Citation Nr: 1342191 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 09-25 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating greater than 10 percent rating prior to September 26, 2007 and greater than 30 percent from September 26, 2007, for exercise-induced asthma. 2. Entitlement to a compensable rating prior to May 27, 2011 and an increased rating greater than 30 percent from May 27, 2011, for migraine headaches. 3. Entitlement to an increased rating greater than 10 percent for recurrent lumbosacral strain. 4. Whether the reduction from 10 percent to noncompensable for service-connected residuals of right shoulder with recurrent rotator cuff tears and multiple surgeries with bursitis effective from September 1, 2011, was proper. 5. Entitlement to a rating greater than 10 percent for residuals of right shoulder with recurrent rotator cuff tears and multiple surgeries with bursitis. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Karl A. Kasmierczak, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from May 1993 to April 1997, from September 1999 to December 2000, and from January 2004 to March 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which continued the Veteran's then current disability ratings and denied entitlement to TDIU. In a subsequent August 2011 supplemental statement of the case (SSOC), however, the RO increased the evaluation for the Veteran's migraine headaches and exercise-induced asthma to 30 percent, effective May 27, 2011 and September 26, 2007, respectively. Since the RO did not assign the maximum disability ratings possible, the appeals for higher ratings for migraines and asthma remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The August 2011 SSOC also reduced the disability rating for the Veteran's right shoulder disability from 10 percent to noncompensable, effective September 1, 2011. However, as the Veteran's overall combined rating remained unchanged there was no requirement to provide notice of the reduction. See 38 C.F.R. § 3.105(e) (2013). Given the above, the Board would be permitted to consider the entirety of the claim as one for increased rating (rather than as separate claims for the propriety of the reduction and for an increased rating). As the Board concludes that the Veteran's symptoms continue to warrant at least a 10 percent rating, but that a rating greater than 10 percent is unclear based on the evidence of record, for the sake of clarity the claims have been styled as above. The Veteran was afforded a hearing before the undersigned at the RO in August 2013. A transcript of the proceeding has been associated with the claims file. The Board has not only reviewed the Veteran's physical claims file, but also her Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing systems to ensure a total review of the evidence. The issues of entitlement to increased ratings for lumbosacral spine and right shoulder disabilities, as well as entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. In August 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, during the aforementioned Board hearing, that a withdrawal of the appeal of entitlement to an increased rating for exercise-induced asthma was requested. 2. The Veteran's migraine headaches are shown to be manifested throughout the appellate time period by a disability picture that more closely approximates that of migraine headaches with characteristic frequent prostrating and prolonged attacks productive of severe economic inadaptability. 3. From September 1, 2011, the competent evidence fails to reflect material improvement in the Veteran's service-connected right shoulder disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to an increased rating for exercise-induced asthma have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2013). 2. The criteria for an increased rating of 50 percent, but no higher, for the entire appellate time period for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.124a, Diagnostic Code (DC) 8100 (2013). 3. The reduction of the 10 percent rating to a noncompensable rating for residuals of right shoulder with recurrent rotator cuff tears and multiple surgeries with bursitis from September 1, 2011, was improper and the 10 percent rating is restored effective from September 1, 2011. 38 U.S.C.A. §§ 1155, 5107, 5112(b)(6) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.105(e), 3.159, 3.344(c), 4.1-4.14, 4.40, 4.45, 4.71a, DC 5201-5024 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Claim for Increased Rating for Exercise-Induced Asthma Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2013). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (2013). The Board notes the May 2009 statement of the case (SOC) also included the issue of entitlement to an increased rating greater than 10 percent for exercise-induced asthma, which was increased to 30 percent in the aforementioned August 2011 SSOC. The Veteran properly appealed this issue in her July 2009 substantive appeal. However, the Veteran subsequently indicated during her August 2011 Board hearing that she wished to withdraw her appeal of that issue. Such notification was reduced to writing in the hearing transcript noted above. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding that claim. Accordingly, the Board finds that the issue of entitlement an increased rating greater than 10 percent rating prior to September 26, 2007 and greater than 30 percent from September 26, 2007, for exercise-induced asthma has been properly withdrawn by the Veteran and dismisses the claim. Veterans Claims Assistance Act of 2000 (VCAA) In light of the fully favorable decision herein as to the issue of the propriety of the reduction from 10 percent to noncompensable for service-connected residuals of right shoulder with recurrent rotator cuff tears and multiple surgeries with bursitis effective from September 1, 2011, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. With respect to the Veteran's migraine headache claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in July 2007 and January 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claim. The letters informed her that additional information or evidence was needed to support her claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As noted above, the Veteran also was afforded a hearing before the undersigned during which she presented oral argument in support of her claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/AVLJ/DRO who chairs a hearing fulfill two duties to comply with the above 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, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determinations, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, neither the Veteran nor her representative has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearings. By contrast, the hearings focused on the elements necessary to substantiate the claims, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. Records from the Social Security Administration (SSA) have been associated with the claims file. Private records identified by the Veteran have been associated with the claims file, to the extent available. The Veteran has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the headache claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran appropriate VA examinations in August 2007 and May 2011. The VA examination reports are thorough and supported by the other treatment evidence of record. The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination reports also discussed the impact of the disability on the Veteran's daily living. Based on the examinations and the fact there is no rule as to how current an examination must be, the Board concludes the examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating for Migraine Headaches Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. 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, 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). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2013). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's migraine headaches are rated as noncompensable prior to May 27, 2011 and as 30 percent disabling from May 2011 under DC 8100. The Veteran claims that the current ratings do not accurately reflect the true nature and degree of her disability. DC 8100 provides ratings for migraine headaches. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensably (0 percent) disabling. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, DC 8100 (2013). The Veteran asserts that she has experienced migraine headaches since falling and hitting her head in service, but that in recent years the severity and frequency of the headaches have significantly increased. After filing her claim for increased rating, the Veteran was afforded a VA examination in August 2007. The Veteran reported that she had not worked since leaving the military due to multiple medical problems and that she was separated from service due to health problems that included headaches. At present, the Veteran had headaches almost every day. On almost every occasion she would have to take an Imitrex and a Lunesta and lie down and take about a three-hour nap. This would relieve the symptoms. As she was only allowed nine Imitrex a month, however, it made things difficult the other days of the month. She experienced a shooting pain behind the left eyeball that felt like it was squeezing her brain out. She also experienced nausea, blurred vision, and photophobia. Smells, bright lights, and back problems all could trigger the headaches. The diagnosis was mid-vascular musculoskeletal tension headaches with the above-mentioned frequency. During a December 2007 neurological evaluation, the Veteran reported experiencing memory problems due to the effects of her medication. On that day of evaluation, however, she had not taken any medication and testing was normal. The assessment was adverse effects of medication and rule out anxiety disorder not otherwise specified. A January 2008 VA treatment record included the Veteran's reports of two to three headaches per week, with migraine symptoms that could last from two to three days. The assessment was migraine headaches. Another January 2008 record indicated that the Veteran had "severe migraine headaches." In a statement, the Veteran also indicated that she experienced four to six headaches per week, most of which were debilitating. They were triggered by bright lights, smells, noise, heat, and stress. In her July 2009 substantive appeal, the Veteran stated that she experienced two to three debilitating headaches per week and that she had been denied vocational rehabilitation because her headaches were so severe. A March 2011 letter from a VA treating physician stated that the Veteran suffered from "debilitating migraine headaches" and that treatment efforts had been generally unsuccessful. The Veteran was afforded another VA examination in May 2011. Currently, the Veteran was taking Imitrex and Excedrin migraine, with an average of six pills per day. The examiner noted that the response to treatment was fair. She denied having a headache every day, but would take the medication when one occurred. During worse headache episodes she was forced to lie down, but otherwise was able to continue her ordinary activities. During the past twelve months she had experienced weekly headaches, with less than half of the headaches being prostrating in nature. The usual duration of the headaches was hours long. The diagnosis was migraine headaches, with the effect on occupational activities being pain and no effect on usual daily activities. The examiner observed that the Veteran currently was unemployed, but that the specific reasons for the unemployment were not specified. During her August 2013 Board hearing, the Veteran reported three to four migraines per week and discussed related symptoms of nausea, fatigue, light sensitivity, and memory problems. She asserted that she would have to take extended naps in the hope of getting rid of the migraines. She also indicated that she had "very few good days." One recent migraine had lasted for four days. In this case, the Veteran has reported that her headaches occur from 1 to 6 times per week or more, depending on the report. The Veteran has described approximately half of these headaches as being completely prostrating and debilitating, requiring that she take an extended nap in the hope of relieving the symptoms. The headaches also result in memory problems, fatigue, light sensitivity, nausea, and similar symptoms. These attacks have occurred with similar frequency during the appellate time period. The Veteran's description of her symptomatology appears to be within the competency of a lay person. See, e.g., Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The August 2011 SSOC conceded that the Veteran's reported symptoms, at least for some period of the appellate time period, represented prostrating migraine headache attacks. As discussed above, the headaches are of prolonged duration, lasting from hours to days. The critical question, therefore, is whether the headaches are productive of severe economic inadaptability. The record reflects that the Veteran has been unemployed throughout the appellate time period. In addition, she is in receipt of disability benefits from the Social Security Administration (SSA), which she asserts is due to a combination of disabilities that includes migraine headaches. As discussed above, at least half of her multiple weekly headaches require that the Veteran nap for multiple hours and that the migraines themselves are triggered by smells, noise, heat, stress, and light, all of which can be found in most work environments. Finally, a July 2009 VA vocational rehabilitation assessment indicated that because the Veteran's headaches would prevent her from working two to three days every week and that her light sensitivity would make driving to work difficult or impossible in many situations, that vocational rehabilitation was not a feasible option. The Board concludes that the objective medical evidence and the Veteran's statements regarding her symptomatology shows disability that more nearly approximates that which warrants the assignment of a 50 percent disability rating. See 38 C.F.R. § 4.7 (2013). As explained in more detail above, the symptoms throughout the Veteran's treatment are consistent. For this reason, staged ratings are not applicable. See Hart, 21 Vet. App. at 505. Therefore, as explained above, the medical evidence supports the Board's conclusion that a 50 percent rating is warranted for the entire period on appeal. A 50 percent rating is the highest rating available under DC 8100. Moreover, no other DC is appropriately applied. The Board has considered alternative DCs relating to neurological conditions, but finds that they are inapplicable in this case. See 38 C.F.R. § 4.124a. In summary, for the reasons and bases set forth above, the Board concludes that a 50 percent rating, but no more, is warranted for the Veteran's migraine headaches for the entire period of this appeal. Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that 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 would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran'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 Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular rating for the service-connected migraine headaches is inadequate. A comparison between the level of severity and symptomatology of the Veteran's migraine headaches with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran reports frequent prostrating and prolonged headaches productive of severe economic inadaptability. The current 50 percent rating under DC 8100 fully contemplates these symptoms. As to the Veteran's reported memory problems, fatigue, nausea, photophobia, and other associated symptoms, the Board finds that these are the type of symptoms that result in the Veteran's severe economic inadaptability and, as such, are contemplated in the current 50 percent rating under DC 8100. Thus, the Veteran's current schedular rating under DC 8100 is adequate to fully compensate her for her headache disability on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Reduction of Right Shoulder Disability In a June 2007 rating action, service connection was established for residuals of right shoulder recurrent rotator cuff tears and multiple surgeries with bursitis, for which a 10 percent evaluation was assigned effective from March 29, 2006. In an October 2007 rating decision, the 10 percent disability rating for the right shoulder was continued, but in an August 2011 SSOC the RO reduced the 10 percent disability rating for the right shoulder to noncompensable, effective September 1, 2011. As discussed above, as the Veteran's reduced right shoulder disability rating did not affect her overall disability rating, the RO was not required to comply with the notice requirements typical in reduction cases. Cf. 38 C.F.R. § 3.344 (2013); see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer, 2 Vet. App. at 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. In this case, the RO reduced the Veteran's right shoulder rating based on September 2007 and May 2011 VA examinations that showed full range of motion without objective evidence of pain. The Veteran contends that the RO's reduction of the right shoulder disability rating from 10 percent to noncompensable, effective September 1, 2011, was improper. The Veteran's right shoulder disability is rated under DCs 5201-5024. In this regard, the Board notes that hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2013). Under DC 5024, tenosynovitis is to be rated on the basis of limitation of motion of the affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5024 (2013). Limitation of motion of the shoulder is rated pursuant to DC 5201. Under DC 5201, limitation of motion to shoulder level (e.g., flexion to 90 degrees) in the major or minor extremity warrants a 20 percent rating. Limitation of motion to midway between side and shoulder level (e.g., flexion between 25 to 90 degrees) in the minor extremity warrants a 20 percent rating and a 30 percent rating in the major extremity. Limitation of motion to 25 degrees from the side in the minor extremity warrants a 30 percent rating a 40 percent rating in the major extremity. 38 C.F.R. § 4.71a, DC 5201 (2013). Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. As noted above, during September 2007 and May 2011 VA examinations the Veteran demonstrated full range of motion without objective evidence of pain. In that regard, the Veteran reported subjective symptoms that included pain; however, there was not objective evidence of pain during examination. Based on consideration of the physical examination findings at the September 2007 and May 2011 VA examinations alone, the criteria for the continued assignment of a 10 percent evaluation for residuals of a right shoulder disability had not been met and a reduction warranted. However, when considering the record as a whole, the Board finds that the evidence does not conclusively show that there has been an actual improvement of the disability. In that regard, an April 2007 VA examination report includes findings of moderate popping of the right shoulder, with pain and decreased range of motion. In addition, private treatment records document multiple steroid injections in the right shoulder to alleviate pain. These injections began around the time of the effective date of the reduced rating and continued thereafter. The injections certainly suggest that treatment providers have found objective evidence of pain or other symptomatology sufficient to warrant the injections. Considering the above and resolving all doubt in the Veteran's favor, the Board finds that it has not been shown that there has been a material improvement of the right shoulder disability. Indeed, the evidence indicates that the Veteran's right shoulder disability has progressed to the point that she requires intermittent steroid injections to treat her symptoms. Accordingly, the Board finds that the competent evidence of record, when considered as a whole, does not show a material and sustained improvement of the right shoulder disability. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that the reduction of the 10 percent disability rating of the right shoulder disability was improper and the 10 percent disability rating is hereby restored. ORDER The appeal regarding the claim of entitlement to an increased rating greater than 10 percent rating prior to September 26, 2007 and greater than 30 percent from September 26, 2007, for exercise-induced asthma is dismissed. Entitlement to an increased rating of 50 percent for migraine headaches is granted for the entire appellate time period, subject to the laws and regulations controlling the award of monetary benefits. Restoration of a 10 percent rating for residuals of right shoulder with recurrent rotator cuff tears and multiple surgeries with bursitis, effective September 1, 2011, is granted. REMAND The Veteran also is seeking entitlement to increased ratings for her low back and right shoulder disabilities, as well as entitlement to TDIU. The Board concludes that a remand is necessary for further development prior to adjudicating these claims. During her August 2013 Board hearing, the Veteran testified credibly that her low back problems had increased in severity since the most recent VA examination. The Veteran also discussed sciatic pain that she associated with the low back disability and her representative indicated a diagnosis of intervertebral disc syndrome. The Court has held that a veteran is entitled to a new VA examination where there is evidence, including her statements, that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In light of the Veteran's contentions, the claim must be remanded in order to afford the Veteran a VA examination to determine the current severity of her low back disability, to include the existence of any related neurological symptoms, such as radiculopathy. The Board also concludes that a new VA examination is necessary to determine the current severity of the Veteran's right shoulder disability. With respect to the Veteran's claim for entitlement to TDIU, the law provides that a total disability rating may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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 or more. See 38 C.F.R. § 4.16(a) (2013). In this case, the Veteran's TDIU claim is inextricably intertwined with the above claims for increased rating. The requested VA examination reports also should include a discussion as to the effects that the Veteran's service-connected disabilities individually or combined have on her occupational functioning. The RO also should take the opportunity to associate with the claims file VA treatment records from March 2009 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA clinical records from March 2009 to the present. 2. After the above evidence is obtained, to the extent available, schedule the Veteran for an appropriate VA examination(s), to include a complete physical examination, in order to determine the current severity of her (a) low back and (b) right shoulder disabilities. The complete claims file must be provided to the examiner for review in conjunction with the examination, and the examiner should note that it has been reviewed. Attention is invited to the Veteran's credible hearing testimony describing the effects and symptoms of her service-connected low back and right shoulder disabilities. All tests deemed necessary should be conducted, and all clinical findings should be reported in detail. For range of motion testing, the examiner is specifically asked to note where in the range pain on motion begins. Moreover, as to the low back disability in particular, the examiner should provide an opinion as to: (i) whether the diagnosed spinal scoliosis was caused or aggravated by her service-connected lumbosacral strain, (ii) the existence of any lower extremity neurological disability and the relationship between any such disability and the Veteran's service-connected low back disability, (iii) whether the Veteran has intervertebral disc syndrome (IVDS), and (iv) what functional limitations the Veteran experiences as a result of her service-connected disabilities and what impact, if any, these have on her occupational functioning. 3. After the above is complete, readjudicate the Veteran's claims. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and her representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs