Citation Nr: 1336535 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 07-38 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating higher than 20 percent for low back strain with degenerative joint disease (DJD). 2. Entitlement to a rating higher than 10 percent for the period prior to January 6, 2011, and higher than 20 percent since that date for residuals of tear, supraspinatus tendon with tendinitis, right (major) shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counel INTRODUCTION The Veteran served on active duty from August 1987 to July 1995. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Denver, Colorado, that awarded an increased the rating from 10 to 20 percent for the low back disability, and continued a 10 percent rating for the right shoulder disability. An RO decision review officer, in a January 2012 rating decision, awarded an increase from 10 to 20 percent for the right shoulder, effective in January 2011. The Veteran presented testimony at a Board hearing before the undersigned Acting Veterans Law Judge at the RO in August 2010. A transcript of the hearing is associated with his claims folder and has been reviewed. The case was remanded in December 2011 for additional development. FINDINGS OF FACT 1. The Appeals Management Center completed the additional development directed in the December 2011 Board remand. 2. The Veteran's low back disorder manifests with chronic daily pain and limitation of motion (LOM) but not associated neurological symptomatology or intervertebral disc syndrome (IVDS). LOM on forward flexion of 0 to 30 degrees or less has not manifested. 3. Prior to January 6, 2011, the Veteran's right shoulder disorder manifested with chronic pain and LOM above shoulder level. Since that date it has manifested with chronic pain and LOM to shoulder level. Muscle Group (MG) IV pathology has not manifested during the current rating period. CONCLUSIONS OF LAW 1. The requirements for an evaluation higher than 20 percent for low back strain with DJD are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, General Rating Formula for Diseases and Injuries of the spine (General Formula), Diagnostic Code (DC) 5237 (2012). 2. The requirements for an evaluation higher than 10 percent for the period prior to January 6, 2011, and higher than 20 percent since that date for residuals of tear, supraspinatus tendon with tendinitis, right (major) shoulder are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under applicable criteria, VA has certain notice and assistance obligations to claimants. 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 claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See 38 C.F.R. § 3.159(b), see also 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 claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The required notice was provided by a letter dated in July 2006, which informed the Veteran of all the elements required by Pelegrini II, as stated above. The letter also informed the Veteran how disability ratings and effective dates are established. With respect to the earlier noted August 2010 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires the RO official or AVLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (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 hearing, the undersigned ensured the Veteran understood the issues before the Board and asked specific questions related to areas not addressed by the Veteran's representative, such as whether all of his treatment is at VA facilities and the impact of his disability on his activities of daily living. Further, neither the Veteran nor his representative has asserted any dissatisfaction with how the hearing was conducted. Hence, Bryant was complied with. In light of all of the above, the Board finds the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist claimants with their claims. See 38 C.F.R. § 3.159(c). Documents in the claims file show the RO obtained the Veteran's treatment records from the VA facilities he identified and the records related to his Workmen Compensation claim for his work related injuries. The RO also arranged appropriate examinations of the Veteran prior to the rating decision on appeal and during the processing of the Veteran's appeal. As already noted, the case was remanded for further development, to include a recent examination. Neither the Veteran nor his representative asserts that there are additional records to be obtained, or that the RO failed to obtain any records identified. Hence, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Id.; see also Bernard, 4 Vet. App. 384. Hence, the Board may address the merits of the appeal without prejudice to the Veteran. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Applicable Law and Regulation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA must interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA must resolve any reasonable doubt regarding the degree of disability in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Where there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7, see also 38 C.F.R. § 4.21. The Board will consider entitlement to staged ratings to compensate for times when the Veteran's disability may have been more severe than at other times during the course of the claim on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007) VA must evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). For disabilities evaluated on the basis of LOM, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court Of Appeals For Veterans Claims has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range of motion (ROM) loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). Analysis By way of history, a January 1997 rating decision granted service connection for low back and right shoulder disorders and rated each 10 percent disabling, effective in July 1995. VA received the Veteran's current claims for increased rating in July 2006. VA outpatient records of March 2005 note the Veteran's history of chronic low back pain. An MRI examination is noted to have revealed some bulging discs but no spinal cord effacement or nerve root compression. The entry also notes the Veteran received a physical therapy evaluation and was shown home exercises. The examiner noted the Veteran received an orthopedic evaluation and he did not have a surgical problem. The Veteran declined epidural steroid injections for his low back, and he used Ibuprofen and Methocarbamol on an as-needed basis. He used Tylenol-3 very sparingly, as he worked as a parole officer for the Colorado Department of Corrections. He also reported pain between the shoulder blades. In November 2005, the Veteran injured his low back and right shoulder in the process of physically restraining a parolee. His employer referred him for an evaluation to determine if he could continue as a parole officer. A May 2006 private Functional Capacity Evaluation (FCE) notes the Veteran reported he had been in constant pain since the incident. The FCE report does not include specific ROM values, but the assessor did note the Veteran could bend to where his fingers reached mid-tibia level. Further, the neurological examination revealed normal sensation and reflexes. Low Back A July 2003 rating decision reflects the Veteran's low back disability is evaluated as a lumbosacral strain. Spine disabilities are rated under the General Formula, which provides the rating criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, 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 criteria for a 30 percent evaluation pertain only to the cervical spine and are therefore not applicable in this case. A 40 percent rating is warranted where lumbar spine forward flexion is 0 to 30 degrees or less. Id. A rating higher than 40 percent is warranted only where there is ankylosis of the thoracolumbar spine. Id. Associated neurological symptomatology is evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note (1). A May 2006 VA outpatient entry notes the Veteran brought a copy of the FCE with him, and he asked the examiner to fill out a Colorado Disability Form. The examiner informed the Veteran the VA facility did not conduct FCEs, and he could do no more than transcribe the information on the private FCE report. The Veteran denied any numbness and tingling on the day of the May 2006 VA assessment, and he reported he was in physical therapy with only minimal relief. He reported further that he walked with a walker without discomfort. Physical examination revealed forward flexion where the fingertips were to middle of the shins with some discomfort at the end point. There was no excruciating pain, and no myelopathy was noted. Sitting straight leg raising was negative bilaterally. The January 2007 VA examination report reflects the examiner conducted a review of the claims file as part of the examination. The report notes the Veteran denied any in-service traumatic back injury. Instead, he experienced the insidious onset of low back pain, was evaluated with x-rays, and treated symptomatically. The examination report notes further the Veteran was trained in law enforcement and, after separation from the military, he worked as a parole officer for eight years until he was injured while doing that job. The Veteran reported he had been in constant pain since the incident. In April 2006, the Veteran formally retired from that job, as he was deemed physically incapable of performing law enforcement duties. The Veteran reported he was a stay-at-home dad. He reported further that he was capable of walking 15 to 30 minutes limited by back pain, and he did not use any assistive devices. The Veteran reported having constant pain in the lumbar area that radiated into the posterior area of the left thigh. He reported flare-ups of more severe pain that occurred three to four times a week which lasted for hours. Relief was obtained by laying supine and taking Vicodin. Occasionally the back pain disrupted his sleep. The Veteran denied any physician-prescribed bed rest over the prior 12 months. He reported he was fully independent in his activities of daily living, though he did have difficulty bending forward to put on pants and socks. He added that his leisure activity was affected. The examiner observed the Veteran was slow to rise from a chair but walked with a normal gait without any assistive device. Physical examination revealed the Veteran's spine to have normal curvature, and there was no visible muscle spasm. The paraspinous muscles were diffusely tender to palpation, left greater than right. ROM on forward flexion was 0 to 50 degrees with pain, passively and against resistance. The Veteran's lumbar spine ROM was also limited by pain in the other spheres of thoracolumbar spine motion. Repetitive-use testing revealed no additional loss of ROM. The examiner noted that the Veteran's mobility in fact increased with repetition. Neurological examination revealed negative straight leg raising bilaterally. There was no muscular atrophy, and motor strength was 5/5 throughout. Deep tendon reflexes were 2+ throughout, and sensation to light touch was intact. The examiner noted a May 2006 MRI examination was interpreted as having shown degenerative changes at multiple levels without neural impingement, and May 2006 x-rays revealed lumbar spondylosis. The examiner diagnosed lumbar strain with degenerative changes on MRI and x-ray. The examiner opined the Veteran's service-connected lumbar strain was aggravated by the November 2005 work-related injury. The examiner noted the Veteran's complaints of pain appeared out of proportion to the objective findings on clinical examination. The examiner opined the Veteran's low back rendered him incapable of performing work that entailed repetitive bending, stooping, or lifting more than 20 pounds, but the Veteran was capable of doing sedentary work with allowance for frequent breaks with position change. The March 2007 rating decision reflects that, upon receipt of the January 2007 examination report, the RO awarded an increased rating from 10 to 20 percent. The Board finds the objective findings on clinical examination show the Veteran's low back disability to more nearly approximate the assigned 20 percent rating. 38 C.F.R. § 4.71a, General Formula. A higher rating was not met or approximated, as the Veteran's thoracolumbar spine motion on forward flexion was greater than 0 to 30 degrees. Further, the examiner noted there was no additional loss of ROM due to pain, fatigue, etc., on repetitive use, and although the Veteran reported flare-ups, he did not report additional functional limitation associated with the flare-ups and the evidence does not otherwise suggest limitation of flexion to 30 degrees during flare-ups. See 38 C.F.R. §§ 4.40 and 4.45. The examination also revealed no basis for a separate rating for associated neurological pathology, as the neurology examination was normal. In his April 2007 notice of disagreement, the Veteran asserted only that his low back disability should be rated higher. He did not provide a basis for the assertion. On his November 2007 Substantive Appeal, the Veteran's assertions were all related to other claims for which he has been granted service connection. The Veteran was afforded a VA examination in conjunction with his claim of entitlement to service connection for fibromyalgia. The June 2009 examination report reflects the Veteran reported constant daily pain of mild to moderate severity, which increased as physical activity increased. He reported further that he was still independent with his activities of daily living, though he did them slowly with rest breaks. He had ceased certain sports, such as hiking, snowboarding, and climbing. The Veteran reported he still did limited housework and some container gardening. Physical examination revealed the Veteran had no mobility or gait problems, and he moved well from chair to examination table. The examiner noted he was moderately obese. Examination of the thoracolumbar spine revealed significant trigger points over the mid-thoracic paraspinal muscles. Standing posture was normal, and there was no vertebral tenderness. ROM on forward flexion, passive and against resistance, was 0 to 70 degrees limited by pain. Repetitive-use testing revealed no change in those values. Muscle strength was normal in all muscle groups. The Board finds the objective findings on clinical examination in June 2009 revealed the Veteran's low back continued to manifest at a rate no higher than the assigned 20 percent rating. 38 C.F.R. § 4.71a, General Formula. A higher rating was not met as the Veteran's thoracolumbar motion on forward flexion was much greater than 0 to 30 degrees. Further, the examiner noted repetitive-use testing did not reveal any additional loss of ROM due to pain, fatigue, etc, and the Veteran did not allege even episodic limitation of motion to 30 degrees, such as during flare-ups. The examination also revealed no basis for a separate rating for associated neurological pathology. In November 2009, the Veteran was afforded another examination related to a claim for a total rating on the basis of individual unemployability. The examination report reflects the Veteran reported low back symptoms similar to those reported at the July 2009 examination. He denied any weakness due to his daily pain or radiation of the pain, but he did report stiffness. The Veteran used heat, Vicodin, and rest for relief of his symptoms. He reported monthly flare-ups of increased pain that occurred without any apparent trigger, which lasted for three to seven days; and, he treated them similarly. The Veteran reported he did not experience incapacitation, and he used a cane as needed. He reported he could walk about a block and drive for half-hour. He had some difficulty bending to tie his shoes, but he was otherwise independent. Physical examination revealed normal standing posture of the thoracolumbar spine, and the Veteran moved well from chair to examination table. There was no vertebral tenderness or paraspinal muscle spasm. ROM on forward flexion, passively and against resistance, was 0 to 45 degrees limited by pain. Neurological examination revealed no focal muscle atrophy of the lower extremities, and strength was intact to manual muscle testing. Sensation was intact to light touch and pinprick, and deep tendon reflexes were 2+ and symmetrical at the knees and ankles. Gait examination was also normal. The examiner noted the Veteran was capable of performing sedentary work if noted focus and concentration issues were addressed. The examiner noted further, however, that those issues were related to the Veteran's fibromyalgia. The objective findings on clinical examination show the Veteran's low back disability continued to manifest at the 20 percent rate. 38 C.F.R. § 4.71a, General Formula. A higher rating was not met as the Veteran's thoracolumbar motion on forward flexion was greater than 0 to 30 degrees. Further, the examiner noted repetitive-use testing did not revealed any additional loss of ROM due to pain, fatigue, etc., and although the Veteran reported flare-ups, he did not report additional limitation of motion associated with the flare-ups and the evidence does not otherwise suggest limitation of flexion to 30 degrees during flare-ups. The examination also revealed no basis for a separate rating for associated neurological pathology. At the hearing, the Veteran testified he had experienced six to seven incapacitating episodes over the prior year, and that an episode could last up to a week. He testified further that he was in constant pain, and prolonged sitting induced numbness at the buttocks. The Veteran testified he was significantly limited in his recreational activities. He also testified that his disability had increased in severity since the 2007 VA examination. In light of his testimony, the Board remanded the case for an examination to determine the current severity of the Veteran's low back disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The January 2011 examination report reflects the examiner conducted a review of the claims file as part of the examination. The examiner noted the review revealed the Veteran's medications included Hydrocodone for relief of constant pain. The Veteran reported daily mild low back pain, moderate pain two days a week, and severe pain once a week. He reported further that the pain radiated to both hips and was associated with stiffness. He denied any associated weakness. The Veteran's treatment included rest, icing, and Ibuprofen with good temporary benefit. He reported further that cold weather triggered flare-ups that he treated similarly to his daily symptoms, and he used a cane as needed. The Veteran denied incapacitation, weakness, or incoordination. The Veteran reported low back pain at rest that increased with use, especially repetitive use but he denied any increased loss of ROM during flare-ups. The examiner noted the Veteran provided few specifics of his limited functional ability. The examiner noted the Veteran dropped his cell phone during the interview, and he asked the examiner to retrieve it for him. He related he asked his children to retrieve dropped objects for him when he was unable to bend and retrieve them. The Veteran reported his low back limited his ability to play with his children. The examiner noted the Veteran did not provide any information about housework or other activities of daily living, but he was independent in routine activities of daily living. Physical examination of the thoracolumbar spine revealed normal standing posture. There was no vertebral tenderness or paraspinal muscle spasm. The examiner noted overt pain behavior by the Veteran, which was facial grimacing with sitting on the examination table propped on the right arm leaning to the right. ROM on forward flexion, tested passively and against resistance, was 0 to 50 degrees limited by pain. The Veteran's gait was normal. The Board finds the objective findings on clinical examination shows the Veteran's thoracolumbar spine disability continued to manifest at the assigned 20 percent rate. 38 C.F.R. § 4.71a, General Formula. A higher rating was not met, as the Veteran's thoracolumbar spine motion on forward flexion was greater than 0 to 30 degrees, to include after repetition. Further, although the Veteran reported flare-ups, he denied additional limitation of motion during the flare-ups and the evidence does not otherwise suggest limitation of flexion to 30 degrees during flare-ups. Finally, the examination revealed no basis for a separate rating for associated neurological pathology, as the neurology examination was normal. In light of the findings on several VA examinations, as set forth above, the Board finds the Veteran's low back disability is appropriately rated at 20 percent. 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, General Formula, DC 5237. The Board notes the General Formula is based on entirely objective criteria. The Board acknowledges the Veteran's chronic daily pain; but it is not the mere presence of pain that dictates a rating but the functional loss due to pain. See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The Board further finds that a separate rating is not warranted for associated neurological pathology as there is no objective evidence of neurological deficit related to the low back disability. The Board notes that the March 2007 rating decision reflects the Veteran's low back is evaluated under DCs 5237-5243. A hyphenated code is used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation. See 38 C.F.R. § 4.27. DC 5237, as earlier noted, evaluates cervical or lumbosacral strain. DC 5243 evaluates IVDS. The Board notes, however, that the January 1997 rating decision granted service connection under DCs 5295-5292, which rated lumbosacral strain and lumbar spine LOM under the prior criteria. As the evidence of record shows, as set forth above, there is no finding or diagnosis of IVDS. The January 2011 examination report notes the examiner specifically determined that there was no IVDS. The significance of this fact relates to the Veteran's hearing testimony that he experienced six to seven incapacitating episodes a year. See Transcript, pp. 5-7. Even assuming DC 5243 were applicable, however, the Board finds no notation in the Veteran's outpatient records of any physician-prescribed bed rest, and the examination reports set forth earlier in this decision did not note any. Hence, the Board finds no factual basis for evaluating the Veteran's low back disability on the basis of incapacitating episodes; his low back disability is properly evaluated on the basis of LOM. See 38 C.F.R. § 4.71a, DC 5243. Right Shoulder Historically, the January 1997 rating decision that granted service connection for the right shoulder disorder reflects the initial 10 percent rating was assigned under DC 5304, which evaluates a muscle injury of MG IV. See 38 C.F.R. § 4.73. The rating decision noted the medical evidence revealed a history of impingement syndrome and tendonitis due to a tear of the supraspinatus tendon. The March 2007 rating decision that continued the 10 percent rating, however, notes the Veteran's right shoulder was evaluated analogous to tenosynovitis under DC 5024. See 38 C.F.R. § 4.20; see also Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010). DC 5024 requires the disorder to be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a. DC 5003 provides that degenerative arthritis established by x-ray is rated on the basis of LOM under the appropriate DCs for the joint involved. Further, if the LOM of the joint involved is noncompensable, a rating of 10 percent is applicable. Id. LOM must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of LOM, rate as below: With x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent. Id., Note (1); with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. Id., Note (2). The shoulder is a major joint. 38 C.F.R. § 4.45(f). The interplay between DC 5003, arthritis established by x-ray, and LOM is further clarified in VAOPGCPREC 9-98, which provides that there must be LOM at least to the extent of zero percent disabling albeit non-compensable. Id., pp. 1-2. This means that, even with x-ray evidence of arthritis, if ROM is normal and pain free, that is not the same as "absence of LOM" for purposes of qualifying for a 10 percent evaluation. Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, DCs 5200 through 5203. A distinction is made between major (dominant) and minor upper extremities for rating purposes. In the instant case, the examination reports reflect the Veteran is right handed, which means that his right shoulder is the dominant shoulder. The RO rated his right shoulder under DC 5201, which is rated on the basis of LOM. 38 C.F.R. § 4.71a. Normal ROM of the shoulder is forward elevation (flexion) of 0 to 180 degrees; abduction of 0 to 180 degrees, external rotation of 0 to 90 degrees and internal rotation of 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. A 20 percent evaluation is warranted for LOM of the major arm when motion is possible to the shoulder level. LOM to midway between the side and shoulder level warrants a 30 percent evaluation for the major arm, and a 40 percent evaluation for LOM of the major arm requires that motion be limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The May 2006 private FCE report notes physical examination of the right shoulder revealed active flexion of 0 to 135 degrees and abduction of 0 to 110 degrees. External rotation was within normal limits, and internal rotation lacked four inches of reaching the opposite lower margin of the scapula. Parenthetically, the Board notes VA criteria considers normal shoulder external and internal rotation to be 0 to 90 degrees. The FCE does not indicate what "within normal limits" means. The examiner noted the shoulder was significant for grind on external and internal rotation. While supine, the right shoulder apprehension test was positive. Grip strength on the right was decreased as compared to the left. The January 2007 VA examination report reflects the Veteran reported a history of in-service shoulder symptoms similar to those related to his low back. He told the examiner he had residual shoulder symptoms but none severe enough to warrant evaluation or treatment. This changed after the November 2005 work-related injury. Since the work injury, the Veteran reported, he had experienced flare-ups of pain every other week that lasted several hours. The flare-ups were frequently precipitated by sleep and relieved by the Vicodin prescribed for his back. The Veteran reported he was independent in his activities of daily living, but he had difficulty reaching above shoulder height, such as to reach an object on a shelf. Physical examination of the right shoulder revealed no muscle atrophy, deformity, or edema. It was nontender to palpation. ROM, tested active and passively against resistance, was 0 to 160 degrees on flexion and abduction, both limited by pain. Internal and external rotation were intact and pain-free to 90 degrees. Repetitive-use testing revealed painful motion from 140 to 160 degrees of abduction, with no further limitation of forward flexion, internal rotation, or external rotation. Apprehension test was negative, and there was no evidence of instability. The examiner noted February 2006 right shoulder x-ray images were interpreted as showing mild acromioclavicular (AC) hypertrophy, otherwise unremarkable. The examiner diagnosed right shoulder supraspinatus tendinitis with normal x-ray but with LOM. The March 2007 rating decision notes the RO evaluated the right shoulder analogously because supraspinatus tendinitis is not listed in the rating schedule. The Board infers the RO took this action because the January 2007 examination did not note any muscle deformity or weakness. The assignment of a particular DC is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. But any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board finds no apparent impropriety in the RO opting to rate the disorder under a different DC, especially in as much as the Veteran's then existing rating was continued. As concerns the evaluation, the Board finds the objective findings on clinical examination shows the right shoulder to have more nearly approximated the assigned 10-percent rating. 38 C.F.R. §§ 4.59, 4.71a, DC 5003. The Board notes the lowest compensable rating under DC 5201 is 20 percent for either the major or minor extremity, for motion limited to shoulder level. The ROM finding of flexion and abduction of 0 to 160 degrees is above shoulder level, which is at 90 degrees. See 38 C.F.R. § 4.71a, Plate I. Hence, the objective findings on clinical examination showed the Veteran's right shoulder LOM to be noncompensable under DC 5201. See 38 C.F.R. § 4.31. Under these circumstances, DC 5003 provides for a 10-percent rating. 38 C.F.R. § 4.71a. Further, DC 5003, Note (2) specifically directs that the ratings based on x-ray findings do not apply to conditions rated under DCs 5013 to 5024, inclusive, which is how the RO evaluated the right shoulder. Hence, the Board finds the RO properly rated the right shoulder at 10 percent. 38 C.F.R. §§ 4.1, 4.59, 4.71a, DC 5003-5024. The Board finds a higher rating was not met or approximated, as the examiner noted repetitive-use testing did not revealed additional loss of ROM due to pain, weakness, etc, and although the Veteran reported flare-ups, he did not allege limitation of motion to the shoulder during the flare-ups, and the record does not otherwise suggest such limitation of ROM during flare-ups. See 38 C.F.R. §§ 4.40 and 4.45. The June 2009 VA fibromyalgia examination report reflects the Veteran reported bilateral shoulder pain. The physical examination did not address shoulder ROM. The report does note, however, that manual muscle strength testing was conducted on all four extremities, which revealed normal strength in all muscle groups. At the November 2009 examination, the Veteran reported a slow deterioration of his right shoulder since the last examination. He reported a daily dull pain and crepitus with movement. The pain was associated with stiffness but no weakness, swelling, or instability. The Veteran also reported flare-ups in cold weather, he was unable to throw overhand, and he no longer shot rifles due to the recoil. Physical examination revealed mild tenderness of the anterior joint area. There was no deformity, swelling, or instability. ROM, passive, active, and against resistance, was 0 to 120 degrees on flexion and abduction, the former limited by stiffness, and the latter by pain. External rotation was 0 to 90 degrees. The examination findings of 0 to 120 degrees reveal the Veteran's right shoulder was capable of motion above shoulder level, to include after repetition. See 38 C.F.R. § 4.71a, Plate I. Furthermore, he did not allege limitation of motion to the shoulder to include during the flare-ups, and the record does not otherwise suggest such limitation of ROM during flare-ups: the Veteran only reports limitation of overhead activity, which is beyond shoulder level. The findings show the right shoulder LOM was noncompensable. 38 C.F.R. §§ 4.31, 4.71a, DC 5201. Thus, the Veteran's right shoulder continued to more nearly approximate the assigned 10-percent rating. 38 C.F.R. § 4.71a, DC 5003. At the hearing, the Veteran testified to how his right shoulder disability has limited his ability to function, especially as to recreational activities. He described how he had to sleep on one side or his right shoulder awakened him at night, and he no longer could fire high-powered rifles, which he once enjoyed, due to the pain induced by the recoil. The Veteran testified further that if he did a lot of reaching "and doing a lot of stuff," his right arm went numb. He also testified he started doing a lot of things with his left hand. The Veteran testified he was not incapacitated, but he did have a lot of pain. He no longer could pick up his children or tie his shoes, and he tried to keep everything at waist level. The January 2011 examination report reflects the Veteran reported that since the 2009 examination he had developed a chronic deep shoulder joint pain at rest, which increased with activity, flexion, and extension. He denied any associated weakness, fatigue, or incoordination. There was no instability or swelling, but there was stiffness. The Veteran reported further that he was unable to sleep on his right side. Ibuprofen provided good temporary relief. He also reported occasional mild locking and cold weather-related flares. The Veteran denied additional loss of ROM due to pain on use or during flare-ups. The Veteran did not report the flare-ups limited his functional ability of his activities of daily living. Physical examination of the right shoulder revealed no deformity or swelling. There was mild tender to palpation of the anterior aspect. There was no instability. ROM, tested passively, actively, and against resistance, was 0 to 90 degrees on flexion and abduction active, with stiffness, and 0 to 120 degrees passively, limited by pain. Internal and external rotation were 0 to 90 degrees. As the January 2012 rating decision determined, the objective findings on examination show the right shoulder more nearly approximated a 20-percent rating as of January 6, 2011, the date of the examination, as shoulder motion was limited to shoulder level. 38 C.F.R. §§ 3.400(o), 4.71a, DC 5201; see also 38 C.F.R. § 4.71a, Plate I. The January 2011 examination is the earliest it can be factually ascertained that he met the criteria for the 20 percent rating. The Board finds a higher rating was not met or approximated as the objective findings on clinical examination showed the right shoulder motion was greater than midway between side and shoulder level, and the Veteran has not alleged additional loss during flare-ups corresponding to such limitation. DC 5201. Further, the examiner noted repetitive-use testing did not reveal any additional loss of ROM. See 38 C.F.R. §§ 4.40 and 4.45. Thus, the right shoulder was properly rated at 20 percent as of January 2011. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, DC 5201. As discussed in the general requirements related to disability ratings, the Veteran is entitled to a staged rating for any part of the rating period on appeal where either disability manifested at different levels of severity. Hart, 21 Vet. App. 505. As the preponderance of the evidence of record set forth and discussed earlier shows, the Veteran's low back disability has manifested at the 20-percent rate throughout the entire rating period. Hence, there is no factual basis for a staged rating for any part of the rating period. As concerns the right shoulder, the preponderance of the evidence of record shows the right shoulder did not more nearly approximate a rating higher than 10 percent prior to January 2011. Thus, the Veteran has received a staged rating for the right shoulder where indicated by the evidence. 38 C.F.R. § 3.400(o). The Board notes the Veteran is also service connected for fibromyalgia and PTSD. The Board notes further that the June 2009 examination report notes the Veteran's pain was secondary to that disability. His fibromyalgia is rated at 40-percent disabling. The Board notes this fact to show the Veteran is separately rated for his other disabilities. In reaching this decision, the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). The Board has also considered whether there is any additional functional loss not contemplated in the currently assigned ratings. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). 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. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical"). Therefore, 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. Thun, 22 Vet. App. at 115. 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, therefore, adequate, and no referral is required. The Board finds that the Veteran's low back and right shoulder disabilities are not so unusual or exceptional in nature as to render either rating inadequate. The criteria by which the Veteran's disabilities are evaluated specifically contemplate the level of impairment caused by each disability. Id. The Veteran's disabilities are evaluated under to 38 C.F.R. § 4.71a for limitation of motion, the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. When comparing the Veteran's symptoms with the symptoms contemplated in the Rating Schedule, the Board finds that the schedular evaluations regarding the Veteran's disabilities are not inadequate. Ratings in excess of the currently assigned ratings are provided for certain manifestations of the low back and right shoulder disabilities, but the medical evidence reflects that those manifestations are not present in this case. The criteria for the assigned ratings reasonably describe the Veteran's disability levels and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required. Finally, the Board has considered whether an inferred claim for a total rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is no longer employed and that he has reported that he stopped working because of his service-connected disabilities. The record indicates that a claim of entitlement to a TDIU was considered, but denied, in a March 2010 rating decision which was not appealed. Subsequent to that decision, the record does not include any new evidence, such as medical findings or noncumulative histories, to suggest unemployability due to the low back or right shoulder disability. Thus, Rice is inapplicable. ORDER Entitlement to a rating higher than 20 percent for low back strain with DJD is denied. Entitlement to a rating higher than 10 percent for the period prior to January 6, 2011, and higher than 20 percent since that date for residuals of tear, supraspinatus tendon with tendinitis, right (major) shoulder, is denied. _________________________________________________ N. SNYDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs