Citation Nr: 1332471 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-36 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an initial compensable rating for status post fractured ribs. 2. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, status post laminectomy, of the lumbosacral spine. 3. Entitlement to an initial rating in excess of 20 percent for rotator cuff tendonitis of the left shoulder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to July 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for status post fractured ribs, as well as for disabilities of the low back and left shoulder, and denied service connection for major depression. In a May 2013 rating decision, service connection was established for major depressive disorder and that claim is therefore no longer in appellate status before the Board. Because all of the issues on appeal involve disagreement with the initial rating assigned following the award of service connection, the Board has characterized these matters in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). While this appeal was pending an increased initial rating of 20 percent was granted for the service-connected left shoulder disability effective the date of service connection. Even so, as a higher ratings for that disability is assignable and the Veteran is presumed to seek the maximum available benefit, that claim remain viable and have been recharacterized as shown on the title page to reflect the issues currently in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). For the sake of clarification the Board notes that the Veteran had appealed numerous claims arising from the March 2007 rating action, but perfected only the four discussed above. Service connection claims for various eye conditions; and increased rating claims for GERD, facial nerve damage, dermatitis, maxiofacial deformity, and septal perforation, were not pursued on appeal. Specifically, while the September 2008 statement of the case addressed all issues, the Veteran limited her November 2008 substantive appeal (VA Form 9) to the four previously mentioned issues. The Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in March 2009. A transcript of the hearing is associated with the claims file. An October 2013 review of the Virtual VA (VVA) paperless claims processing system reveals that VA/CAPRI records, dated to early December 2012, that were associated with VVA in January 2013, and considered by the agency of original jurisdiction (AOJ) in the May 2013 supplemental statement of the case. Also in the Veteran's paperless file is a pertinent rating action of May 2013, granting service connection for major depressive disorder, and reflecting that an increased initial evaluation of 20 percent was granted for a left shoulder disability. The initial rating claims for disabilities of the low back and left shoulder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT Since the award of service connection, the Veteran's status post fractured ribs have been manifested by residual pain that results in functional impairment related to limitations associated with her activities of daily living, without limitation of motion or function in the chest area, or removal of a rib. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no higher, for status post fractured ribs have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.45, 4.40, 4.59, 4.71a, Diagnostic Code 5297 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. With respect to the initial rating claim on appeal, the VCAA's notice requirements with respect to the underlying service connection claim were satisfied by way of letters sent to the Veteran dated in August 2006 and July 2007. As this is an appeal arising from the award of service connection for residuals of fractured ribs, the notice that was provided before and after service connection was granted was legally sufficient and the VCAA's notice requirements have been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue on appeal has been obtained. The Veteran's service treatment records (STRs) and post-service VA and private treatment records were obtained for the file. A transcript of a hearing held at the RO in March 2009 is also on file. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. VA's duty to assist includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). During the appeal period, VA examinations were conducted in 2006 and 2013. The Veteran and her representative have not alleged that these examinations were inadequate, or that the Veteran's service-connected rib condition has become worse since recently evaluated by VA in February 2013. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected status post rib fractures as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. Additionally, in March 2009, the Veteran was provided an opportunity to set forth her contentions during a hearing before a DRO. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2009 hearing, the DRO enumerated the issue on appeal. Also, information was solicited regarding the Veteran's rib symptomatology, to include how such affects her daily life and the resulting limitation in her activities. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, subsequent to her DRO hearing, the Veteran was afforded a new VA examination in February 2013 so as to assess the current nature and severity of her status post fractured ribs. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim decided herein. As such, the Board finds that the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim decided herein based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claim. Factual Background By rating action of March 2007, service connection was established for status post fractured ribs, for which a noncompensable evaluation was assigned, effective from August 1, 2006, the day after the Veteran's discharge from service. Evidence in the file supporting the grant includes STRs, which revealed that in January 2003, following a motor vehicle accident, the Veteran sustained multiple rib fractures. When evaluated upon VA examination of October 2006, X-ray films revealed multiple healed fractures of the upper left 3rd through 7th ribs, and no evidence of active pulmonary disease. In a November 2008 statement, the Veteran indicated that she was experiencing chronic and debilitating rib pain causing functional impairment. The Veteran provided testimony at a hearing held before a DRO in March 2009. The Veteran and her representative stated that the Veteran's fractured ribs did not heal properly or straight, resulting in pain and functional impairment. A VA examination of the bones was conducted in February 2013 and a history of multiple rib fractures resulting from an automobile accident in 2002 was noted. Course since onset was described as stable, and it was noted that the condition was not under current treatment. The report indicates that the condition is productive of mild pain with bending on the left side; but is not productive of: inflammation, deformity, general debility, or limitation of motion of a joint. Examination revealed tenderness to the lower chest wall, without evidence of deformity or abnormal movement. It was noted that the Veteran was employed full time in the IT field and had lost about 6 weeks of work during the past year, attributed to left leg non-union of bone fracture, and not to the rib condition. Fractured ribs healed with residual pain was diagnosed and the examiner opined that this condition had no significant effects on the Veteran's occupation. Analysis The Veteran is seeking entitlement to an initial compensable disability rating for residuals of fractured ribs. Disability evaluations are determined by the application of a schedule of ratings which 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 there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson, 12 Vet. App. at 126, it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for that disability, as is the case with the present appeal. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found -a practice known as "staged" ratings. More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. A zero percent rating is assigned when the requirements for a compensable evaluation are not met and the schedule does not provide a zero percent evaluation. 38 C.F.R. § 4.31 (2013). Throughout the entire appeal period, the Veteran's rib condition has been evaluated under Diagnostic Code 5297, which provides that a 10 percent evaluation is warranted for the removal of one rib or the resection of two or more ribs without regeneration. A 20 percent evaluation is warranted where two ribs have been removed. A 30 percent evaluation is warranted where three or four ribs have been removed. A 40 percent evaluation is warranted where five or six ribs have been removed. Lastly, a maximum 50 percent evaluation is warranted for the removal of six or more ribs. Notes to this code provide that the rating for rib resection or removal is not to be applied with ratings for purulent pleurisy, lobectomy, pneumonectomy or injuries of pleural cavity. However, rib resection will be considered as rib removal in thoracoplasty performed for collapse therapy or to accomplish obliteration of space and will be combined with the rating for lung collapse or with the rating for lobectomy, pneumonectomy or the graduated ratings for pulmonary tuberculosis. 38 C.F.R. § 4.71a (Diagnostic Code 5297). After having carefully reviewed the evidence of record, the Board finds that the Veteran is entitled to an initial rating of 10 percent, but no higher, for her residuals of multiple rib fractures. As noted above, Code 5297 provides that a 10 percent evaluation is warranted for the removal of one rib or the resection of two or more ribs without regeneration. In this case, it is clear that the Veteran has not suffered the loss or resection of any of her ribs. Rather, the Veteran sustained multiple rib fractures in service that have healed. The Veteran claims that the ribs have not healed properly, however, no medical professional has made such a determination. Rather, when the Veteran was evaluated by VA in 2006, X-rays of the ribs were taken, which showed multiple healed fractures. There was no notation at that time or subsequently that such fractures had healed improperly or had not healed correctly. However, the Veteran has pain as residual to her fractured ribs pain that has resulted in functional loss in that such impacts her activities of daily living. Specifically, at the February 2013 VA examination, fractured ribs, healed, with residual pain was diagnosed. At such time, the only complaints related to the ribs consisted of the Veteran's complaints of pain, reportedly causing functional impairment. While objective examination revealed that the Veteran complained of only mild pain on bending, and findings were negative for inflammation, deformity, general debility, limitation of motion of a joint, or abnormal movement, the examiner found that her residuals of fractured ribs resulted in mild effects on chores, shopping, recreating, traveling, and bathing, and moderate effects on exercise and sports. As noted previously, in Mitchell, supra, the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. However, 38 C.F.R. § 4.59 indicates that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton, supra, the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context (as is the case here), the Board should address its applicability. In the instant case, the Board finds that the Veteran has residual pain associated with her fractured ribs that results in functional impairment related to limitations associated with her activities of daily living. Therefore, pursuant to Mitchell, Burton, and 38 C.F.R. §§ 4.40, 4.59, the Board finds that she is entitled to an initial 10 percent rating for such disability. However, an initial rating in excess of 10 percent is not warranted as there is no evidence that two ribs have been removed. Furthermore, as indicated previously, X-rays revealed healed fractures, and objective findings at the February 2013 VA examination were negative for inflammation, deformity, general debility, limitation of motion of a joint, or abnormal movement. Furthermore, while the Veteran has residual pain from her fractured ribs that impacts her activities of daily living, such results only in mild and, at most, moderate when it comes to physical exercise and sports, impairment. Therefore, the Board finds that an initial rating in excess of 10 percent is not warranted for the Veteran's residuals of fractured ribs. The Board has also considered other potentially analogous rating criteria for the evaluation of this service-connected disability, since the currently-assigned criteria contemplates removal of ribs, and the Veteran did not have her ribs removed. However, the evidence does not support the evaluation of the Veteran's rib disability under any other diagnostic codes. The Veteran has not complained of a respiratory disorder associated with the fractured ribs, nor has any such disorder been clinically shown, and thus an evaluation of this disability under the criteria for respiratory disorders is not warranted. In addition, there is no muscle impairment associated with the rib fracture residuals. Thus, the Board finds that no higher evaluation can be assigned pursuant to any other potentially applicable diagnostic code. In making its determination in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of her service-connected disability at issue and notes that her lay testimony is competent to describe certain symptoms associated with such disability, to include pain. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability rating that has been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran's testimony with regard to the matters she is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue. The Board emphasizes that in making the above determination, staged ratings for the Veteran's rib disability is not warranted as her symptomatology has remained stable throughout the appeal period. See Fenderson, supra. The Board has also contemplated whether the case should be referred for extra-schedular consideration for the disabilities at issue. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The 10 percent rating assigned herein for the Veteran's residuals of fractured ribs contemplates her residual pain that results in functional impairment related to limitations associated with her activities of daily living. There are no additional symptoms that result in impairment of function. See Mitchell, Burton, supra; 38 C.F.R. §§ 4.40, 4.59. Thus there are no symptoms/impairment of function shown or alleged that are not fully encompassed by the criteria for the 10 percent rating assigned. Moreover, the rating schedule provides for ratings higher than that assigned based on more severe functional impairment. Likewise, other rating criteria address additional symptoms. Significantly, the schedular criteria are not inadequate, and referral for extraschedular consideration is not indicated. See Thun, 22 Vet App. 111. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the most recent VA examination report of February 2013 indicates that the Veteran is employed full-time. Therefore, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary The evidence of record reflects that the Veteran's symptomatology for the residuals of multiple rib fractures warrants no more than a 10 percent rating. The Board finds that no higher rating can be assigned pursuant to any other potentially applicable diagnostic code. As such, to the extent that the Board herein denies a rating in excess of 10 percent, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER For the entire appeal period, an initial 10 percent rating, but no higher, for status post fractured ribs is granted, subject to regulations governing the payment of monetary awards. REMAND The Veteran is seeking entitlement to increased initial ratings for service-connected disabilities of the left shoulder and lumbar spine. Although the Board sincerely regrets the additional delay, a remand of this claim is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A; 38 C.F.R. § 3.159(c). A review of the file reflects that a VA examinations of the low back and shoulders were most recently conducted in October 2012. In the Veteran's representative's August 2013 informal hearing presentation, it was maintained that the Veteran's left shoulder and low back symptoms had become worse since last evaluated, warranting new VA examinations. In this regard, the Board observes that the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, and significantly, during both 2012 VA examinations, the Veteran elected not to participate in range of motion testing, secondary to complaints of pain. The Board observes that, as to both of the Veteran's service-connected disabilities, range of motion studies are pertinent findings, specifically addressed in the rating criteria, and provide primary bases in both cases for the assignment of increased ratings, and the accurate assignment of ratings. The Board notes that without such findings, the 2012 examination reports are essentially incomplete. Where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995). Also, reexamination will be requested whenever there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327(a). Therefore, a new and contemporaneous examination should be administered to determine the manifestations and level of severity associated with the Veteran's left shoulder and low back disabilities, to include recorded findings of range of motion studies, conducted to the best of the Veteran's capabilities. The Board takes this opportunity to advise the Veteran that inadequate medical evaluation frustrates judicial review and that it is in her best interest to cooperate to the fullest extent possible upon re-examination. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). Furthermore, in this regard, when a claimant deliberately fails to cooperate with VA in the development of the medical evidence, VA is entitled to rely on the evidence of record in making its determination. 38 C.F.R. § 3.655(a) (2013). See Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). The Board also observes that it appears that the Veteran receives treatment for her service-connected conditions through VA and that records current to December 2012 are on file (physical file and paperless). The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, VA is requested to determine whether records dated from December 2012 forward exist and if so, these should be obtained and considered in conjunction with the readjudication of the claims. See 38 U.S.C.A. § 5103A (b-c); 38 C.F.R. § 3.159(c). Additionally, while on remand, the Veteran should be given an opportunity to identify any additional relevant medical treatment records, from either private or other Federal facilities, which pertain to her service-connected conditions. Thereafter, all identified records should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran shall be given an opportunity to identify any additional evidence, including relevant medical treatment records, from either private or Federal facilities, which pertain to her increased initial rating claims for left shoulder and low back disabilities that have not yet been associated with the claims folder. Appropriate steps shall be taken to obtain any identified records. 2. The AOJ shall request and associate with the file records of VA treatment, evaluation, and hospitalization of the Veteran, dated from December 2012, forward. 3. After obtaining all outstanding treatment records, the Veteran should be scheduled for an appropriate VA examination to determine the current severity and all manifestations (orthopedic and neurologic) associated with her disability of the lumbar spine, characterized as lumbosacral degenerative joint disease. The claims file must be made available to the examiner for review of the pertinent medical and other history. All necessary diagnostic testing, and evaluations should be completed. The Veteran's lay history of symptoms associated with the disability should be recorded. The examiner is asked to address the following: (a) Identify, by diagnosis, any currently manifested low back disorder, describing the symptomatology and impairment associated with the diagnosed disorder(s) to the extent possible. If no such disorder is shown on examination, warranting no diagnosis, the examiner should specifically make such determination for the record and explain why it is concluded that no disability is shown. (b) Provide the range of motion of the lumbar spine (extension, forward flexion, left and right lateral flexion and left and right rotation), expressed in degrees. If the Veteran fails/elects not, to participate in these studies, this fact should be specifically annotated in the examination report, along with the reasons given for such decision. (c) Determine whether the back exhibits weakened movement, excess fatigability, or incoordination attributable to the service connected back disability and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner is also requested to discuss the overall level of functional impairment attributable to these factors. The examiner should express an opinion addressing whether pain could significantly limit functional ability during flare-ups or when the back is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. (d) Identify any neurological manifestations associated with the service-connected lumbar spine disorder, as well as any associated bladder or bowel impairment. (The Veteran has reported having bowel and bladder dysfunction which she has linked to her low back disability - September 2009 statement). The nature of any neurological sign/symptom should be explained and the severity of the impairment described (such as in terms of the level of paralysis - mild/moderate/severe and incomplete or complete). (e) State whether the Veteran has intervertebral disc syndrome. If so, state whether intervertebral disc syndrome results in incapacitating episodes, and if so, the duration of the episodes over the preceding 12 months should be reported. The examiner should note that for VA purposes 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. (f) The examiner is also asked to comment on the impact of the Veteran's low back disability, if any, on the her employment and activities of daily life. A complete rationale for any opinions expressed in this regard should be provided. 4. After obtaining all outstanding treatment records, the Veteran should be scheduled for an appropriate VA examination to determine the current severity and all manifestations associated with her disability of the left shoulder, characterized as rotator cuff tendonitis. The claims file must be made available to the examiner for review of the pertinent medical and other history. All necessary diagnostic testing, and evaluations should be completed. The Veteran's lay history of symptoms associated with the disability should be recorded. (a) The examiner is asked to identify, by diagnosis, any currently manifested left shoulder disorder, describing the symptomatology and impairment associated with the diagnosed disorder(s) to the extent possible. If no such disorder is shown on examination, warranting no diagnosis, the examiner should specifically make such determination for the record and explain why it is concluded that no disability is shown. (b) The examiner should conduct range of motion testing of the left shoulder, expressed in degrees, and should specifically report whether limitation of motion of the arm is at shoulder level, midway between side and shoulder level, or to 25 degrees from side. If the Veteran fails/elects not, to participate in these studies, this fact should be specifically annotated in the examination report, along with the reasons given for such decision. c) Determine whether the left shoulder exhibits weakened movement, excess fatigability, or incoordination attributable to the service connected left shoulder disability and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner is also requested to discuss the overall level of functional impairment attributable to these factors. The examiner should express an opinion addressing whether pain could significantly limit functional ability during flare-ups or when the left shoulder is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. (d) The examiner is also asked to comment on the impact of the Veteran's left shoulder disability, if any, on the her employment and activities of daily life. A complete rationale for any opinions expressed in this regard should be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs