Citation Nr: 1330144 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-40 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus in his right ear. 3. Entitlement to an initial rating in excess of 20 percent for degenerative facet joint L5-S1 with bulge, lordosis, and spondylosis, claimed as low back pain (back condition). 4. Entitlement to an initial rating in excess of 10 percent for cervical lordosis (neck condition). 5. Entitlement to an initial rating in excess of 20 percent for tendonitis with impingement syndrome of the right shoulder (right shoulder condition). 6. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from December 2004 to August 2007. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence does not establish the Veteran currently has a hearing loss disability. 2. The evidence establishes the Veteran currently has tinnitus which began during, or was otherwise caused by, his military service. 3. The evidence does not establish the Veteran had forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine at any point during the period on appeal. 4. The evidence does not establish the Veteran had forward flexion of the cervical spine limited to between 15 degrees and 30 degrees or combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour at any point prior to June 3, 2009 and after November 3, 2011. 5. The evidence does not establish the Veteran had forward flexion of the cervical spine limited to 15 degrees or less, or favorable ankylosis of the entire cervical spine at any point during the period on appeal. 6. The evidence does not establish the Veteran had motion of his right arm limited to midway between his side and shoulder level at any point during the period on appeal. CONCLUSIONS OF LAW 1. Criteria for service connection for hearing loss have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 2. Criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 3. The criteria for a rating in excess of 20 percent for degenerative facet joint L5-S1 with bulge, lordosis, and spondylosis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2013). 4. The criteria for a temporary staged rating for cervical lordosis not to exceed 20 percent from June 3, 2009 to November 3, 2011, inclusive, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a Diagnostic Code 5237 (2013). 5. The criteria for rating in excess of 20 percent for tendonitis with impingement syndrome of the right shoulder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is currently seeking service connection for hearing loss and tinnitus. The Board notes that sensoneural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore 38 C.F.R. § 3.309(b) applies to the claim, providing that if the chronic disease is shown in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as will be discussed, the Board finds the evidence does not establish the Veteran had a chronic hearing loss disability at any point during his military service. As such 38 C.F.R. § 3.309(b) is not applicable to this claim. Throughout the period on appeal the Veteran has consistently related his current tinnitus and hearing loss to his exposure to noise during military service. For example in his September 2009 written notice of disagreement the Veteran reported exposure to I.E.D. and mortar explosions "so close to me that the ground shaked" while he was an infantry soldier. He also reported exposure to loud noises for long periods of time while driving a Humvee. Finally, he reported using multiple machine guns which were "very loud." The Veteran's lay statements are supported by his DD 214 which reflects the Veteran served as an infantryman and received the combat infantryman badge. Accordingly, the Board finds the Veteran was exposed to acoustic trauma during his military service. 38 U.S.C.A. § 1154(a). However, noise exposure in the military alone is not grounds for service connection. Rather, the evidence must establish the Veteran currently has tinnitus and hearing loss for VA purposes that were caused by his military noise exposure. Service treatment records were reviewed, and the relevant evidence is summarized below. At his October 2004 enlistment physical audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 10 15 LEFT 5 5 0 0 5 Under the regulations hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court of Appeals for Veterans Claims (Court) has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As such, the Board finds the Veteran had normal hearing upon enlistment to military service. In August 2006 additional audiometric testing was conducted and the relevant results are summarized below. HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 -5 10 10 LEFT 5 10 -5 0 10 These results reflect the Veteran continued to have normal hearing acuity. In April 2007 additional audiometric testing was conducted a few months before the Veteran's discharge from military service. HERTZ 500 1000 2000 3000 4000 RIGHT 5 -5 -5 0 5 LEFT 15 0 -5 5 5 These results reflect the Veteran continued to have normal hearing acuity shortly before he was discharged from military service. Service treatment records do not establish the Veteran otherwise complained of hearing loss or tinnitus during his military service. As such, the Board finds the evidence does not establish the Veteran had tinnitus or hearing loss during his military service. In October 2007, two months after his separation from military service, the Veteran was provided with a VA examination. The Veteran reported acoustic trauma to right ear while at a firing range without use of ear protectors, as well as a year spent in Iraq. Upon physical examination his ears appeared normal. Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 20 20 LEFT 5 10 10 10 10 Additionally speech recognition testing was conducted and the Veteran scored 100 percent on both ears. The examiner opined the Veteran's hearing was within normal limits between 500Hz and 4,000Hz. As such, the Board finds the results of this audiometric testing reflect the Veteran continued to have normal hearing acuity. The record does not include any additional medical evidence suggesting the Veteran currently has a loss of hearing acuity for VA purposes. The Board notes that the Veteran has consistently stated he has loss of hearing in his right ear. As a lay person the Veteran is competent to report what comes to him through his senses, such as loss of hearing acuity. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran does not have the medical training or expertise to measure his loss of hearing. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Instead, the medical evidence establishes that even if the Veteran does have some loss of hearing acuity, the evidence does not establish he has hearing loss for VA purposes at any point during the period on appeal (beyond a range of "normal"). Simply stated, while the Veteran's hearing may not be as good as it once was, it is still within a range of normal, therefore, the Veteran does not have "hearing loss" for VA purposes. As such, the evidence does not establish the Veteran currently has a hearing loss disability, and his claim for service-connection is denied. With regards to his claim for tinnitus, in the same October 2007 examination the examiner opined the Veteran had tinnitus in his right ear, based on the Veteran's testimony. As such, the Board finds the evidence does establish the Veteran currently has tinnitus. The Board acknowledges the 2007 examiner opined that the Veteran's tinnitus "most probably is not noise induced." However, the Board notes the examiner did not provide any rationale for his conclusion, and his opinion is therefore less probative. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition, the Veteran has consistently reported he had tinnitus in his right ear related to noise exposure during his military service. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation and as such, the Veteran is competent to report evidence of his current tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Accordingly, the Board finds the evidence includes evidence in support and against the Veteran's claim that his currently diagnosed tinnitus is due to his noise exposure during his military service. VA regulations provide that if the evidence for and against the Veteran's claim for service connection is at the very least in relative equipoise reasonable doubt will therefore be resolved in the Veteran's favor. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, his claim for service-connection for tinnitus is granted. Increased Rating The Veteran is also seeking increased ratings for his service-connected back, neck, and right shoulder conditions. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has 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). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Back The Veteran's back condition is currently rated 20 percent under Diagnostic Code 5242 for degenerative arthritis of the spine. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine a 20 percent rating is assigned 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 there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. The next higher rating of 40 percent rating is assigned when there is forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The Board has reviewed and considered all evidence of record, and relevant information will be discussed below. August 2006 private physician evaluated the Veteran's back condition. This physician noted the Veteran had vertebral subluxations "complicated by the presence of Phase II Vertebral Subluxation Degeneration." In October 2007 the Veteran was provided with a VA examination for his back condition. The Veteran reported pain in his lower back like a "stabbing and pression sensation" of 7 out of 10 intensity. The Veteran reported his pain sometimes radiated to the posterior face of this right lower extremity and occasionally caused associated cramps. The Veteran reported his pain was aggravated with lifting, bending, use of stairs, and prolonged sitting or standing, and was alleviated by pain medication and rest. Upon physical examination the examiner noted muscle spasm to low back muscle palpation. Range of motion testing was conducted and revealed active flexion from 0 to 60 degrees with pain beginning at 50 degrees and passive flexion from 0 to 70 degrees with pain beginning at 50 degrees. Active extension of the thoracolumbar spine was from 0 to 20 degrees with pain beginning at 10 degrees, passive extension was to 30 degrees with pain beginning at 15 degrees. Lateral flexion was to 20 degrees with pain beginning at 10 degrees bilaterally. Lateral rotation was to 30 degrees bilaterally with pain beginning at 20 degrees. Repetitive use testing was completed with no additional loss of range of motion. The examiner noted the Veteran did not have intervertebral disc syndrome. Neurological exam was also normal with normal reflexes and no evidence of sensory loss. X-ray from that same month revealed preserved normal lumbar lordosis, with normal vertebral body height, alignment, and intervertebral disc spaces. The examiner opined "findings suspicious of unilateral spondylolysis at the left side on the L5 without associated spondylolisthesis." The x-ray was otherwise normal. The examiner also noted the Veteran had been unemployed for less than one year. The Veteran asserted his unemployment was due to his back condition. The examiner opined the Veteran had chronic lower back pain which had the following effects on his usual daily activities: prevented exercise and sports; moderate effect on chores, shopping, recreation, traveling, and driving; and no effect on feeding, bathing, dressing, toileting, and grooming, providing some evidence against this claim. The Board finds the results from this range of motion testing establishes the Veteran's condition warranted a 20 percent rating based on limitation of motion. The Veteran's forward flexion was to 60 degrees, within the range of 30 to 60 degrees contemplated by a 20 percent rating. A higher 40 percent rating is not warranted until forward flexion is limited to 30 degrees or less. In addition, the combined range of motion of the Veteran's spine well exceeds the range even contemplated by a 20 percent rating. Accordingly, affording all benefit of the doubt to the Veteran, the Board finds a 20 percent rating, but no higher, was warranted at this time. April 2008 the Veteran sought treatment at a VA facility for low back pain. It was noted his back pain did not radiate to arms or lower extremities. The physician noted the Veteran's range of motion was "intact" and muscle tone was "adequate." In July 2008 the Veteran was seen for physical therapy consult for his back. The Veteran reported that despite physical therapy his lower back pain continued. X-ray was taken and revealed minimal left L5 spondylolysis without associated spondylolisthesis. The care provider noted no significant changes since the October 2007 x-ray. The physician recommended the Veteran continue with physical therapy. In June 2009 the Veteran was provided with an additional VA examination. The Veteran reported his pain had increased since his last evaluation and was now an intensity of 9 out of 10 with "needle" type pain. The Veteran reported pain and difficulty picking things up from the floor, prolonged sitting or standing, or repetitive movements. The Veteran reported he experienced constant pain daily, but his pain did not radiate. He experienced weekly flare-ups of pain which lasted for one to two days. During this time the Veteran reported he felt unable to do "anything even going to the bathroom is a difficult task." The examiner noted tenderness and guarding of movement. Range of motion testing was conducted. Veteran has flexion to 50 degrees, extension to 15 degrees, left flexion to 20 degrees bilaterally, and lateral rotation to 30 degrees bilaterally. The examiner noted no additional limitation of motion after repetitive use. X-rays from May 2008 were reviewed which revealed minimal left L5 spondylosis and suspected bilateral nephrolithiasis. The examiner opined the Veteran had "unilateral spondylolysis at left side at L5 lumbar level" and "paravertebral muscle lumber spasm." The examiner opined the Veteran's condition had the following effects on his usual daily activities: prevented sports; severely impacted chores, shopping, exercise, and traveling; moderately impacted recreation; and mildly impacted feeding, bathing, dressing, toileting, and grooming. The Board finds that although the results from the range of motion testing at the June 2009 reflect the Veteran's back condition had worsened, his condition continued to merit a 20 percent rating. The Veteran's flexion was to 50 degrees, still far exceeding the limitation to 30 degrees contemplated by a higher rating. In addition, the Veteran's combined range of motion of his back was 165 degrees, still within the criteria contemplated by a lower 10 percent rating. Accordingly, the Board finds a rating not to exceed 20 percent continued to be warranted at this time. In his September 2009 written substantive appeal the Veteran noted he had hidden fracture in his back in addition to severe vertebral subluxation of the lumbar spine. The Veteran reported pain and difficult while driving, especially while in reverse. In March 2010 an x-ray revealed "occult spina bifida at S1 segment." In this regard, it is important for the Veteran to understand that even if this is true, this does not provide a basis to grant more compensation. The problem with the back is not the key issue. The key issue is how the back disability, as a whole, impacts the Veteran's ability to function on a day to day basis. Without taking into consideration the Veteran's pain in his back and the problems he has noted, the current evaluation could not be justified, let alone a higher evaluation. The Veteran was provided an additional VA examination in November 2011. This examiner noted the Veteran was diagnosed with degenerative facet joint changes at L4-L5 bilaterally, minimal lordosis, and spondylosis at left L5. Range of motion testing was conducted. The Veteran had forward flexion to 75 degrees with pain beginning at 50 degrees and extension to 30 degrees with no evidence of pain. Lateral flexion and rotation were each 30 degrees bilaterally. No additional limitation of motion was noted following repetitive-use testing. The examiner noted localized pain or tenderness to palpation in the lumbar area, but no guarding or muscle spasm. Muscle strength, reflexes, and sensory responses were all normal. The examiner noted the Veteran did not have radicular pain or any other sign of radiculopathy, any other neurologic abnormality, or intervertebral disc syndrome. The examiner noted the Veteran's back condition did impact his ability to work (which is clear as if it did not, there would be no basis for a compensable evaluation, let alone a higher evaluation). The Board notes the results from this most recent range of motion testing suggest the Veteran's back condition had actually improved since his June 2009 examination, providing evidence against the Veteran's assertions his back condition continued to worsen. The Veteran's forward flexion was to 75 degrees, although pain began at 50 degrees. However, even the Veteran's 50 degrees of pain-free forward flexion well exceeds the limitation to 30 degrees as contemplated by a higher 40 percent rating. According, the Board finds the Veteran's back condition continued to warrant a 20 percent rating based on limitation of motion at this time. Based on the foregoing the Board finds the evidence does not establish the Veteran's back condition warranted an increased rating in excess of 20 percent at any point during the period on appeal. Neck The Veteran's neck condition is currently rated 10 percent under Diagnostic Code 5237 for cervical strain. 38 C.F.R. § 4.71a. Under the Generic Rating Formula for Diseases and Injuries of the Spine a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A higher 20 percent rating is warranted if forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the cervical spine is not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted if forward flexion of the cervical spine is limited to 15 degrees or less; or favorable ankylosis of the entire cervical spine is present. Id. In October 2007 the VA examiner also evaluated the Veteran's neck condition. The Veteran reported chronic neck pain associated with stiffness. The Veteran described his pain as an intensity of 4 to 5 out of 10 that did not radiate. Range of motion testing was performed and revealed the Veteran had active flexion to 45 degrees with pain starting at 30 degrees and passive flexion to 45 degrees with pain starting at 40 degrees. Active extension was to 35 degrees with pain beginning at 30 degrees, and passive extension was to 45 degrees with pain beginning at 30 degrees. The Veteran did not experience any additional limitation of motion following repetitive-use testing, but did experience pain. Lateral flexion was to 45 degrees with pain beginning at 30 degrees bilaterally on both active and passive motion. Lateral rotation was to 80 degrees with pain beginning at 60 degrees bilaterally. X-ray of the neck revealed "mild straightening of the cervical lordosis which could be secondary to positioning versus muscle spasm" but otherwise revealed no abnormalities. The examiner opined the Veteran's neck condition did not have any effects on his usual daily activities. The Board finds this range of motion testing from October 2007 reflects the Veteran's neck condition warranted a 10 percent rating. His forward flexion was to 45 degrees, exceeding even the range contemplated by a 10 percent rating. However, considering painful movement began at 30 degrees, the Veteran's forward flexion warranted a 10 percent rating. However, his flexion was well in excess of the flexion limited to between 15 and 30 degrees contemplated by a higher 20 percent rating. Additionally total range of motion of the cervical spine was 330 degrees, far in excess of the 170 degrees total limitation contemplated by a higher rating. According, the Board finds a 10 percent rating was warranted at this time. On June 3, 2009 the Veteran was provided with an additional VA examination. The Veteran reported progressively worse pain in his neck with intensity of 4 out of 10. The Veteran noted his pain was worst when he turned his head to the right side. Range of motion testing revealed flexion to 30 degrees, extension to 10 degrees, left lateral flexion to 30 degrees, right lateral flexion to 10 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 15 degrees. The Veteran experienced pain after repetitive use testing, but no additional limitation of motion. The examiner opined the Veteran had cervical pain. The examiner noted this condition had the following effects on the Veteran's usual daily activities: prevented sports, severely impacted exercise, moderately impacted chores, shopping, recreation, and traveling, and mildly impacted feeding, bathing, dressing, toileting, and grooming. The Board finds the results from this range of motion testing reflect the Veteran's neck condition had worsened. While his forward flexion remained at 30 degrees, suggesting a 10 percent rating, the combined range of motion of his cervical spine was limited to 125 degrees. Under VA regulations combined range of motion of the cervical spine not greater than 170 degrees warrants a 20 percent rating. According, the Board finds an increased 20 percent rating for the Veteran's neck condition was appropriate at this time. In his September 2009 written substantive appeal the Veteran asserted that his neck conditions warranted a 30 percent rating. An x-ray from March 2010 revealed mild degenerative joint disease in the cervical spine, as well as "discongenic disease of the spine suggested particularly at C4-C5 and C5-C6 level." To address the Veteran's concerns, on November 3, 2011 the Veteran was provided with an additional VA examination. The examiner noted the Veteran was diagnosed with cervical lordosis and muscle spasm. The Veteran reported his neck pain had not improved since his last examination. He described his pain as stabbing, and noted severe pain developed when driving. He reported his pain on this date was 6 out of 10. The Veteran also reported he experienced flare-ups every two months with a duration of 10 minutes. Range of motion testing was conducted and revealed forward flexion to 45 degrees without pain, extension to 45 degrees without pain, lateral flexion to 45 degrees with pain beginning at 40 degrees bilaterally, and lateral rotation to 80 degrees without pain bilaterally. The Veteran did not have any additional limitation in range of motion following repetitive-use testing. Again, the Board finds the results of this examination suggest the Veteran's neck condition had improved. His forward flexion was to 45 degrees without pain, exceeding even the limitation contemplated in a 10 percent rating. Furthermore the Veteran's combined range of motion of his cervical spine was 340 degrees, in excess of the 335 degrees limit contemplated by a 10 percent rating. However, when considering the Veteran's pain upon movement, the Veteran had only combined range of pain-free movement of 330 degrees, matching the criteria for a 10 percent rating. However, his range of pain-free motion far exceeded the 170 degrees limitation contemplated by a 20 percent rating. As such, the Board finds the Veteran's neck condition warranted a 10 percent rating at this time, according all benefit of the doubt to the Veteran. MRI from August 2010 revealed "straightening of cervical lordosis which may be positional or secondary to muscle spasm" and "mild degenerative changes from C3-C4 through C5-6 levels." The examiner opined that the Veteran's neck condition impacted his ability to work, but did not conduct additional range of motion testing. Based on the foregoing, the Board finds the Veteran's service-connected neck condition is entitled to a temporary, staged increase. His neck condition warranted a 10 percent rating until June 3, 2009. Between June 3, 2009 and November 3, 2011 his condition warranted a limited staged increase to 20 percent. However, after November 3, 2011 his condition improved and again merited a 10 percent rating. In reaching these conclusions regarding both the Veteran's claims for increased rating for his back and neck conditions, the Board has considered whether a higher disability evaluation was 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. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the Board notes the VA examiners in October 2007, June 2009, and November 2011 each specifically performed additional range of motion testing after repetitive use of the neck and spine. Each examiner noted that while the Veteran did experience pain, he did not experience any additional loss of range of motion during testing after repetitive use. As such, the Board finds the VA examiners all explicitly considered the DeLuca factors and determined the Veteran did not experience any additional functional loss due to repetitive motion. Therefore a higher disability evaluation is not warranted based on functional loss after repetitive use. The schedular criteria also provides that back disabilities can be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes if it results in a higher evaluation than the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. In order to warrant a rating for IVDS the schedular criteria requires intervertebral disc syndrome conditions which cause incapacitating episodes, defined as 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). However, the Board finds the medical evidence does not establish the Veteran has IVDS. The evidence does not contain any evidence the Veteran was prescribed bed rest by a physician at any point during the period on appeal. Moreover, the VA examiners in October 2007 and November 2011 each specifically opined the Veteran did not have IVDS. Therefore, the evidence does not establish the Veteran would receive a compensable rating under this formula and his back and neck conditions will continue to be rated under the General Rating Formula. Note 1 following the General Rating Formula for Disease and Injuries of the Spine states that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a. However, as will be discussed, the Board finds the evidence of record does not establish the Veteran experienced separate neurological abnormalities. The Board acknowledges the record does contain some suggestion the Veteran experienced a neurological condition associated with his back and/or neck conditions. For example, in his October 2007 VA examination the Veteran reported his back pain sometimes radiated into his right lower extremity and caused associated cramps. However, the Board finds this pain radiation is not supported by the medical evidence of record. In an April 2008 treatment record the VA care provider specifically noted the Veteran's back pain did not radiate to his arms or lower extremities. More persuasively in June 2009 the Veteran himself reported that his back pain did not radiate. Therefore, the Board finds the evidence does not establish the Veteran's back or neck pain radiated to his arms or lower extremities. The medical evidence also does not establish the Veteran experienced any other separate neurological abnormalities due to his service-connected back or neck conditions. For example, during his October 2007 VA examination a neurological exam was also conducted and revealed normal results, with normal reflexes and no evidence of sensory loss. The VA examiner in November 2011 specifically noted the Veteran did not have any radicular pain or any other sign of radiculopathy, or any other neurological abnormality. Therefore, the Board finds the evidence of record does not establish the Veteran had a separate neurologic condition requiring a separate rating at any point during the period on appeal. Right Shoulder The Veteran's right shoulder condition is currently rated 20 percent under Diagnostic Code 5201 for limitation of motion of the right arm. 38 C.F.R. § 4.71a. Normal shoulder forward flexion, or elevation, and abduction are each from 0 to 180 degrees. 38 C.F.R. § 4.71, Plate I. A 20 percent rating is warranted if the arm is limited to motion at shoulder level. A higher 30 percent rating is warranted if motion of the arm is limited to midway between side and shoulder level. 38 C.F.R. § 4.71a, Diagnostic Code 5201. In October 2007 the Veteran was provided with a VA examination. The Veteran reported stabbing pain that gets worse when doing overhead activities. He reported his pain was a 3 out of 10. Range of motion testing was conducted. The Veteran had active flexion to 130 degrees, with pain beginning at 90 degrees and passive flexion to 150 degrees with pain again beginning at 90 degrees. Flexion after repetitive use was to 120 degrees. Active abduction was to 100 degrees with pain beginning at 80 degrees and passive abduction to 150 degrees with pain beginning at 80 degrees. Abduction after repetitive use was limited to 90 degrees. The Board finds the results from this range of motion testing establish the Veteran's shoulder condition warranted a 20 percent rating, for motion limited to shoulder level. According to Plate I shoulder level is roughly 90 degrees. 38 C.F.R. § 4.71. The Board finds the Veteran began experiencing pain at 90 degrees during flexion and at 80 degrees during abduction. Accordingly, a 20 percent rating is warranted. However, the evidence does not establish the Veteran's movement of his arm was limited to midway between his side and shoulder level, or roughly 45 degrees using Plate I. Id. According, the evidence does not establish the Veteran's condition warranted a rating in excess of 20 percent. Furthermore, the record does not contain any additional range of motion testing or medical evidence otherwise describing the limitation of motion due to the Veteran's shoulder. Accordingly, the Board finds the evidence does not establish the Veteran's shoulder condition warranted a higher rating at any point during the period on appeal, and his claim for an increased rating is denied. In making this determination, the Board also considered whether a higher disability evaluation was warranted based on functional loss following repetitive use under the DeLuca factors, as discussed above. However, the Board notes that the results from the October 2007 range of motion testing reflect that even after repetitive use testing was completed the Veteran's arm continued to have range of motion in excess of the limitation contemplated by a higher rating, as discussed above, even considering his complaints of pain upon motion. As such, the evidence does not establish the Veteran's shoulder condition is entitled to a higher rating based on limitation of motion. In regards to the Veteran's claims for increased ratings for his back, neck, and shoulder conditions 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 veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran'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 veteran's disability level and symptomatology, a determination must be made whether the veteran'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 back, neck, or shoulder conditions that would render the schedular criteria inadequate. The Veteran's main symptoms were complaints of pain and limited motion. These symptoms were specifically contemplated in the schedular ratings that were assigned. As discussed above, the Board contemplated the Veteran's reports of pain in assigning the foregoing ratings based primarily on limitation of motion. As such, the Board believes that the schedular rating criteria adequately describes the Veteran's disability pictures and even if it does not, 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. Based on the foregoing the Board finds the evidence does not establish the Veteran's service-connected back or shoulder conditions warranted an increased rating at any point during the period on appeal. As discussed above, the evidence establishes the Veteran's neck condition warranted a temporary staged increase to 20 percent rating between June 3, 2009 and November 3, 2011. However, the Veteran's neck condition does not warrant a rating in excess of 10 percent before June 3, 2009 or after November 3, 2011. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in September 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. 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). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for service-connection for hearing loss is denied. The Veteran's claim for service-connection for tinnitus is granted, subject to the laws and regulations governing the award of monetary benefits. The Veteran's claims for increased-ratings for his back and right shoulder conditions are denied. A temporary staged 20 percent rating for the Veteran's neck condition from June 3, 2009 to November 3, 2011, inclusive, is granted, subject to the laws and regulations governing the award of monetary benefits, with a 10 percent rating thereafter. REMAND The Board finds that an inferred claim for total disability based on individual unemployability (TDIU) has been raised based on the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). For example, in his October 2007 VA examination the Veteran stated he was unemployed due to his back condition. In his June 2008 written notice of disagreement the Veteran stated he had to quit jobs in construction and painting cars in a car shop due to his conditions. He reported his condition made it "very difficult to get and sustain a decent job." As such, the Board finds an inferred claim for TDIU has been raised. Under VA regulations a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. In this case, the Veteran will have a 70 percent combined rating when including his rating for tinnitus, as discussed above. In calculating one disability rated at 40 percent, VA regulations provide that disabilities resulting from common etiology or a single accident may be considered as one disability. 38 C.F.R. § 4.16(a)(2). The Veteran's back, neck, and shoulder conditions are all due, in part, to the same motor vehicle accident during the Veteran's service. Considered together these conditions are rated at 40 percent. According, the Veteran meets the standard for TDIU under 38 C.F.R. § 4.16(a) if the VA determines he is unable to secure or follow substantially gainful occupation as a result of his service-connected disabilities. As discussed above, the record contains some evidence that the Veteran may be unable to secure or follow substantially gainful employment as a result of his service connected conditions, including his own lay testimony. However, the Board finds this evidence alone does not establish the Veteran is unable to secure or follow any substantially gainful employment. The Board also notes that none of the evidence of record addresses whether the Veteran is able to secure substantially gainful employment as a result of the combination of all his service connected disabilities, including his tinnitus, back, neck, and shoulder conditions as well as his service-connected post-traumatic stress disorder and right knee conditions. As such, the Board finds remand is required for a medical opinion to address whether the Veteran is unable to secure gainful employment based only on his service connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Obtain a medical opinion from the appropriate expert regarding the occupational impairment due to the Veteran's service-connected post-traumatic stress disorder (PTSD), right shoulder condition, back condition, neck condition, right knee condition, and tinnitus (all of his service connected disabilities, not simply one). If such an opinion cannot be reached without an examination, schedule the Veteran for the appropriate examination. 2. Then, readjudicate the claim. If the claim remains denied, provide the Veteran such a supplemental statement of the case and provide an appropriate period of time to respond. The Veteran 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 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs