Citation Nr: 1328453	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  06-30 086	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Pittsburgh, Pennsylvania


THE ISSUES

1. Entitlement to service connection for bilateral knee 
disability.

2. Entitlement to service connection for sacroiliac joint 
dysfunction.

3. Entitlement to an initial rating in excess of 10 percent 
for low back strain with degenerative disc disease, L5-S1, 
prior to April 8, 2009 and in excess of 40 percent 
thereafter.

4. Entitlement to a compensable rating for right shoulder 
disability.


REPRESENTATION

Appellant represented by:	The American Legion




ATTORNEY FOR THE BOARD

Amanda Christensen, Associate Counsel


INTRODUCTION


The Veteran had active military service from July 1989 to 
January 2001 and January 2002 to January 2003.

This appeal comes to the Board of Veterans' Appeals (Board) 
from November 2004 and April 2008 rating decisions by 
Department of Veterans Affairs (VA) Regional Offices (RO).

In June 2013 the Veteran submitted additional evidence 
directly to the Board in the form of a June 2012 private 
medical examination with attached biometric report tables 
and an October 2011 hospital discharge summary.  The 
Veteran's representative sent a letter waiving AOJ 
consideration of the evidence in July 2013.

The Board has not only reviewed the Veteran's physical 
claims file but also the Veteran's file on the "Virtual VA" 
system to insure a total review of the evidence.  

The issues of service connection for bilateral knee 
disability and sacroiliac joint dysfunction 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.

The issue of an increased rating for cervical spine 
disability has been raised by the record, but has not been 
adjudicated by the Agency of Original Jurisdiction (AOJ).  
Therefore, the Board does not have jurisdiction over it, and 
it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1. Prior to September 25, 2008 the Veteran's low back strain 
with degenerative disc disease was manifest by flexion to 80 
degrees, extension to 35 degrees, right and left lateral 
flexion to 40 degrees, and rotation to 35 degrees with no 
additional loss of range of motion due to pain or after 
repetitive use.

2. Since September 25, 2008 the Veteran's low back strain 
with degenerative disc disease has been manifest by flexion 
to 20 degrees, extension to 25 degrees, left lateral flexion 
to 10 degrees, left lateral rotation to 20 degrees, and 
right lateral flexion and rotation to 15 degrees, with pain 
on movement, but without evidence of ankylosis.

3. Prior to June 9, 2012 the Veteran's right shoulder 
disability was manifest with subluxation and instability.

4. Since June 9, 2012 the Veteran's right shoulder 
disability has been manifest by flexion to 105 degrees and 
abduction to 80 degrees.


CONCLUSIONS OF LAW

1. The criteria for an initial disability rating in excess 
of 10 percent prior to September 25, 2008 for low back 
strain with degenerative disc disease, L5-S1, have not been 
met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 
4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic 
Code 5237 (2013).

2. The criteria for an initial disability rating of 40 
percent, but no higher, for low back strain with 
degenerative disc disease, L5-S1, have been met as of 
September 25, 2008.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 
38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 
4.71a, Diagnostic Code 5237 (2013).

3.  The criteria for an initial disability rating higher 
than 40 percent for low back strain with degenerative disc 
disease, L5-S1, effective September 25, 2008, have not been 
met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 
4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic 
Code 5237 (2013).

4. The criteria for a 10 percent rating, but not higher, for 
right shoulder disability prior to June 9, 2012 have been 
met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 
3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5203 (2013).

5. The criteria for a 20 percent disability rating, but not 
higher, for right shoulder disability have been met as of 
June 9, 2012.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 
C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 
5201 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

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, 3.326(a) (2012). 

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); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA 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.  38 C.F.R. § 3.159(b)(1).  Such notice should also 
address VA's practices in assigning disability evaluations 
and effective dates for those evaluations.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  
While the required notice should be furnished prior to the 
issuance of the appealed rating decision, any initial errors 
of notice will not be prejudicial if: 1) corrective actions 
(e.g., issuance of a post-adjudication notice letter 
containing the required information) are taken, and 2) the 
appeal is readjudicated (e.g., in a  Supplemental Statement 
of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 
(Fed. Cir. 2007).

Here, the VCAA duty to notify was satisfied by way of 
letters sent to the Veteran in November 2003 and July 2007.  
In the letters, the RO informed the Veteran of what evidence 
is required to substantiate claims for service connection 
and of the Veteran's and VA's respective duties for 
obtaining evidence.  In the July 2007 letter the RO also 
provided notice with regard to how VA assigns disability 
ratings and effective dates in the event that service 
connection is established.  Although the July 2007 letter 
only noted the shoulder disability, the Board finds that a 
reasonable person would understand and apply the same 
criteria to the increased rating for the back.  Both 
increased rating claims were adjudicated after the July 2007 
notice letter.  Thus, the duty to notify has been satisfied.

VA also has a duty to assist the Veteran with the 
development of facts pertinent to the appeal.  38 U.S.C.A. § 
5103A; 38 C.F.R. § 3.159(c).  This duty includes the 
obtaining of "relevant" records in the custody of a federal 
department or agency under 38 C.F.R. § 3.159(c)(2), as well 
as records not in federal custody (e.g., private medical 
records) under 38 C.F.R. § 3.159(c)(1).  

The Board finds that all necessary development has been 
accomplished.  The RO has obtained the Veteran's service 
treatment records, VA treatment records, and private 
treatment records identified by the Veteran.  The Veteran 
also submitted statements.  Neither the Veteran nor his 
representative has identified, and the record does not 
otherwise indicate, any additional existing evidence that is 
necessary for a fair adjudication of the claim that has not 
been obtained.  

VA will also provide a medical examination if such 
examination is determined to be "necessary" to decide the 
claim.  38 C.F.R. § 3.159(c)(4).  

The Veteran was afforded VA examinations with respect to his 
back claim in December 2003 and January 2005.  The 
examiners, medical professionals, obtained an accurate 
history, listened to the Veteran's assertions, and performed 
the necessary tests.  The examiners provided the Board with 
sufficient information to rate the Veteran's disability.  
Therefore, the Board finds that the examinations are 
adequate and contain sufficient information to decide the 
issues on appeal.  Barr v. Nicholson, 21 Vet. App. 303, 311 
(2007).

The Board notes the Veteran was not afforded a more 
contemporaneous examination with respect to his back or a VA 
examination in connection with his shoulder claim.  In July 
and October 2007 the RO contacted the American Embassy in 
the United Arab Emirates, where the Veteran resides, 
requesting assistance in arranging a medical examination 
with respect to the Veteran's claims, but did not get a 
response.  The Veteran informed the RO the embassy told him 
it no longer assists in VA examinations.  In a December 2007 
letter the RO then offered several alternative possibilities 
for an examination.  First, the RO suggested the Veteran 
could arrange his own examination with a private doctor.  
Alternatively, the RO offered to arrange with a United 
States embassy in a neighboring country to assist with 
conducting an examination.  Finally, the RO suggested that 
an examination could be scheduled at a VA medical center in 
the United States the next time the Veteran returned for a 
visit.  In January 2008 the Veteran informed the RO in a 
phone call that he would arrange for an examination with a 
private doctor, and the RO subsequently allowed the Veteran 
additional time to submit that examination report, which he 
did in July 2012.  Therefore, although the Veteran did not 
undergo a VA medical examination with respect to his 
shoulder or a more contemporaneous examination with regard 
to his back, the Board finds the VA did meet its duty to 
assist the Veteran in scheduling such an examination given 
the circumstances, and that the Veteran chose to schedule 
his own private examination instead.

Hence, no further notice or assistance to the Veteran is 
required to fulfill VA's duty to assist in the development 
of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), 
aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 
15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 
183.

Back

Disability evaluations are determined by evaluating the 
extent to which a Veteran's service-connected disability 
adversely affects his or her ability to function under the 
ordinary conditions of daily life, including employment, by 
comparing his or her symptomatology with the criteria set 
forth in the Schedule for Rating Disabilities.  The 
percentage ratings represent as far as can practicably be 
determined the average impairment in earning capacity 
resulting from such diseases and injuries and the residual 
conditions in civilian occupations.  Generally, the degree 
of disabilities specified are considered adequate to 
compensate for considerable loss of working time from 
exacerbation or illness proportionate to the severity of the 
several grades of disability.  38 U.S.C.A. § 1155 (West 
2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes 
identify the various disabilities and the criteria for 
specific ratings.  

If two disability evaluations are potentially applicable, 
the higher evaluation will be assigned to the disability 
picture that more nearly approximates the criteria required 
for that rating.  Otherwise, the lower rating will be 
assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt 
regarding the degree of disability will be resolved in favor 
of the Veteran.  38 C.F.R. § 4.3 (2012).  However, the 
evaluation of the same disability under various diagnoses, 
known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 
(2012).

If there is disagreement with the initial rating assigned 
following a grant of service connection, separate ratings 
can be assigned for separate periods of time, based on the 
facts found.  Fenderson v. West, 12 Vet. App. 119, 126 
(1999).  See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for 
an original or an increased rating remains in controversy 
when less than the maximum available benefit is awarded).

The Veteran currently has a rating of 10 percent for low 
back strain with degenerative disc disease, L5-S1, prior to 
April 8, 2009 and a rating of 40 percent thereafter.  
Although in a letter received by the VA in March 2013 the 
Veteran stated that he had no objection to his lower back 
rating, the Board finds he did not clearly withdraw his 
appeal, particularly considering that his representative 
subsequently argued for an increased rating, and the Board 
will thus consider whether he is entitled to an increased 
rating.

The regulations provide that back disabilities are rated 
under either the General Rating Formula for Diseases and 
Injuries of the Spine or the Formula for Rating 
Intervertebral Disc Syndrome Based on Incapacitating 
Episodes, whichever method results in the higher evaluation 
when all disabilities are combined.  38 C.F.R. § 4.71a.  

Under the current Formula for Rating Intervertebral Disc 
Syndrome Based on Incapacitating Episodes, a 10 percent 
rating is assigned when intervertebral disc syndrome causes 
incapacitating episodes with a total duration of at least 1 
week, but less than 2 weeks, during the past 12 months; a 20 
percent rating is assigned when intervertebral disc syndrome 
causes incapacitating episodes with a total duration of at 
least 2 weeks, but less than 4 weeks, during the past 12 
months; a 40 percent rating is assigned when intervertebral 
disc syndrome causes incapacitating episodes having a total 
duration of at least 4 weeks, but less than 6 weeks, during 
the past 12 months; and a 60 percent rating is assigned when 
intervertebral disc syndrome causes incapacitating episodes 
having a total duration of at least 6 weeks, during the past 
12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  An 
incapacitating episode is a period of acute signs and 
symptoms due to intervertebral disc syndrome that requires 
bed rest prescribed by a physician and treatment by a 
physician.  Id., Note (1).  

Here, no incapacitating episodes of intervertebral disc 
syndrome have been noted on either VA examination during the 
course of the Veteran's appeal.  Moreover, the evidence of 
record does not show that any period of bed rest has been 
prescribed over the course of his appeal.  In fact, at his 
January 2005 VA examination the Veteran denied having any 
incapacitating episodes.  

While the Veteran's back condition indisputably causes some 
impairment, the criteria for an increased rating based on 
incapacitating episodes of intervertebral disc syndrome have 
not been met.  As such, the Veteran's back disability should 
be rated under the General Rating Formula for Diseases and 
Injuries of the Spine.  

Under the General Rating Formula for Diseases and Injuries 
of the Spine, a 10 percent evaluation is warranted when 
forward flexion of the thoracolumbar spine is greater than 
60 degrees, but not greater than 85 degrees; when the 
combined range of motion of the thoracolumbar spine is 
greater than 120 degrees but not greater than 235 degrees; 
when there is muscle spasm, guarding, or localized 
tenderness not resulting in abnormal gait or abnormal spinal 
contour; or where there is vertebral body fracture with loss 
of 50 percent or more of the height.

A 20 percent evaluation is warranted when forward flexion of 
the thoracolumbar spine is greater than 30 degrees, but not 
greater than 60 degrees; when the combined range of motion 
of the thoracolumbar spine is not greater than 120 degrees; 
or when muscle spasm or guarding is severe enough to result 
in an abnormal gait or abnormal spinal contour such as 
scoliosis, reversed lordosis, or abnormal kyphosis.  

A 40 percent evaluation requires either that forward flexion 
of the thoracolumbar spine is limited to 30 degrees or less, 
or that favorable ankylosis of the entire thoracolumbar 
spine is shown.  A 50 percent evaluation requires 
unfavorable ankylosis of the entire thoracolumbar spine, and 
a 100 percent evaluation requires unfavorable ankylosis of 
the entire spine.  See 38 C.F.R. § 4.71a, General Rating 
Formula for Diseases and Injuries of the Spine.

For VA compensation purposes, normal forward flexion of the 
thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 
degrees, left and right lateral flexion are 0 to 30 degrees, 
and left and right lateral rotation are 0 to 30 degrees.  38 
C.F.R. § 4.71a, Note 2.

In reaching the following conclusion, the Board has 
considered whether a higher disability evaluation is 
warranted on the basis of functional loss due to pain or due 
to weakness, fatigability, incoordination, or pain on 
movement of a joint under 38 C.F.R. §§ 4.40 and 4.45.  See 
also DeLuca v. Brown, 8 Vet. App. 202 (1995).  Functional 
loss contemplates the inability of the body to perform the 
normal working movements of the body with normal excursion, 
strength, speed, coordination and endurance, and must be 
manifested by adequate evidence of disabling pathology, 
especially when it is due to pain.  38 C.F.R. § 4.40.  

The Veteran underwent a VA examination in December 2003 at 
which the examiner diagnosed chronic lumbar strain with 
degenerative disc disease at L5-S1.

The Veteran's forward flexion was measured to 80 degrees, 
extension to 35 degrees, right and left flexion to 40 
degrees, and rotation to 35 degrees.  There was no change 
between active, passive, and after fatigue, and the examiner 
noted all motions were with minimal pain.  The examiner 
further found no strength deficit, no fixed deformity, and 
that the spine was not tender to palpation.

The examiner noted an October 2003 x-ray showed a uniform 
reduction in the disc space between L5 and S1 vertebrae.

In June 2004 the Veteran was seen at the VA where the 
examining physician assessed probable sacroiliitis and 
episodic low back pain and stated that the Veteran's x-rays 
suggested spondyloarthropathy.

The Veteran underwent another VA examination in January 
2005.

The Veteran reported when he has a flare-up in his lower 
back the pain is a 5-6 out of 10 and can last for weeks.  He 
reported he is unable to run and has difficulty standing and 
sitting for long periods of time.  He has difficulty walking 
on rough surfaces and during flare-ups.  He stated that 
twice a year his back will lock when he bends and after he 
straightens he is unable to bend again for a couple of days.

The Veteran reported he has not had any incapacitating 
episodes in the past 12 months.

On examination, the examiner found no fixed deformity, 
normal musculature, and no pain to palpation.  Forward 
flexion was measured to 80 degrees, extension to 35 degrees, 
right and left lateral flexion to 40 degrees, and rotation 
to 35 degrees.  The examiner found no additional loss of 
range of motion due to pain, fatigue, weakness, or lack of 
endurance following repetitive use.  Repetitive motion 
caused muscle spasm at L3-5 bilaterally and severe pain over 
the right sacroiliac joint.

Gross neurological exam and reflexes were normal.

The examiner diagnosed degenerative joint disease changes of 
the lumbar spine with muscle spasms.

The Veteran was seen at the VA in August 2006 where he was 
diagnosed with spondylopathy.  Sacroiliac joint tenderness 
was noted.  Treatment with Enbrel was recommended.
	
In April 2008 he sought private medical treatment for his 
back and was diagnosed with ankylosing spondylitis and 
bilateral sacroiliitis.  Muscle spasm, guarding, and 
localized tenderness in the lower lumbar and saddle area 
were noted.  Imaging showed signs of bilateral sacroiliitis 
(L4/5, L5/S1, degenerative disc dehydration) with edema and 
cystic changes on both sacroiliac joints.  New medication 
was recommended.

The Veteran was seen again by his private physician on 
September 25, 2008.  He reported severe, constant back pain 
of a 9 out of 10 and getting worse.  He described the 
feeling as aching and spasmodic.

The doctor found the Veteran had tenderness to palpation and 
muscle tension on both sides of the lumbar spine as well as 
muscle hypertonicity, edema, and swelling.  The doctor 
stated that the Veteran's range of motion was severely 
restricted in all ranges with pain.  The Veteran also had 
general weakness in all lumbar muscles due to pain.  He had 
a negative Valsalva's test and was able to walk on heels and 
toes.  His Teoman's test and Lewin-Gaenslen's test were both 
positive bilaterally.  Lower extremity reflexes and 
dermatomes were normal.

The Veteran again sought private medical treatment for his 
back on April 8, 2009.  His low back pain was described as 
moderate, occurring 50 to 80 percent of the time, getting 
worse, and with a pain level of 6 out of 10.  Lumbar flexion 
was measured as 30/60, extension as 20/25, right lateral 
flexion as 21/25, and left lateral flexion as 20/25.  The 
Veteran reported pain on flexion, extension, and right 
lateral flexion.  Muscles were found to be normal except for 
a generalized weakness of the right lumbar flexors.

He had a negative Bechterew's sitting test, a positive 
Kemp's test on the right, a positive Lasegue's test on the 
left, and a positive Patrick's test on the right.  He was 
able to walk on his heels and toes.  Lower extremity 
reflexes and dermatomes were normal.

He was diagnosed with lumbar disc degeneration and 
sacroiliac segmental dysfunction.

Lumbalgia was diagnosed and chiropractic treatment was 
recommended.

The Veteran underwent a private medical examination in June 
2012.  He told the examiner he has a constant pain level of 
5 out of 10 in his low back with flare-ups reaching a pain 
level of 10 out of 10 approximately twice a year.  He 
reported his last treatment was a steroid injection in 
August 2003 that helped for one week.

The Veteran's forward flexion was measured to 20 degrees, 
extension to 25 degrees, left lateral flexion to 10 degrees, 
left lateral rotation to 20 degrees, right lateral flexion 
to 15 degrees, and right lateral rotation to 15 degrees.

The Veteran complained of low back stiffness.  He had a 
negative straight leg raise and negative femoral nerve 
stretch test.

First, with respect to the period prior to April 8, 2009, 
the Board finds the Veteran is entitled to a higher rating 
as of September 25, 2008, but is not entitled to an 
evaluation above 10 percent prior to that date.  The Veteran 
had two range of motion tests done prior to April 2009, one 
in December 2003 and one in January 2005.  Both tests showed 
flexion to 80 degrees, extension to 35 degrees, right and 
left flexion to 40 degrees, and rotation to 35 degrees.  To 
be entitled to the next higher evaluation, 20 percent, the 
Veteran's forward flexion would have to be greater than 30 
degrees but not greater than 60 degrees, his combined range 
of motion would have to be not greater than 120 degrees, or 
he would have to have muscle spasm or guarding is severe 
enough to result in an abnormal gait or abnormal spinal 
contour.  Thus, the December 2003 and January 2005 treatment 
records show a greater range of motion than meets the 
criteria for a 20 percent rating.

The Board has also considered the DeLuca factors and notes 
that on examination, the Veteran was found to have no loss 
of range of motion or functional loss on repetitive use.  At 
his 2005 VA examination the Veteran reported that he is 
unable to bend over twice a year for a couple days, but did 
not mention such a complaint again in subsequent 
examinations or medical appointments.  The Veteran did 
report he has flare-ups of pain.  However, the Board notes 
that pain alone is not sufficient to warrant a higher 
rating, as pain may cause a functional loss, but pain itself 
does not constitute functional loss.  Mitchell v. Shinseki, 
25 Vet. App. 32, 36-38 (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. at 
43; see 38 C.F.R. § 4.40.  While the Veteran reported some 
difficulty during flare-ups, including trouble walking on 
rough surfaces, the Board finds any such difficulties do not 
cause the Veteran's back disability to more closely 
approximate the criteria for a rating higher than 10 percent 
prior to September 25, 2008.

Further, the Veteran has been noted to have muscle spasm and 
guarding, but the record does not reflect it is severe 
enough to result in an abnormal gait or abnormal spinal 
contour.  The December 2003 VA examination notes no fixed 
deformity and normal musculature of the lumbar spine.  The 
January 2005 VA examination also notes that the Veteran 
walked unaided and was not unsteady on his feet.  In 
addition there was no fixed deformity and musculature of the 
lumbar spine was normal.

Although treatment records show the Veteran was seen for his 
back in August 2006 and April 2008, neither record suggests 
an increase in the severity of the Veteran's condition 
sufficient to warrant an increased rating as of those dates.  
Therefore, the Board finds a rating in excess of 10 percent 
is not warranted for the Veteran's back disability prior to 
September 25, 2008.

However, the Board finds an increased rating is warranted 
beginning September 25, 2008.  On that date, the Veteran was 
seen by his private physician reporting severe, constant 
back pain and the doctor found that the Veteran's range of 
motion was severely restricted in all ranges with pain.  He 
also had tenderness to palpation and muscle weakness.  
Although no specific range of motion testing is reflected in 
the record, giving the Veteran the benefit of the doubt, the 
Board finds the record shows a significant worsening of the 
Veteran's condition as of that point, such that an increased 
rating is warranted.  Approximately six months later, on 
April 8, 2009, the Veteran again sought private medical 
treatment for his back at which time testing showed his 
flexion limited to 30/60.  The RO has awarded the Veteran a 
40 percent rating as of that date.  The Board finds that 
given the Veteran's description of pain as 9 out of 10 and 
the doctor's description of "severe" limitation of range of 
motion on September 25, 2008, the Veteran's condition 
warrants a 40 percent rating as of that date, as it is the 
earliest time the evidence suggests the Veteran's condition 
more closely approximated the criteria for that rating.

However, the Board further finds an evaluation in excess of 
40 percent is not warranted for any period subsequent to 
September 25, 2008.  A higher rating requires unfavorable 
ankylosis, and range of motion testing done in April 2009 
and June 2012 both show the Veteran had restricted, but 
present, range of motion in all directions.  Treatment 
records also do not indicate the Veteran experiences 
ankylosis.  Although the Veteran has reported pain with 
movement, records do not suggest that pain causes any 
additional functional loss.

Overall, the preponderance of the evidence is against the 
Veteran's claim for a rating in excess of 10 percent prior 
to September 25, 2008 and a rating in excess of 40 percent 
thereafter.  In reaching this determination, the Board 
acknowledges that VA is statutorily required to resolve the 
benefit of the doubt in favor of the Veteran when there is 
an approximate balance of positive and negative evidence 
regarding the merits of an outstanding issue.  That 
doctrine, however, is not applicable in this case because 
the preponderance of the evidence is against the Veteran's 
claim.  See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 
5107(b); 38 C.F.R. § 4.3.

The regulations also provide that in addition to orthopedic 
considerations, any associated objective neurologic 
abnormalities, including, but not limited to, bowel or 
bladder impairment, should be evaluated separately, under an 
appropriate diagnostic code.  However, in this case, the 
evidence of record does not support a finding that the 
Veteran has a chronic neurologic disability as a result of 
his service-connected back disability, and, overall, 
provides evidence against such a finding. The January 2005 
VA examiner found the Veteran's gross neurological exam and 
reflexes were normal.  Private September 2008 and April 2009 
neurological examinations of lower extremity reflexes and 
dermatomes were normal.  As such, the Board concludes that a 
separate neurologic rating is not warranted by the evidence 
of record.  

The Board has also considered whether referral for 
consideration of an extraschedular rating is warranted, 
noting that if an exceptional case arises where ratings 
based on the statutory schedules are found to be inadequate, 
consideration of an "extra-schedular" evaluation 
commensurate with the average earning capacity impairment 
due exclusively to the service-connected disability or 
disabilities will be made.  38 C.F.R. § 3.321(b)(1).  The 
Court has held that the determination of whether a claimant 
is entitled to an extraschedular rating under § 3.321(b) is 
a three-step inquiry, the responsibility for which may be 
shared among the RO, the Board, and the Under Secretary for 
Benefits or the Director, Compensation and Pension Service.  
Thun v. Peake, 22 Vet. App. 111 (2008).  

The threshold factor for extraschedular consideration 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.  This means that initially 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.  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 adequate, and 
no referral is required.  

If the criteria do not reasonably describe the claimant's 
disability level and symptomatology, a determination must be 
made whether the claimant's exceptional disability picture 
exhibits other related factors such as those provided by the 
regulation as "governing norms."  38 C.F.R. § 3.321(b)(1) 
(related factors include "marked interference with 
employment" and "frequent periods of hospitalization").  See 
id. 

However, in this case, the medical evidence fails to show 
anything unique or unusual about the Veteran's service 
connected low back disability that would render the 
schedular criteria inadequate.  The Veteran's symptoms, 
including loss of range of motion and pain, are contemplated 
in the rating assigned.  As such, it would not be found that 
his disability met the "governing norms" of an 
extraschedular rating.  Accordingly, referral for 
consideration of an extraschedular rating is not warranted.  
Moreover, even if it were argued that the schedular rating 
criteria were inadequate, the Board finds no reason to refer 
the case to the Compensation and Pension Service to consider 
whether an extra-schedular rating is warranted.  In this 
case, there is no evidence of any hospitalization associated 
with the Veteran's low back disability.  In addition, the 
Board finds the record does not reflect that the Veteran's 
low back disability markedly interferes with his ability to 
work, although he did report to his private doctor in 
September 2008 that his back troubles caused him to miss 
some work.  See 38 C.F.R. § 4.1 (indicating that 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).  

The manifestations of the Veteran's disability are 
considered by the schedular rating.  Based on the foregoing, 
the Board finds the schedular evaluation is adequate, and 
referral is not required.  38 C.F.R. § 3.321; Thun, 22 Vet. 
App. 111.

Shoulder

In March 2009 the Veteran filed a notice of disagreement 
with the April 2008 rating decision denying a compensable 
rating for the Veteran's service-connected right shoulder 
disability.  In March 2009 the RO issued a statement of the 
case listing, among other issues, the Veteran's claim for an 
increased rating for his shoulder disability.

In April 2009 the Veteran submitted a substantive appeal, VA 
Form 9, in which he checked in Box A that he wished to 
appeal all of the issues listed on the statement of the case 
and any supplemental statements of the case.  Although he 
did not mark Box B that he wished only to appeal some 
issues, he went on to list in the space provided that he 
wished to appeal four issues, including "right shoulder 
strain."  In Box 10 when asked to explain why he believes 
the VA decided his case incorrectly, the Veteran then went 
on to state with regard to his shoulder claim, "I agree with 
the board and since I am rated at 0%, I at least have the 
comfort of knowing I can be treated and reassessed at a 
later time if my condition worsens."  

Notably, the Veteran in March 2013 submitted a letter to the 
RO asking the RO to consider increasing his disability 
rating for his shoulder based on the private medical 
examination he submitted.  In a June 2013 letter the Veteran 
made the same request of the Board.

Despite the ambiguity created on the VA Form 9 by the 
Veteran's statement, as the Veteran clearly checked in Box A 
that he wished to appeal all of the issues listed on the 
SOC, the Board finds that the timely filed VA Form 9 should 
be construed as a substantive appeal as to his shoulder 
claim.  See Evans v. Shinseki, 25 Vet. App. 7   (2011). 

Where, as here, 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.  Francisco v. Brown, 7 Vet. App. 55, 58 
(1994).  However, staged ratings are appropriate for an 
increased rating claim if the factual findings show distinct 
time periods where the service-connected disability 
exhibited symptoms that would warrant different ratings.  
See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The 
following discussion addresses the Veteran's level of 
disability from the time the increased rating claim was 
filed in May 2006.  Francisco, 7 Vet. App. 55; Hart, 21 Vet. 
App. 505.  

A noncompensable evaluation for right shoulder disability is 
currently assigned pursuant to 38 C.F.R. § 4.71a , 
Diagnostic Code 5201.  While Diagnostic Code 5201 does not 
specifically provide for a noncompensable evaluation, VA 
regulations state that, where the schedular criteria do not 
provide for a noncompensable evaluation, such an evaluation 
shall be assigned when the requirements for a compensable 
evaluation are not met.  38 C.F.R. § 4.31. 

Diagnostic Code 5201 evaluates the shoulders based on 
limitation of the affected arm and whether the arm is the 
minor or major extremity.  Normal shoulder ranges of motion 
are forward elevation (flexion) to 180 degrees; abduction to 
180 degrees; external rotation to 90 degrees; and, internal 
rotation to 90 degrees (90 degrees flexion and abduction 
constitutes shoulder level).  38 C.F.R. § 4.71a , Plate I.  
Since the medical evidence reveals that the Veteran is 
right-handed, the right shoulder is considered the major 
extremity.  See 38 C.F.R. § 4.69.  Under Diagnostic Code 
5201, a 20 percent evaluation is assigned for limitation of 
motion at shoulder level for the major extremity.  
Limitation of shoulder motion to midway between the 
Veteran's side and shoulder level warrants a 30 percent 
rating for the major extremity.  When there is limitation of 
motion to 25 degrees from the Veteran's side, a maximum 40 
percent rating is warranted for limitation of motion of the 
major extremity.  38 C.F.R. § 4.71a, Diagnostic Code 5201. 

When, as in Diagnostic Code 5201, an evaluation of a 
disability is based upon limitation of motion, the Board 
must also consider, in conjunction with the otherwise 
applicable Diagnostic Code, any additional functional loss 
the Veteran may have sustained by virtue of other factors as 
described in 38 C.F.R. §§ 4.40  and 4.45.  DeLuca, 8 Vet. 
App. at 206.  Such factors include more or less movement 
than normal, weakened movement, excess fatigability, 
incoordination, pain on movement, swelling, and deformity or 
atrophy from disuse.  A finding of functional loss due to 
pain 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).

Under Diagnostic Code 5003, if degenerative arthritis has 
been established by x-ray findings and the limitation of 
motion is noncompensable, a rating of 10 percent is for 
application for each such major joint or group of minor 
joints affected by limitation of motion, to be combined, not 
added under Diagnostic Code 5003.  Limitation of motion must 
be objectively confirmed by findings such as swelling, 
muscle spasm, or satisfactory evidence of painful motion.  
38 C.F.R. § 4.71a, Diagnostic Code 5003. 

In the absence of limitation of motion, a 10 percent 
evaluation is warranted when there is x-ray evidence of 
involvement of 2 or more major joints or 2 or more minor 
joint groups.  38 C.F.R. § 4.71a.  A 20 percent rating is 
warranted under Diagnostic Code 5003 where there is x-ray 
evidence of the involvement of 2 or more major joints or 2 
or more minor joint groups with occasional incapacitating 
exacerbations.  38 C.F.R. § 4.71a.  For the purposes of 
rating disabilities from arthritis, the following are 
considered major joints: shoulder, elbow, wrist, hip, knee, 
and ankle.  38 C.F.R. § 4.45(f). 

Diagnostic Code 5203 provides the rating criteria for 
impairment of the clavicle or scapula.  Malunion of the 
clavicle or scapula or nonunion of the clavicle or scapula 
without loose movement warrants a 10 percent rating.  
Nonunion with loose movement or dislocation of the clavicle 
or scapula warrants a 20 percent rating.  38 C.F.R. § 4.71a, 
Diagnostic Code 5203.

In March 2008 the Veteran saw a private physician 
complaining of right shoulder instability.  The doctor found 
the Veteran's shoulders had normal contours with full range 
of movement, although he had obvious anterior subluxation in 
the anterior direction of his right shoulder and a positive 
anterior apprehension test.  He had slight wasting of 
rotator cuff muscles in his right shoulder with rotator cuff 
strength of 5/5.  He had no sulcus or posterior apprehension 
test or neurovascular deficit.

An MRI of the Veteran's right shoulder showed mild 
subacromial bursitis and thickening of anterior capsule.  
The doctor diagnosed anteroinferior instability in the right 
shoulder and recommended capsular shift surgery.

In September 2009 the Veteran saw another private physician 
who found the Veteran had full range of motion of his 
shoulders without pain or discomfort although in extreme 
motion he experienced pain in his trapezial area.

At a June 9, 2012 private medical examination, the Veteran 
reported pain in his posterior shoulder and trapezius area.  
There was no evidence of thoracic outlet syndrome but the 
Veteran had significant posterior muscular weakness and 
atrophy as well as scapular dyskinesis.  The doctor found 
right shoulder derangement with MRI-diagnosed labral 
pathology, rotator cuff tendinopathy, and acromioclavicular 
(AC) joint degeneration.  He recommended right shoulder 
arthroscopic labral repair, biceps tenodesis, decompression, 
and AC joint resection.

His range of motion was measured to 105 degrees flexion, 80 
degrees abduction, 80 degrees external rotation, and 30 
degrees internal rotation.  The doctor noted severe 
crepitation of the right shoulder

An MRI showed mild AC joint arthrosis, mild tendinosis of 
the supraspinatus muscle and bicipital tenosynovitis.

The doctor diagnosed rotator cuff syndrome with bicipital 
tendonitis, AC joint degenerative joint disease, and 
possible rotator cuff tear.

The Board finds that the Veteran is entitled to a 10 percent 
rating, but no higher, under Diagnostic Code 5203 prior to 
June 9, 2012 and a 20 percent rating, but no higher, under 
Diagnostic Code 5201 as of June 9, 2012.  

Degenerative arthritis had not been diagnosed by MRI or x-
ray prior to June 9, 2012.  Therefore, the Veteran is not 
entitled to a compensable rating under Diagnostic Code 5003.

In March 2008 the Veteran complained of right shoulder 
instability and his private physician found "obvious 
anterior subluxation."  After an MRI, the doctor diagnosed 
anteroinferior instability.  Therefore, giving the Veteran 
the benefit of the doubt, the Board finds the Veteran's 
condition warrants a 10 percent rating under Diagnostic Code 
5203 for impairment of the clavicle or scapula.

However, he is not entitled to a higher rating.  The 
evidence does not show nonunion with loose movement or 
dislocation of the clavicle or scapula such that the Veteran 
would be entitled to a 20 percent rating under Diagnostic 
Code 5203.  Further, range of motion testing prior to June 
9, 2012 reflects that the Veteran had full range of motion 
in his right shoulder.  Private treating physicians in March 
2008 and September 2009 noted the Veteran had full range of 
motion in his shoulders and no other medical evidence 
suggests the Veteran had limitation of motion at shoulder 
level during that period.  The evidence also does not 
suggest any limitation of motion or functional loss due to 
any DeLuca factors, although slight wasting of rotator cuff 
muscles with full rotator cuff strength was mentioned in a 
March 2008 treatment record.  A September 2009 treatment 
record stated that the Veteran only experienced pain at the 
extreme range of normal motion.  Therefore, the Veteran is 
not entitled to a compensable rating under Diagnostic Code 
5201.

On June 9, 2012, the Veteran had a private medical 
examination that showed his range of motion in his right 
shoulder was limited to 105 degrees flexion and 80 degrees 
abduction.  Although muscle weakness was also noted, the 
evidence does not reflect that such weakness caused any 
additional loss of range of motion.  Therefore, the Board 
finds the Veteran meets the criteria for a 20 percent 
disability rating under Diagnostic Code 5201 as of that date 
as his range of motion most closely approximates a 
limitation of range of motion to shoulder level.  

He is not entitled to a higher rating under Diagnostic Code 
5201 as the medical evidence of record does not reflect any 
finding of limitation of motion of the arm to midway between 
the Veteran's side and shoulder level so as to warrant a 30 
percent disability rating.  38 C.F.R. §§ 4.71a, Diagnostic 
Code 5201.

The Board has also considered rating the Veteran's right 
shoulder disability under all other relevant diagnostic 
codes.  However, there is no medical evidence of record that 
the Veteran has ever had impairment of the humerus or that 
his right shoulder has ever been ankylosed.  Therefore, 
increased ratings are not warranted under Diagnostic Codes 
5200 or 5202 at any point during the period on appeal.  38 
C.F.R. § 4.71a, Diagnostic Codes 5200, 5202.

As the preponderance of the evidence is against a rating in 
excess of 10 percent prior to June 9, 2012 and a rating in 
excess of 20 percent thereafter, the benefit of the doubt 
doctrine does not apply to assess the Veteran higher 
ratings.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 
1 Vet. App. 49.

The Board has also considered whether referral for 
consideration of an extraschedular rating is warranted.  
However, in this case, the medical evidence fails to show 
anything unique or unusual about the Veteran's right 
shoulder disability that would render the schedular criteria 
inadequate.  The Veteran's symptoms, including loss of range 
of motion, pain, and weakness are contemplated in the rating 
assigned.  As such, it would not be found that his 
disability met the "governing norms" of an extraschedular 
rating.  Accordingly, referral for consideration of an 
extraschedular rating is not warranted.  Moreover, even if 
it were argued that the schedular rating criteria were 
inadequate, the Board finds no reason to refer the case to 
the Compensation and Pension Service to consider whether an 
extraschedular rating is warranted.  In this case, there is 
no evidence of any hospitalization associated with the 
Veteran's right shoulder disability.  In addition, the Board 
finds the record does not reflect that the Veteran's right 
shoulder disability markedly interferes with his ability to 
work.  See 38 C.F.R. § 4.1 (indicating that 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).  The 
manifestations of the Veteran's right shoulder disability 
are considered by the schedular rating.  Based on the 
foregoing, the Board finds the schedular evaluation is 
adequate, and referral is not required.  38 C.F.R. § 3.321; 
Thun, 22 Vet. App. 111.


ORDER

A rating in excess of 10 percent for low back strain with 
degenerative disc disease, L5-S1, prior to September 25, 
2008 is denied.

A 40 percent rating, but no higher, for low back strain with 
degenerative disc disease, L5-S1, is granted as of September 
25, 2008, subject to the laws and regulations controlling 
the disbursement of monetary benefits.

A rating in excess of 40 percent for low back strain with 
degenerative disc disease, L5-S1, effective September 25, 
2008 is denied.

A 10 percent rating, but no higher, for right shoulder 
disability is granted prior to June 9, 2012, subject to the 
laws and regulations controlling the disbursement of 
monetary benefits

A 20 percent rating, but no higher, for right shoulder 
disability is granted as of June 9, 2012, subject to the 
laws and regulations controlling the disbursement of 
monetary benefits


REMAND

The Board finds a remand of the Veteran's claim for service 
connection for bilateral knee disability and sacroiliac 
joint dysfunction is warranted in this case.  Although the 
Board regrets the additional delay, further development of 
the record is necessary before the Board may render a 
decision in the instant case to ensure that there is a 
complete record upon which to decide the Veteran's claim so 
that he is afforded every possible consideration.  

In his May 2006 claim for service connection for a bilateral 
knee disability, the Veteran stated that he has had 
bilateral knee pain with limitation of motion since he began 
doing parachute jumps in service, and an October 2000 
service medical examination notes that the Veteran had 
clicking in his right knee joint with a McMurray's test and 
mild patella grind in his left knee with a valgus test.

The Veteran has also claimed that repetitive impact injuries 
in service injured his pelvic ring resulting in his 
sacroiliac joint disease.  Notably, service connection has 
been granted for low back strain with degenerative disc 
disease, L5-S1

Thus, the Board finds that the evidence indicates that there 
may be a nexus between the Veteran's current knee and 
sacroiliac joint disabilities and his military service.  
However, the June 2012 private medical examination submitted 
by the Veteran in lieu of a VA examination includes an 
assessment of the Veteran's conditions, but offers no 
opinion on the etiology of the disabilities.

The Board finds that the Veteran should be given another 
opportunity to pursue scheduling a VA examination as laid 
out in the RO's December 2007 letter, namely attending a VA 
examination in the United States or working with a United 
States embassy in a neighboring country to assist in 
conducting an examination.  Alternatively, the Veteran 
should be given the opportunity to schedule his own private 
examination to allow his private doctor the opportunity to 
address the issue of the etiology of the Veteran's claimed 
disabilities and any nexus to service.

The Board reminds the Veteran that the duty to assist the 
Veteran in the development of evidence pertinent to his 
claim is not a "one-way street."  Wood v. Derwinski, 1 Vet. 
App. 190, 193 (1991).  He is encouraged to communicate with 
the VA to schedule the examinations.  If the Veteran cannot 
attend a VA examination either in the United States or 
overseas and does not want to schedule another examination 
with a private doctor, he should inform the RO immediately 
so the case can be returned to the Board for a final 
adjudication based on the available evidence.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an examination 
to determine the nature and etiology of 
his claimed bilateral knee disability and 
sacroiliac joint dysfunction or notify the 
Veteran that he may schedule his own 
private examination.

The examiner should perform any indicated 
studies and identify each disability 
associated with the knees and sacroiliac 
joint.  

If the Veteran is scheduled for a VA 
examination, the entire claims file must 
be reviewed by the examiner in conjunction 
with the examination.  

If the Veteran is found to have a 
bilateral knee disability, the examiner 
should address the following:

a) Is it at least as likely as not (a 50 
percent or greater probability) that the 
Veteran's bilateral knee disability began 
in or is related to active service, 
including injury from parachute jumps?

If the Veteran is found to have a 
sacroiliac joint disability, the examiner 
should address the following:

a) Is it at least as likely as not (a 50 
percent or greater probability) that the 
Veteran's sacroiliac joint dysfunction 
began in or is related to active service, 
including injury from parachute jumps?

b)	Is it at least as likely as not (a 50 
percent or greater probability) that the 
Veteran's sacroiliac joint dysfunction was 
either caused or aggravated beyond its 
normal progression by (increased in 
severity due to) his service-connected 
back disability?  If the opinion is that 
his service-connected back disability 
aggravated his sacroiliac joint 
dysfunction, the examiner should specify, 
so far as possible, the degree of 
disability (pathology/impairment) 
resulting from such aggravation.

The term "at least as likely as not" does 
not mean merely within the realm of 
medical possibility, but rather that the 
weight of medical evidence both for and 
against a conclusion is so evenly divided 
that it is as medically sound to find in 
favor of causation as it is to find 
against it.

The rationale for all opinions expressed 
must be provided.  If an opinion cannot be 
provided without resort to speculation, it 
must be noted in the examination report, 
and a rationale provided for that 
conclusion. 

2. Upon completion of the above, 
readjudicate the issues on appeal.  If any 
benefit sought on appeal remains denied, 
the Veteran and his representative should 
be furnished an appropriate supplemental 
statement of the case and be provided an 
opportunity to respond.  Thereafter, the 
case should be returned to the Board for 
further appellate consideration, as 
appropriate.

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).




______________________________________________
SARAH B. RICHMOND
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs