Citation Nr: 1420439 Decision Date: 05/07/14 Archive Date: 05/21/14 DOCKET NO. 10-36 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for myositis paravertebral muscles and left gluteus medius claimed as joint pain (back disability), prior to May 17, 2012. 2. Entitlement to an increased rating for back disability, currently evaluated as 40 percent disabling. 3. Entitlement to an evaluation in excess of 10 percent for left shoulder impingement syndrome, calcification left supra clavicular region (left shoulder disability), prior to May 17, 2012. 4. Entitlement to an increased disability evaluation for left shoulder disability, currently evaluated at 30 percent disabling. 5. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Samuelson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which continued a 20 percent rating for his myositis paravertebral muscles and left gluteus medius claimed as joints pain, and increased the Veteran's disability rating for left shoulder impingement syndrome, calcification left supra clavicular region (previously DC 5203) from 0 to 10 percent effective March 20, 2009. In a January 2013 rating decision, the RO increased the Veteran's rating for the Veteran's back disability from 20 to 40 percent and for his left shoulder disability from 10 to 30 percent, each effective May 17, 2012. The Board notes that, in addition to reviewing the Veteran's paper claims folder, it has surveyed and considered the contents of his electronic VA file. The additional evidence contained therein is considered part of the constructive record under VA's current guidelines. The Veteran's TDIU claim is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, the preponderance of the evidence shows that his prior to May 17, 2012, his back disability was not productive of forward flexion of 30 degrees of less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome. 2. Since May 17, 2012, even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, the preponderance of the evidence shows that his myositis paravertebral muscles and left gluteus medius claimed as joint pain is not productive of unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome. 4. Since March 20, 2009, the Veteran's back disability has been productive of neurologic impairment of the left lower extremity that results in disability analogous to no more than mild incomplete paralysis of the sciatic nerve. 4. Since October 15, 2010, the Veteran's back disability has been productive of neurologic impairment of the right lower extremity that results in disability analogous to no more than mild incomplete paralysis of the sciatic nerve. 5. The veteran is right-hand dominant; therefore, his left shoulder is his minor extremity. 6. From March 20, 2009, to May 16, 2012, considering the Veteran's pain and corresponding functional impairment, including during flare-ups , his left shoulder disability was manifested by limitation of motion to shoulder level. 6. As of May 17, 2012, the preponderance of the evidence shows the Veteran's left shoulder impingement syndrome, calcification left supra clavicular region is manifested by limitation of motion to 25 degrees from the side. 7. Throughout the appeal, there is no evidence that the Veteran's left shoulder disability was productive of a fibrous union, nonunion or the loss of the head of the left humerus, recurrent dislocation, or impairment of the clavicle, scapula or humerus, to include that his scapula and humerus do not move as one piece. CONCLUSIONS OF LAW 1. Prior to May 17, 2012, the criteria for a disability rating in excess of 20 percent for back disability were not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2013). 2. The criteria for a disability rating in excess of 40 percent for back disability have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2013). 3. Since March 20, 2009, the criteria for a separate 10 percent evaluation for left-sided mild incomplete paralysis of the sciatic nerve have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.124a Diagnostic Code (DC) 8520 (2012). 4. Since October 15, 2010, the criteria for a separate 10 percent evaluation for right-sided mild incomplete paralysis of the sciatic nerve have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.124a Diagnostic Code (DC) 8520 (2012). 5. From March 20, 2009, to May 16, 2012, the criteria for a disability rating of 20 for left shoulder disability were met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5200-03 (2013). 6. The criteria for a disability rating in excess of 30 percent for left shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Code 5200-03 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in the June 2009 letter that was provided before the August 2009 adjudication of the claim. The letter notified the Veteran of the information and evidence needed to substantiate his increased rating claim and the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F. 3d 1311 (Fed. Cir. 2007). Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). VA also has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained. VA provided the Veteran with examinations of the thoracolumbar spine and examinations of the shoulders and arms in July 2009 and May 2012. VA also provided the Veteran with an examination of the peripheral The Board finds that these examinations were adequate because the examiner discussed the Veteran's medical history, described his symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). On evaluating the condition of a service-connected disability, if it is not possible to separate the effects of a service-connected condition from that of a nonservice-connected condition, then 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor; that is, any such ambiguity as to the origin of such signs and symptoms shall be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, if any symptoms cannot be distinguished as between service-connected and nonservice-connected symptomatology, the Board will consider both as service-connected disability. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). If a Veteran appeals a rating decision seeking an increased rating for a disability for which service connection has already been established, such as here, then the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). More recently the Court has held that even in a claim for an increase in the level of an already service-connected disability, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus in deciding this claim, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record. VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of the disability. Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). The Veteran's statements describing the symptoms of his service-connected disability are deemed competent evidence. 38 C.F.R. § 3.159(a)(2) (2013). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. A. Back Disability Under VA's Rating Schedule, disabilities of the spine, are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2013). Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating; unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. Id. The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243 (Intervertebral Disc Syndrome), 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. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2013). If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes, or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). The Veteran seeks an increased disability evaluation for lumbosacral strain (low back disability), rated 20 percent disabling. In a January 2013 rating decision, the RO increased the Veteran's disability rating for his back disability to 40 percent effective May 17, 2012. There are no separate disability ratings in effect for any associated neurologic impairment. Consideration of associated objective neurologic abnormalities is inherent in the evaluation of the claim on appeal. See Note (1) following 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Therefore, as part of the current appeal the Board has considered any separately evaluated objective neurologic abnormalities associated with the back disability. (i) Prior to May 17, 2012 After a careful review of the record, the Board finds that, prior to May 17, 2012, the Veteran's low back disability warrants no more than a 20 percent rating. At the July 2009 VA examination, he reported occasional radiation to his left leg, severe flare-ups weekly that last for hours, the use of a brace, and the ability to walk more than one-quarter mile but less than one mile. The examiner noted no incapacitating episodes of spine disease. The examiner further noted antalgic gait, bilateral spasms, bilateral guarding, bilateral pain with motion, and bilateral tenderness. The Veteran's range of motion study showed flexion of 55 degrees and combined range of motion of 170 degrees. There was objective evidence of pain following repetitive motion. In April 2011, a private treating physician, Dr. Fernando Rojas noted examination of the lumbar spine showed a very stiff spine with pain and flexion of 70 degrees. In sum, after review of the totality of the competent medical evidence on file regarding the Veteran's low back symptomatology, a rating in excess of 20 percent prior to May 17, 2012 is not warranted based on range of motion because the evidence on file does not show symptoms productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine, so as to warrant a 40 percent disability rating. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine; Hart v. Mansfield, 21 Vet. App. 505 (2007). Even considering pain, weakness, and functional impairment, none of the findings would warrant a disability rating in excess of 20 percent based on range of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243; DeLuca v. Brown, 8 Vet. App. 202 (1995). (ii) Since May 17, 2012 After a careful review of the record, the Board finds that, since May 17, 2012, the Veteran's low back disability warrants no more than a 40 percent rating. At the May 2012 VA examination, he reported flare ups upon prolonged standing, stooping, and ambulation. He reported that the flare ups impact the function of his thoracolumbar spine. On examination, initial range of motion was forward flexion of 30 degrees with painful motion beginning at 5 degrees, extension of 20 degrees with painful motion beginning at 5 degrees, right lateral flexion of 20 degrees with painful motion at 5 degrees, left lateral flexion at 15 degrees with painful motion at 5 degrees, and right lateral rotation ending at 15 degrees with painful motion at 5 degrees. After repetitive-use testing with three repetitions, forward flexion was 15 degrees, extension was 15 degrees, right lateral flexion was 15 degrees, left lateral flexion was 15 degrees, right lateral rotation was 20 degrees, and left lateral rotation was 15 degrees. The examiner attributed the decrease in range of motion after repetitive use to less movement than normal and pain on movement. The examiner noted localized tenderness or pain to palpitation at the lumbosacral area at paravertebrals. The examiner also noted guarding and/or muscle spasm, which did not result in abnormal gait or spinal contour. The Veteran uses a cane constantly. The examiner noted that arthritis is documented. The examiner further noted that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. In sum, after review of the totality of the competent medical evidence on file regarding the Veteran's low back symptomatology, a rating in excess of 40 percent is not warranted based on range of motion because the evidence on file does not show symptoms productive unfavorable ankylosis of the entire thoracolumbar spine, so as to warrant a 50 percent disability rating. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine; Hart v. Mansfield, 21 Vet. App. 505 (2007). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243; DeLuca v. Brown, 8 Vet. App. 202 (1995). (iii) Separate Evaluations for Neurological Impairment In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. DC 8520 provides ratings for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a (2013). Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. Id. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The Board notes that in rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In his March 2009 claim, the Veteran contends that he has been suffering from pain in the sciatic nerve. At the July 2009 VA examination, the Veteran noted radiation of electric, lancinating pain to his left leg. The Board finds the Veteran competent and credible to report pain radiating to his lower left leg. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In October 2010, the Veteran was afforded a VA examination of the peripheral nerves. At the examination, the Veteran reported back pain with associated radiation to both legs. He reported symptoms are intermittent and described a bilateral dull pain. The September 2010 electrodiagnostic test showed electrodiagnostic evidence of low lumbar posterior rami irritability on the left side, but no electrodiagnostic evidence of left low lumbar acute radiculopathy. The May 2012 examiner performed a sensory examination in which he noted decreased sensation to light touch in the right and left legs/ankles, and right and left feet/toes. The examination also showed a positive straight leg raising test for the left leg. The Veteran also had other signs or symptoms in the right and left lower extremities due to radiculopathy including mild constant pain, mild intermittent pain, and mild numbness, but no paresthesias and/or dysesthesias. The examiner noted involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve) on the left side. Consequently, the Board finds that a 10 percent evaluation is warranted for mild radiculopathy of left lower extremities, effective March 20, 2009, the date of the claim. Further, the Board finds that a 10 percent evaluation is warranted for mild radiculopathy of the right lower extremity, effective October 15, 2010, the date of the VA examination of the peripheral nerves. However, the next higher 20 percent evaluation is not warranted under Diagnostic Code 8520 for either the left or the right lower extremity radiculopathy as the Veteran's neurological symptoms are not shown to be moderate in degree. See 38 C.F.R. § 4.124a. Similarly, a 40 percent evaluation is not warranted for the right or the left lower extremities since his neurological symptoms are not shown to be moderately severe in degree. The 60 percent evaluation is not warranted for either the left or the right lower extremity radiculopathy as the Veteran's neurological symptoms are not shown to cause severe incomplete paralysis with marked muscle atrophy. There is also no evidence of complete paralysis of the sciatic nerve to warrant assigning an 80 percent disability rating for either lower extremity. Further, no other neurologic abnormalities have been associated with the Veteran's low back disorder (other than of the right and left lower extremities), so additional ratings are not warranted. B. Shoulder Disability Under the laws administered by VA, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, as the medical evidence shows that the Veteran is right-hand dominant, his left shoulder is his minor shoulder for rating purposes. The Veteran's left shoulder disability is currently evaluated at 30 percent disabling effective May 17, 2012 under Diagnostic Code (DC) 5201. Prior to May 17, 2012, the Veteran's left shoulder disability was evaluated as 10 percent disabling under DC 5201. Under Diagnostic Code 5201, assignment of a 20 percent evaluation contemplates limitation of motion of the arm midway between the side and shoulder level. In addition, if arm motion is limited to shoulder level, assignment of a 20 percent disability evaluation is also warranted. To warrant the assignment of a 30 percent evaluation for a disability on the basis of limitation of motion of the minor (left) arm, motion must be limited to 25 degrees from the side. Under Plate I of 38 C.F.R. § 4.71a, normal range of motion of the shoulder encompasses forward elevation (flexion) and abduction to 180 degrees. Also potentially pertinent are the schedular rating criteria of DC 5200, concerning ankylosis of scapulohumeral articulation, DC 5202, regarding other impairments of the humerus, and DC 5203, regarding impairment of the clavicle or scapula. 38 C.F.R. § 4.71a. (i) Prior to May 17, 2012 After a careful review of the record, even considering pain and the DeLuca factors, the Board finds that the Veteran's left shoulder disability warranted no more than the 10 percent rating prior to April 16, 2011. At the July 2009 VA examination, the Veteran stated he had sharp, dull pain that affected his shoulder movement above head angles. The examination revealed left shoulder flexion to 110 degrees and abduction to 100 degrees. The examiner noted no objective evidence of pain following repetitive motion. VA treatment records show the Veteran's objective range of motion, at worst, 100 degrees throughout the appeal period, which is above shoulder level. Therefore a 20 percent rating under Diagnostic Code 5201, and no more is warranted A private treatment record by Dr. Fernando Rojas, dated April 16, 2011 shows a decrease in range of motion of the left shoulder. The treatment record shows active flexion of 90 degrees and active abduction of 90 degrees. The passive range of motion was the same and he had a positive drop arm test. The Board finds that as the Veteran's range of motion is limited to 90 degrees, which is shoulder level, a 20 percent evaluation, and no more, is warranted. (ii) Since May 17, 2012 After a careful review of the record, even considering pain and the DeLuca factors, the Board finds that the Veteran's left shoulder disability warrants no more than the 30 percent rating. The maximum evaluation under Diagnostic Code 5201 is 30 percent. (iv) Other Potentially Applicable Alternative Diagnostic Codes The Board finds that throughout the appeal period, a higher rating is not assignable under any potentially applicable alternative diagnostic codes: DC 5200, DC 5202, and DC 5203. First, the evidence confirms that the Veteran does not have ankylosis, which would warrant consideration under DC 5200. 38 C.F.R. § 4.71a. The July 2009 and May 2012 VA examiners noted no ankylosis. A higher rating is also not assignable under DC 5202, regarding other impairment of the humerus, as there is no evidence of recurrent dislocation of the humerus at the scapulohumeral joint, malunion, fibrous union, nonunion, or the loss of the head of the humerus. The May 2012 VA examiner noted no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. A higher rating is also not assignable under DC 5203 as there is no evidence of malunion, nonunion, or dislocation of the clavicle or scapula throughout the appeal period. (v) Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the discrete manifestations of the Veteran's back and left shoulder disabilities, such pain and functional impairment, as well as neurological impairment, manifestations that are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's back and left shoulder disabilities and referral for consideration of extraschedular rating is not warranted. ORDER Prior to May 17, 2012, a rating in excess of 20 percent for back disability is denied. Since May 17, 2012, a rating in excess of 40 percent for back disability is denied. A separate 10 percent evaluation for left-sided mild incomplete paralysis of the sciatic nerve is granted, effective March 20, 2009, subject to the regulations governing monetary awards. A separate 10 percent evaluation for right-sided mild incomplete paralysis of the sciatic nerve is granted, effective October 15, 2010, subject to the regulations governing monetary awards. Effective March 20, 2009, a 20 percent rating for left shoulder disability is granted, subject to the law and regulations governing payment of monetary benefits. Since May 17, 2012, a rating in excess of 30 percent for left shoulder disability is denied. REMAND When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). During the May 2012 VA examination of the thoracolumbar spine, the examiner noted that the Veteran's thoracolumbar spine (back) conditions impacts his ability to work. The examiner noted the Veteran worked as a police officer until 2002 and retired due to back pain. During the May 2012 VA examination of the shoulder and arms, the examiner noted the Veteran's shoulder condition impacts the Veteran's ability to work as he is limited in his ability for overhead activities. The Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a), effective from October 15, 2010. Therefore, a VA examination is necessary to address whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(a). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding VA or private treatment records pertaining to his service-connected disabilities relevant to the TDIU claim. Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate these with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his myositis paravertebral muscles and left gluteus medius claimed as joints pain and left shoulder impingement syndrome, calcification left supra clavicular region back symptoms and the impact of these conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Then, schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination report. 4. After undertaking any additional development deemed appropriate, the RO should adjudicate the TDIU claim. If the benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to respond before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs