Citation Nr: 1327597 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 10-05 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for the residuals of traumatic brain injury (TBI). 3. Entitlement to an initial evaluation in excess of 30 percent for anxiety disorder. 4. Entitlement to an initial evaluation in excess of 20 percent for right subacromial bone spur, claimed as a bilateral shoulder disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The appellant served on active duty in the United States Army from September 2006 to November 2007. Among his awards and decorations were the Iraq Campaign Medal and the Combat Action Badge. This appeal comes to the Board of Veterans Appeals, hereinafter the Board, from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Nashville, Tennessee, that granted entitlement to service connection for anxiety disorder at a 10 percent disability rating, and for right subacromial bone spur at a 10 percent disability rating, both effective November 22, 2008. In addition, the RO denied entitlement to service connection for a right knee disorder, for a cervical spine disorder, and for traumatic brain injury with memory loss. Since the promulgation of that action, the appellant has relocated to Michigan and his claim is now serviced by the Detroit RO. In October 2012, the Board remanded these issues to the Appeals Management Center (AMC) for additional development. In a March 2013 rating decision, the AMC granted entitlement to service connection for a cervical spine disability; as such, this issue is no longer before the Board. In addition, the AMC increased the disability ratings for anxiety disorder to 30 percent and for right subacromial bone spur to 20 percent, assigning an effective date of November 14, 2007, the day following his discharge from active duty. The Veteran has not expressed satisfaction with the higher ratings. This issue thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a Veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). The issues of entitlement to service connection for a right knee disability and TBI are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Anxiety disorder has been manifested by mild to moderate symptoms, including sleep difficulties, panic attacks, irritability, some memory problems and some isolation; the Veteran maintains relationships and employment. Anxiety disorder has not caused occupational and social impairment with reduced reliability and productivity. 3. The right subacromial bone spur has not been manifested by ankylosis, limitation of motion of the right arm to midway between the side and shoulder level, impairment of the humerus, or deficiencies in the right upper extremity that approximate a moderate incomplete paralysis of the nerves. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for anxiety disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.132; 38 C.F.R. § 4.130; Diagnostic Code 9413 (2012). 2. The criteria for an initial disability rating in excess of 20 percent for right subacromial bone spur have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.132, 4.124a, Diagnostic Codes 8512-8516, 4.71a, Diagnostic Codes 5200-5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claims for higher disability ratings arise from appeals of the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, for these claims, no further notice is needed under VCAA. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records have been associated with the claims file. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in October 2012 in order to determine the current nature and severity of his service-connected anxiety disorder and right subacromial bone spur. The Veteran was provided with the required VA examinations in January 2013. The Board finds that these examinations are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the reports describe the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased Rating - Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evaluation of Initial Rating - anxiety disorder The Veteran is currently service-connected for anxiety disorder, rated as 30 percent disabling. Anxiety disorder is rated under Diagnostic Code 9413, which provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. The following relevant ratings are provided for psychiatric disabilities: A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, a noncompensable (0 percent) rating. 38 C.F.R. § 4.130. Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating. Id. Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, a 50 percent rating. Id. The level of occupational and social impairment due to a psychiatric disorder is the primary consideration in determining the severity of a psychiatric disorder for VA purposes, and not all the symptoms listed in the rating criteria must be present in order for a rating to be warranted. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that symptoms contained in rating schedule criteria are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."). The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disorder and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32. GAF scores ranging from 71 to 80 indicate that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after a family argument); and that there is no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Background and analysis January 2009 VA medical records show that the Veteran was seen in the emergency room for anxiety, which he noted was "constant." At that time, he screened negative for depression, bipolar disorder, paranoia, and delusions. The Veteran did not describe any discrete panic episodes, but rather a generalized heightened sense of anxiety. He felt that this may contribute to why he was out of work for over a year. He had been displaying hypervigilance, hyperstartle, and sleep disturbances to the point that he was sleeping less than three hours a night. He denied having a short fuse or violent history or intent. He expressed feelings of hopelessness and helplessness. His energy and appetite were normal but his concentration was poor. At a May 2009 VA examination, the Veteran reported that he had support from his wife and one other close friend who also returned from duty in Iraq, but that he was not close with anyone else. He indicated that, when he returned from Iraq, he could not find work in Michigan, where he had been living, but that he had recently found employment in Tennessee. His hobbies were fishing and playing video games. He reported that he noticed that he worried more and became irritable upon his return from Iraq. He reported that he was getting only two to three hours of sleep per night because he was worried. He denied nightmares, flashbacks and intrusive memories about Iraq. He was somewhat isolated from people in that he did not like to be around crowds or groups as he became frustrated with people easily, including his wife and children. He tended to withdraw from them until he cooled down. He reported some problems with memory and concentration, and an exaggerated startle response to loud noises. He denied significant depressive and psychotic symptoms and suicidal ideation. The examiner found that the Veteran appeared to be mildly to moderately impaired socially and recreationally in that he was more prone to emotional outbursts, tended to isolate himself from his family, and had trouble dealing with crowds and groups. He appeared to have adequate social support and was independent of others to perform activities of daily living. The examiner diagnosed anxiety disorder not otherwise specified and assigned a GAF score of 65. VA medical records showing treatment from May 2009 to November 2010 reflect that the Veteran had several negative screenings for depression. In June 2009, the Veteran reported having a "short fuse" and difficulty getting along with step daughter. He indicated that he had anxiety, avoided crowds and startled easily. Frequent worrying interfered with his sleep. He was isolative, but denied any nightmares or flashbacks. He was assigned a GAF of 60. In May 2010, the Veteran reported an increase in anxiety and poor sleep. He was diagnosed with adjustment disorder and anxiety, and assigned a GAF of 60. Later that month, he was seen in the emergency room for panic attack and shortness of breath. He was given Lorazepam. He reported having dreams of getting shot and that he had poor sleep. He indicated that he was constantly anxious and nervous. He was again diagnosed with adjustment disorder and anxiety, and was assigned a GAF score of 55. During this time period, the Veteran's mental status examinations were normal, with the exception of the noted anxiety and memory problems. At a January 2013 VA examination, the Veteran reported that he had good relationships with his children and his girlfriend, and was involved with his children's sporting activities. He indicated that he enjoyed going fishing and camping. He did not indicate any inability to work, and had been working at an automotive company for over a year. He denied any psychiatric treatment, but indicated that he had insomnia. He was "grouchy" and reported getting easily irritated, especially when in a crowded area or when he was "stressed out." He endorsed having panic attacks, when he would feel he was unable to breath, and that loud noises startled him. The examiner diagnosed anxiety disorder, not otherwise specified, and assigned a GAF score of 65. He found that the level of occupational and social impairment was such that, while a mental condition had been diagnosed, symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. The Board finds that the evidence of record does not support a higher disability rating for the Veteran's service-connected anxiety disorder. In order to meet the criteria for a higher rating, there would need to be evidence that the Veteran's service-connected anxiety disorder results in occupational and social impairment with reduced reliability and productivity. However, in this case, the May 2009 examiner found his occupational and social impairment to be mild to moderate, and the January 2013 examiner found that his psychiatric disorder did not cause any social or occupational impairment. Indeed, the evidence reflects that the Veteran has reported that he had good relationships with his girlfriend and children, and that he enjoyed hobbies such as fishing and camping. While he reported being unable to find work for about a year when he returned from Iraq and mentioned that he thought it might be due to his anxiety disorder, there is no other evidence of record that shows that he has occupational impairment causing deficiencies in his employment, due to his service -connected psychiatric disorder. At the time of his examination in January 2013, he had been employed for more than one year without any problems indicated. This conclusion is additionally supported by the assigned GAF scores of 65 at his examinations and 55 and 60 in treatment records, reflecting mild to moderate symptoms. While the rating criteria include lists of specific symptoms for each rating, these are to be used as a guide, and are not a dispositive list. However, it is significant to note that, while the Veteran did report some panic attacks and memory problems, which are included in the symptoms listed in the criteria for a 50 percent disability rating, he did not exhibit the symptoms contemplated in that rating criteria. The Veteran's current symptoms attributable to his service-connected psychiatric disability include sleep difficulties, panic attacks, some memory problems, irritability and isolation. These are all adequately considered in the list of symptoms for his current 30 percent disability rating. Overall, the Board finds that the disability picture presented by his service-connected anxiety disorder more nearly approximates the criteria for a 30 percent disability rating. As the preponderance of evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 7107(b). Evaluation of Initial Rating - right subacromial bone spur The Veteran is service-connected for right subacromial bone spur under Diagnostic Codes 5299-5203. VA regulations provide that conditions not listed in the rating schedule will be rated by analogy and coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5203 contemplates impairment of the clavicle or scapula. For a major joint, a 10 percent evaluation is assigned in cases of malunion or nonunion without loose movement of either arm. A 20 percent evaluation contemplates dislocation or nonunion with loose movement of either arm. Alternatively, the disability may be rated on impairment of function of a contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5203. The Veteran is right handed and at the maximum rating available under this Diagnostic Code. The Board notes that, in a March 2013 rating decision, the AMC increased the Veteran's disability rating for his right shoulder disability to 20 percent. In doing so, the AMC apparently used the criteria under Diagnostic Codes pertaining to incomplete paralysis of the nerves causing impairment of the hand, by analogy. Generally, under these Diagnostic Codes, a 20 percent rating is assigned for mild incomplete paralysis in the major extremity and a 30 or 40 percent rating is warranted for moderate incomplete paralysis in the major extremity. 38 C.F.R. § 4.124a, Diagnostic Codes 8512-8516. The schedule of ratings for diseases of the peripheral nerves indicates that "incomplete paralysis" indicated a degree of lost or impaired function substantially less than the type for complete paralysis. When the involvement is wholly sensory, the rating should be for the mild, or at most, moderate degree. 38 C.F.R. § 4.124a. A September 2008 VA magnetic resonance imaging study (MRI) revealed a subacromial spur with mild impingement of the supraspinatus muscle, with no evidence of a rotator cuff tear or tendinopathy. He reported intermittent pain and radiation below the elbow. The examiner assessed right upper extremity neuropathy possibly secondary to neuroforaminal encroachment at C3 to C4. In November and December 2008, the Veteran reported numbness in his right shoulder. At VA examination in March 2009, the Veteran had no deformity, giving way, instability, weakness, incoordination, or episodes of dislocation, subluxation or locking. He reported pain and decreased speed of joint motion, and exhibited guarding of movement. Range of motion of the right shoulder was flexion 0 to 180 degrees, abduction 0 to 180 degrees, internal rotation 0 to 90 degrees, and external rotation 0 to 90 degrees. There was objective evidence of pain following repetitive motion. Range of motion after repetitive movements was limited to flexion 0 to 170 degrees, abduction 0 to 175 degrees, internal rotation 0 to 90 degrees and external rotation 0 to 86 degrees. The examiner noted that there was no ankylosis. X-ray of the Veteran's right shoulder was negative. The examiner diagnosed right shoulder subacromial spur and impingement of the suprasinatus muscle, secondary to the subacromial spur. The Veteran denied flare-ups. VA medical records show that the Veteran was assessed with mild biceps tendinitis. The Veteran reported right shoulder pain in November 2009 and April 2010. At his January 2013 VA examination, right shoulder flexion was to 180 degrees, with no objective evidence of painful motion. Abduction was to 180 degrees, with evidence of painful motion at the endpoint of the range. There was no further limitation in motion after repetitive movements. The examiner noted that the Veteran had pain on movement and on palpation of the right shoulder. Muscle strength was normal, and there was no ankylosis. Impingement test was positive on the right. There was no history of recurrent dislocation or subluxation of the right shoulder. The examiner noted that the Veteran did not have an acromioclavicular joint condition or any other condition or impairment of the clavicle or scapula. The Veteran's right shoulder disability did not affect his ability to work. As noted above, the Veteran's current rating is the highest available under Diagnostic Code 5203. As such, the Board will consider other Diagnostic Codes pertaining to disabilities of the shoulder and arm to provide the Veteran with the most beneficial rating possible. Diagnostic Code 5200 pertains to ankylosis of the scapulohumeral articulation. In this case, the VA examiners have noted that there is no ankylosis in the Veteran's right shoulder. As such, a rating under this Diagnostic Code is not appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5200 (2012). Diagnostic Code 5201 pertains to limitation of motion of the arm. In order to warrant a higher disability rating under this Diagnostic Code, the evidence would need to show limitation of motion of the arm to midway between the side and shoulder level. However, upon examination, the Veteran has had almost full range of motion of his right shoulder. Flexion and abduction of the right arm have been limited to, at most, 170 and 175, respectively. There is no medical evidence that the Veteran's right shoulder is limited in motion to preclude lifting his arm above the midway point between his side and his shoulder, and the Veteran has not provided any statements that his shoulder is so limited or that he has flare-ups. As such, a higher disability rating under Diagnostic Code 5201 is not appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). Diagnostic Code 5202 pertains to impairment of the humerus. However, there is no evidence in the record that reflects an impairment of the humerus, particularly malunion of the humerus with marked deformity, or recurrent dislocation of the humerus at the scapulohumeral joint. As such, a higher rating under Diagnostic Code 5202 is not appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2012). In order to warrant a higher rating under the Diagnostic Codes pertaining to upper extremity nerve impairment, the evidence would need to reflect moderate incomplete paralysis. However, in this case, the Board finds that the impairment from the Veteran's right shoulder disability is not to the level to be considered moderate. His right shoulder range of motion has been essentially normal throughout the appeals period, with no flare-ups. The January 2013 examiner found that that the Veteran's muscle strength was normal, and that his right shoulder disability did not hinder his ability to work. As such, a higher disability rating under these Diagnostic Codes is not warranted. 38 C.F.R. § 4.124a, Diagnostic Codes 8512-8516. As the preponderance of evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 7107(b). Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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 extraschedular 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 extraschedular 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). Generally, the degrees of disability specified in the Rating Schedule 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. § 3.321. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The symptoms associated with the Veteran's anxiety disorder are adequately contemplated by the rating criteria set out in the General Rating Formula for Mental Disorders, under which anxiety disorder is rated. 38 C.F.R. § 4.130, Diagnostic Code 9413. In addition, the symptoms associated with the Veteran's right shoulder disability are adequately contemplated by the rating criteria set out in the Diagnostic Codes pertaining to shoulder disabilities and neurological disabilities of the upper extremities, by analogy. 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203, 4.124a, Diagnostic Codes 8512-8516. Thus, the evidence does not support referring this case for an extraschedular evaluation. TDIU considerations The Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). The issue of TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case there has been no allegation or evidence of unemployability. While the Veteran reported a period of being unemployed during the appeals period, he indicated that he could not find a job and did not associate this with his service-connected disabilities. At the time of his most recent examination, the Veteran had been employed for over a year without any issues. Accordingly, the question of entitlement to TDIU has not been raised. ORDER An initial evaluation in excess of 30 percent for an anxiety disorder is denied. An initial evaluation in excess of 20 percent for right subacromial bone spur, claimed as a bilateral shoulder disability is denied. REMAND In its October 2012 remand, the Board noted that he appellant was in an Army National Guard unit in Michigan that was federalized and then sent to Iraq. The medical records that were prepared immediately before his embarkation overseas are not of record nor are the records that were prepared while he was in-country. Annotations in the claims file indicates that the state organization responsible for his records along with his National Guard unit have misplaced or cannot find his service medical records. However, the appellant has said that as a result of various injuries and conditions related to or caused by service, he is now being considered for a medical discharge from the National Guard. Records from that proceeding would be relevant to his claim. The Board instructed the RO/AMC to contact the National Personnel Records Center (NPRC) and the Michigan Army National Guard Medical Command and request that a search be conducted for the appellant's service treatment records. The Board noted that the Michigan Army National Guard Medical Command should be informed that the appellant has asserted that a determination is currently being made, or has recently been made, concerning his fitness for service, and as such, his medical records may be before a medical review board. The Board further instructed that, if the RO/AMC is informed that NPRC and/or the Michigan Army National Guard Medical Command does/do not have copies of the requested records but that those records are held by the appellant's National Guard unit, said unit should be contacted and those records should be requested. The claims file includes a letter sent to the Michigan National Guard-Joint Force Headquarters in December 2012, requesting the Veteran's service treatment records and advising that the Veteran's medical records may be before a medical board. There is no response to this letter in the claims file, and no evidence that there were any additional steps as taken to obtain the Veteran's service treatment records, as was instructed in the Board's October 2012 remand. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should again contact the Michigan National Guard-Joint Force Headquarters to request the Veteran's service treatment records and to request that if the records cannot be located, that a negative response be provided. If these records cannot be obtained from this source, the RO/AMC should also contact the National Personnel Records Center (NPRC) and request that a search be conducted for the appellant's service medical treatment records. If the RO/AMC is informed that NPRC and/or the Michigan National Guard does/do not have copies of the requested records but that those records are held by the appellant's National Guard unit, said unit should be contacted and those records should be requested. All records and other relevant information are to be made part of the claims folder. If the records cannot be obtained, this should be noted in the claims folder, and the RO/AMC should inform the Veteran of the records that the VA was unable to obtain, including what efforts were made to obtain them. Also the RO/AMC should inform the Veteran that VA will proceed to decide his appeal without these records unless he is able to submit them pursuant to 38 C.F.R. § 3.159(e) (2012). The RO/AMC should allow an appropriate period of time within which to respond. 2. Thereafter, the RO/AMC should readjudicate the claims of service connection for TBI and right knee disability. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs