles. 38 C.F.R. § 4.73. Under this regulation, a disability rating in excess of 20 percent would require severe muscle injury (30 percent disabling). Id. However, as the evidence reflects only moderate weakness of these muscles, the criteria for a "severe" muscle injury has not been met. See 38 C.F.R. § 4.56 (2009) (a severe disability includes injuries from a deep penetrating wound due to a high-velocity missile, with extensive debridement, prolonged infection, or sloughing of soft parts, intramuscular binding and scarring; "severe" muscle injuries are characterized by hospitalization for a prolonged period for treatment of the wound). In addition, DC 5303 involves Muscle Group III, which encompasses the deltoid. The mild deltoid atrophy shown here does not warrant even a compensable rating under this code. 38 C.F.R. § 4.73 (DC allows for a 30 percent rating for "moderately severe" muscle injury). Accordingly, the Veteran is not entitled to a higher rating under the rating criteria for muscle injuries. Because the Veteran underwent a left shoulder surgery, the Board has also assessed whether he may be entitled to a separate compensable rating for resultant scars. However, the December 2010 VA examination revealed three well healed scars, each approximately ten millimeters by one millimeter, superficial, well-healed, non-inflamed or functionally limiting and occupying less than one percent of the body surface area. Therefore, a separate compensable rating under 38 C.F.R. § 4.118 is not warranted. Finally, to the extent the Veteran and his representative argued that it would be improper for his left shoulder to be reduced following convalescence without an examination (Tr. at p. 13-14), the Board notes that the issue for an extension of convalescence was addressed in a September 2012 rating decision and is not in appellate status. Furthermore, there has been no reduction in the Veteran's left shoulder rating after his convalescence period when compared to the rating assigned prior to convelescence, and, in any event, the U.S. Court of Appeals for Veterans Claims has held that the procedural protections of 38 C.F.R. § 3.105(e) would not apply where the Board retroactively assigns staged disability ratings. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (2009) (indicating that a "staged rating" is a rating that looks backwards and retroactively assigns specific ratings to discrete periods); Tatum v. Shinseki, 24 Vet. App. 139, 144 (2010) (indicating that § 3.105(e) requires notice only before there is a reduction in compensation). For all of the above reasons, the Board finds that a schedular disability rating in excess of 20 percent for left shoulder osteoarthritis with biceps tendonitis is not warranted. As such, the appeal is denied to this extent only; the issue of extraschedular entitlement is being remanded for additional development. ORDER Service connection for an esophageal disorder is granted. Throughout the entire appeal period, a 30 percent rating, but no higher, for a duodenal ulcer with recurrent pyrosis is granted, subject to governing criteria applicable to the payment of monetary benefits. Throughout the entire appeal period, a schedular disability rating in excess of 20 percent for left shoulder osteoarthritis with biceps tendonitis is denied. [Extraschedular entitlement will be addressed on remand.] REMAND With regard to the claim for TDIU and entitlement an extraschedular disability rating in excess of 20 percent for left shoulder osteoarthritis with biceps tendonitis, the Board finds that a remand for additional development is necessary. The Veteran stated he was unable to work during the November 2009 DRO hearing and during the August 2010 Board hearing. Board Tr. at p. 15 ("because of injury, [the Veteran] is not able to provide for his livelihood gainful employment"); DRO Tr. ("I am off [of work for Boeing] right now because of my neck, my shoulder, and my hands."). He stated that his job as an aircraft mechanic for Boeing entailed using a rivet gun, drill, and hammer wrench all day and he could not do that. Board Tr. at p. 14-15. The December 2010 VA examination noted that the Veteran can perform his activities of daily living, but was becoming progressively more difficult for him to work as a riveter. When practicing riveting at home, the Veteran found it difficult to hold onto the riveting gun and was unable to perform his usual occupation because of the problems, in part, with his shoulder. The more recent April 2011 VA examination, however, revealed no periods of incapacitation of the left shoulder within the past twelve months, although the examiner identified functional impairments of limited lifting with the left arm and no overhead work. Although TDIU has been raised by the record, there is insufficient evidence of record describing the impact of the Veteran's left shoulder, either alone or in concert with his other service-connected disabilities, on the Veteran's ability to work. Moreover, the Veteran has not yet been provided with appropriate notice and assistance under the VCAA. As such, the Veteran should be provided with appropriate TDIU notice on remand and the claim should be fully developed, to include asking the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability. After allowing an appropriate time for a response, the AOJ should then determine whether a VA opinion is warranted to discuss the occupational impact of the Veteran's left shoulder disability on his ability to obtain and maintain substantially gainful employment, also considering the impact of his other service-connected disabilities. Inasmuch as the development requested on remand could potentially reveal exceptional factors interfering with the Veteran's ability to work as a result of his left shoulder disability, adjudication of the extraschedular aspect of his claim for an increased rating for the period after August 1, 2010, would be premature at this juncture. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Finally, to the extent that the Veteran may have received any additional treatment for from a VA facility, relevant treatment records should also be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to TDIU. Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate his claim for TDIU, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA. The Veteran should also be asked to complete and submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability. 2. Obtain and associate with the claims file any treatment records relevant to the remanded issues on appeal from VA facilities dated from May 2010 to the present. If such records are unavailable, the claims file should be clearly documented to that effect. 3. After completing the development outlined in items (1) and (2) above, if the evidence developed is insufficient to render a determination on the remanded issues, obtain a VA examination and opinion regarding whether the Veteran's left shoulder disability, either alone or in conjunction with his other service-connected disabilities, prevents him from obtaining and maintaining substantially gainful employment. If TDIU is not granted, the AOJ should determine whether additional development is necessary to decide extraschedular entitlement to a higher rating for the left shoulder under 38 C.F.R. § 3.321, to include whether referral to the Director of Compensation and Pension is warranted. 4. After accomplishing the above, as well as any other development deemed appropriate based on the information obtained on remand, the AOJ should readjudicate the issues of entitlement to TDIU and entitlement an extraschedular disability rating in excess of 20 percent for left shoulder osteoarthritis with biceps tendonitis. If any claim on appeal is not fully granted, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and an appropriate period of time should be provided for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the U.S. 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs