Citation Nr: 1550227 Decision Date: 12/01/15 Archive Date: 12/10/15 DOCKET NO. 12-03 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for right hip disorder, to include as due to an undiagnosed illness. 2. Entitlement to service connection for left hip disorder, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a psychiatric disorder, to include depression, claimed as secondary to service-connected disabilities. 4. Entitlement to service connection for a psychiatric disorder, to include depression, for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C.A. § 1702. 5. Whether the reduction of the disability rating assigned for cervical spine multilevel degenerative joint disease, central canal stenosis, and degenerative disc disease (cervical spine disability) from 30 percent to 10 percent effective February 1, 2012, was proper. 6. Whether the reduction of the disability rating assigned for lumbar spine degenerative disc disease (lumbar spine disability) from 20 percent to 10 percent effective February 1, 2012, was proper. 7. Entitlement to a disability rating in excess of 30 percent for a service-connected cervical spine disability. 8. Entitlement to a disability rating in excess of 10 percent for a service-connected lumbar spine disorder. 9. Entitlement to a disability rating in excess of 20 percent for service-connected right shoulder acromioclavicular degenerative joint disease, tendonitis, and bursitis (right shoulder disability). 10. Entitlement to an initial compensable disability rating for service-connected headaches prior to January 8, 2013. 11. Entitlement to a disability rating in excess of 10 percent for service-connected headaches from January 8, 2013. 12. Entitlement to an initial compensable disability rating for service-connected left upper extremity radiculopathy. 13. Entitlement to an initial disability rating in excess of 10 percent for service-connected left lower extremity radiculopathy. 14. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served in the Nebraska National Guard; he had active duty for training from May 1979 to August 1979 and served on active duty from May 2007 to May 2008, which included service in the Southwest Asia theater of operations. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2011, September 2011, December 2011, March 2012, June 2012, and February 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Although entitlement to increased ratings for the Veteran's service-connected cervical and lumbar spine disorders have not been explicitly identified as separate issues on appeal, the RO effectuated the reductions pursuant to examinations scheduled in conjunction with the Veteran's increased rating claims filed in March 2011, and essentially considered these questions when it reduced the disability ratings. Thus, the issues of entitlement to increased ratings for the Veteran's service-connected cervical and lumbar spine disorders are properly before the Board. The Veteran also perfected an appeal regarding the issue of service connection for a left shoulder disorder. In a July 2015 rating decision, the RO granted service connection for a left shoulder condition, to include rotator cuff syndrome. The AOJ's grant of service connection for this issue constitutes a full award of the benefits sought on appeal. Thus, this matter is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The Board notes that additional evidence has been received since the most recent Supplemental Statements of the Case (SSOCs). In April 2015, the Veteran waived initial review of this evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2014). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing system. The Virtual VA electronic folder contains VA treatment records dated through January 2014. The records are otherwise either irrelevant or duplicates of those in VBMS. Any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The issues of entitlement to service connection for right and left hip disorders, and a psychiatric disorder, to include for treatment purposes only; entitlement to increased ratings for cervical and lumbar spine disabilities, radiculopathy of the left upper and left lower extremities, and headaches; and entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. At the time of the December 2011 rating decision, the evidence did not establish that an improvement in the Veteran's cervical and lumbar spine disorders had actually occurred. 2. For the entire appeal period, the Veteran's right shoulder disorder has resulted in no more than limitation of the arm to the shoulder. CONCLUSIONS OF LAW 1. The criteria for reducing the Veteran's evaluation from 30 percent to 10 percent for cervical spine disorder from February 1, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2014). 2. The criteria for reducing the Veteran's evaluation from 20 percent to 10 percent for lumbar spine disorder, effective from February 1, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2014). 3. The criteria for a disability rating in excess of 20 percent for right shoulder disorder have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5019-5201 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Reduction of Disability Ratings for Cervical and Lumbar Spine Disorders This matter on appeal arises from the Veteran's contention that the RO improperly reduced the disability ratings for his service-connected cervical and lumbar spine disorders. The RO reduced the rating for cervical spine disorder from 30 percent to 10 percent and the rating for lumbar spine disorder from 20 percent to 10 percent - both effective from February 1, 2012. For the reasons discussed below, the Board finds that the rating reductions were improper and that restoration of the 30 percent rating for cervical spine disorder and the 20 percent rating for lumbar spine disorder is warranted. Therefore, a discussion of whether VA complied with its duties to notify and assist the claimant and the procedural requirements set forth in 38 C.F.R. § 3.105(e) is unnecessary. The law provides that, where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Regarding disability ratings in effect for less than five years, as in this case, an adequate reexamination that discloses an improvement in the disorder will warrant reduction in rating. 38 C.F.R. § 3.344(c). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. The Veteran's cervical and lumbar spine disorders have been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, for lumbosacral or cervical strain. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). The General Rating Formula assigns disability ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under this formula, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 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. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, a report of an August 2008 VA examination reflects that range of motion of the Veteran's cervical spine was from 40 degrees of extension to 45 degrees of flexion. Lateral flexion was to 25 degrees bilaterally. Lateral rotation was to 80 degrees bilaterally. Repeated testing revealed mild pain at the extremes, and minimal weakness and fatigue, but no incoordination. X-rays revealed mild degenerative disc disease at the C4-C5, C5-C6, and C6-C7 levels. The Veteran complained of neck and upper thoracic back pain, which he treated occasionally with Ibuprofen. He denied any radiculopathy. He said his symptoms did not interfere with his job, but did interfere with some daytime activities. In a September 2008 rating decision, the RO granted service connection for mechanical cervical strain and assigned an initial 10 percent rating effective May 27, 2008. The report of an October 2008 VA examination reflects that the Veteran complained of fatigue, decreased motion, stiffness, weakness, and pain in his mid-thoracic spine. He described the pain as moderate, dull, and constant. He said he was able to walk more than 1/4 mile, but less than a mile. He said he avoided most activities and denied any radiculopathy. On objective examination, there was no evidence of abnormal spinal curvature or ankylosis. Range of motion of the thoracolumbar spine was from 25 degrees of extension to 80 degrees of forward flexion, although with moderate pain and difficulty. After three repetitions, forward flexion worsened at 45 degrees and stopped at 50 degrees. X-rays of the thoracic spine were normal. In an October 2008 rating decision, the RO granted service connection for mechanical mid thoracic back strain and assigned an initial 20 percent rating effective May 27, 2008. The report of a January 2009 VA examination reflects that the Veteran complained of thoracic and cervical spine pain, which he described as deep, sharp, moderate, and constant. He stated that the pain radiated into his left shoulder and that he had severe flare-ups lasting 1 to 2 days that occurred weekly. On objective examination, there was no evidence of abnormal spinal curvature or ankylosis. Examination of the cervical and thoracic sacrospinalis muscles revealed spasms, guarding, pain with motion, and tenderness. The examiner indicated that the muscle spasms and guarding were severe enough to be responsible for abnormal gait or abnormal spinal contour. Active and passive forward flexion of the cervical spine was limited to 15 degrees with pain at 5 degrees. Active and passive extension was to 10 degrees with pain at 5 degrees. Active and passive lateral flexion was to 15 degrees with pain at 10 degrees bilaterally. Active and passive rotation was to 30 degrees with pain at 10 degrees bilaterally. There was no additional limitation of motion with repetitive testing. Active and passive forward flexion of the thoracolumbar spine was limited to 60 degrees with pain at 40 degrees. Active and passive extension was to 20 degrees with pain at 10 degrees. Active and passive lateral flexion was to 30 degrees with pain at 15 degrees bilaterally. Active and passive lateral rotation was to 30 degrees with pain at 15 degrees bilaterally. There was no additional limitation of motion with repetitive testing. A January 2009 magnetic resonance imaging (MRI) of the cervical spine showed multilevel degenerative joint disease, central canal stenosis, and degenerative disc disease, most pronounced at C4-C5. A MRI of the thoracic spine was normal. The examiner indicated that the Veteran's spine disorders had significant effects on his usual occupation, resulting in being assigned different duties and increased absenteeism. The examiner also indicated that the spine disabilities resulted in problems lifting and carrying and impacted his usual daily activities. In a May 2009 rating decision, the RO recharacterized the Veteran's service-connected cervical spine disability as "cervical spine multilevel degenerative joint disease, central canal stenosis and degenerative disk disease most pronounced at C4-5", and increased the rating to 30 percent effective December 15, 2008. The RO continued the 20 percent rating for mid thoracic back strain. In March 2011, the Veteran filed claims for increased evaluations for his cervical and thoracic spine disorders. He said his conditions had progressively worsened and that he was unemployed and having problems finding a suitable occupation. The report of an April 2011 VA examination reflects that the Veteran reported that he was unemployed due to his back and neck. It was noted that he had decreased mobility, manual dexterity, problems with lifting and carrying, difficulty reaching, and pain. He avoided all activities. He said pain, weakness, and stiffness occurred daily and he had flare-ups with activity. He said he could walk 5-6 blocks and stand for about 15 minutes. He reported left leg and foot burn with pain extending down his left arm and leg. Range of motion of the cervical spine was from 35 degrees of extension to 30 degrees of forward flexion. Lateral flexion was to 20 degrees bilaterally. Lateral rotation was to 70 degrees bilaterally, although with moderate difficulty and moderate pain. With repetitive testing, range of motion was to the same limits with moderate pain, weakness, and fatigue, but no incoordination. Range of motion of the thoracolumbar spine was from 20 degrees of extension to 75 degrees of forward flexion. Lateral flexion was 20 degrees bilaterally, although with moderate difficulty and pain. Lateral rotation testing measurements were not noted. With repetitive testing, the examiner noted worsening at 60 degrees of forward flexion and limitation to 75 degrees with moderate pain, mild to moderate weakness and fatigue, and no incoordination. The diagnoses were mechanical cervical and thoracolumbar strain with radiculopathy involving the left upper and lower extremities, likely secondary to disc disease. The examiner noted that it appeared the Veteran's back and neck were "quite disabling." The examiner opined that it was unlikely that the Veteran could do any extended standing, bending, sitting, walking, lifting, or performing anything even mildly strenuous because of the level of extent of back and neck disease, causing moderate pain. The examiner further opined that these two issues were likely to interfere with physical and sedentary employment due to the level of pain that he had. The report of a June 2011 VA examination reflects that the Veteran complained of persistent pain, achiness, stiffness, tightness, and decreased range of motion. He reported having flare-ups on a weekly basis. He said he was let go from work because he had problems with his spine and that the overall back condition seemed to be worsening. On objective examination, there was no evidence of abnormal spinal curvature, ankylosis, or muscle spasms. There was pain on motion. The examiner indicated that muscle spasm, localized tenderness or guarding were not severe enough to be responsible for abnormal gait or abnormal spinal contour. Forward flexion of the cervical spine was to 35 degrees with some tenderness at 25 degrees. Extension was to 30 degrees with tenderness at 20 degrees. Lateral flexion was to 20 degrees with tenderness at 20 degrees bilaterally. Right rotation was to 70 degrees with tenderness at 60 degrees, and left rotation was to 60 degrees with tenderness at 55 degrees. Forward flexion of the lumbar spine was 75 degrees with some tenderness at 65 degrees. Extension was to 20 degrees with tenderness at 15 degrees. Right lateral flexion was to 25 degrees with tenderness at 20 degrees. Left lateral flexion was to 20 degrees with tenderness at 15 degrees. Right rotation was to 25 degrees with tenderness at 20 degrees. Left rotation was to 20 degrees with tenderness at 15 degrees. Regarding the DeLuca criteria, the examiner indicated that there was some increase in pain without additional weakness, excess fatigability, incoordination, lack of endurance, or additional loss of range of motion with repetitive testing. However, the examiner stated that he could not comment on additional limitation due to repetitive use during flare-ups without resorting to speculation. The examiner indicated that the Veteran's spine disorders impacted his usual occupation and activities of daily life. The examiner noted that the Veteran had problems lifting, carrying, and reaching. The examiner also noted that the Veteran had problems with pain, twisting, high impact activity, and prolonged weight bearing. In September 2011, the RO proposed to reduce the Veteran's cervical spine disability from 30 percent to 10 percent. The RO also recharacterized the Veteran's mechanical mid thoracic back strain as lumbar spine degenerative disc disease and proposed to reduce the evaluation from 20 percent to 10 percent. In a December 2011 rating decision, the RO effectuated the rating reductions, effective February 1, 2012. The RO reduced the disability ratings for the Veteran's service-connected cervical and lumbar spine disorders based on the April 2011 and June 2011 VA examinations. The Board finds, however, that it is unclear whether these examinations demonstrated an actual improvement in the disabilities. Although the April 2011 and June 2011 VA examinations indicated that the Veteran had greater cervical and thoracolumbar spine range of motion than shown on the January 2009 VA examination, the April 2011 VA examiner opined that the Veteran's neck and back disabilities were "quite disabling" and interfered with his ability to perform physical and sedentary work. The examiner opined that it was unlikely that the Veteran could do any extended standing, bending, sitting, walking, lifting, or performing anything even mildly strenuous. Moreover, the April 2011 VA examination showed worsening at 60 degrees of forward flexion of the thoracolumbar spine with repetitive testing, which is consistent with a 20 percent rating. A review of the record also indicates that the June 2011 VA examination was not as thorough as the January 2009 VA examination. The June 2011 VA examiner was unable to provide an opinion regarding any additional limitation due to flare-up or repetitive use without resorting to speculation. As noted above, the Veteran reported having severe weekly flare-ups. Based on his own observations, his back and neck problems had progressively worsened to the point where he was no longer able to work. Based on the foregoing, the Board finds that the evidence did not demonstrate that an improvement in the cervical and thoracolumbar spine disorders had occurred. Under these circumstances, the Board finds that the prior disability ratings assigned for the Veteran's cervical spine and thoracolumbar spine disorders, shall be restored. II. Disability Ratings - Right Shoulder A. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014). A September 2013 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the letter was provided after the initial adjudication of the claim, the claim was readjudicated in a February 2014 SSOC. Thus, there is no prejudice to the Veteran in the timing of the notice. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's service treatment records (STRs) and all identified and available post service treatment records have been obtained. The Veteran was medically evaluated in April 2011 and January 2014. The examiners reviewed the Veteran's claims file, considered his complaints, and conducted appropriate examinations. The examination reports have been reviewed and found to be adequate to make a determination on the claim, as they addressed the Veteran's symptoms in relation to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). In addition, there is no objective evidence indicating that there has been a material change in the severity of the right shoulder disability since the Veteran was last examined. 38 C.F.R. § 3.327(a) (2014). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as in this case, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is a factor to be considered. 38 C.F.R. § 4.59. The Veteran's right shoulder disorder has been evaluated under Diagnostic Code 5019-5201. The disorder has been rated using the criteria for bursitis under Diagnostic Code 5019. Bursitis, in turn, is rated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. A distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. In the instant case, as the Veteran is right-handed, his right shoulder is considered the major upper extremity. See April 2011 VA examination, at 3. Limitation of motion of the arm is evaluated under Diagnostic Code 5201. Pertinent to the major extremity, a 20 percent rating is assigned for limitation of motion of the arm to shoulder level. A 30 percent rating is assigned for limitation of motion of the arm midway between side and shoulder level. A 40 percent rating is assigned for limitation of the arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal range of motion of the shoulder is from 0 to 180 degrees of flexion, from 0 to 180 degrees of abduction, and from 0 to 90 degrees of internal and external rotation. 38 C.F.R. § 4.71, Plate I (2014). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). In this case, an April 2011 VA examination report reflects that the Veteran complained of daily right shoulder pain and difficulty with physical labor. He also reported having weakness, stiffness, and flare-ups for up to three days. On objective physical examination, forward flexion of the right shoulder was to 120 degrees. Abduction was to 95 degrees. External and internal rotation was to 80 and 90 degrees, respectively. Moderate pain was noted. After repetitive testing, forward flexion was to 95 degrees with pain beginning at 45 degrees. The examiner indicated that there was moderate pain, moderate weakness and fatigue, but no incoordination. X-rays revealed mild right acromioclavicular degenerative joint disease. The examiner indicated that the right shoulder and elbow disabilities interfered with lifting, dexterity, raising the arm, repetitive use, and anything strenuous, because of the level of pain he exhibited. The examiner opined that it was very likely that the right elbow and shoulder would interfere with physical (and less likely sedentary) employment. The report of a January 2014 VA examination reflects that the Veteran complained of bilateral shoulder pain, left greater than right. He said that he had occasional pain in the right shoulder with heavy use, but that it was nothing like the left shoulder. He reported that his right shoulder ached intermittently later in the day. On objective examination, forward flexion was limited to 155 degrees with pain at 140 degrees. Abduction was limited to 140 degrees with pain at 120 degrees. After repetitive testing, there were no changes in flexion and abduction. The examiner indicated that functional impairment involved less movement than normal and pain on motion. The right shoulder also had localized tenderness and pain on palpation, but no guarding and no loss of muscle strength. Tests for rotator cuff conditions were negative on the right side. A history of mechanic symptoms (clicking, catching, etc.) was noted, but no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. The diagnosis was right shoulder acromioclavicular degenerative joint disease, tendonitis, and bursitis. There was no evidence of instability. The examiner indicated that the right shoulder got sore once in a while, but did not really limit his job. VA outpatient treatment records during the relevant time period note that the Veteran had bilateral shoulder pain and that range of motion was limited by pain; however, the majority of treatment was for the left shoulder. See, e.g., November 2013 VA outpatient records (Virtual VA, CAPRI records received on January 3, 2014). Based on the foregoing, the Board finds that a rating in excess of 20 percent for the Veteran's right shoulder disorder is not warranted. To warrant a 30 percent rating, the evidence must show that the right arm was limited to midway between the side and shoulder level, i.e., 45 degrees. At worst, forward flexion was limited to 95 degrees after repetitive testing during the April 2011 VA examination. Abduction was also limited to 95 degrees during the April 2011 VA examination. Although the April 2011 VA examiner indicated that there was evidence of pain beginning at 45 degrees after repetitive testing, the Veteran was able to move his arm to the shoulder level. Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Moreover, the January 2014 VA examination indicates even less impairment with pain beginning above the shoulder on forward flexion and abduction. In sum, the evidence does not show additional functional loss beyond that contemplated by the 20 percent evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206. As such, an evaluation in excess of 20 percent is not warranted. The Board has also considered other potentially applicable diagnostic codes. Regarding the right shoulder, the Veteran does not have ankylosis, impairment of the clavicle or scapula, or impairment of the humerus. Accordingly, a higher rating or separate compensable rating under Diagnostic Code 5200, 5202, or 5203, is not warranted for the right shoulder. The Board has considered the Veteran's statements regarding his right shoulder pain, limitation of motion, weakness, and stiffness, which are both competent and credible, but such non-specific pleadings do not provide a basis for a higher evaluation. In this case, the Board finds the objective medical findings by skilled professionals are more persuasive which, as indicated above, do not support a rating in excess of 20 percent for right shoulder disability. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) for the assignment of a higher rating on an extra-schedular basis. 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's right shoulder disability primarily involves pain and limited range of motion. These complaints have been contemplated in evaluating this disability. Diagnostic Code 5201 specifically contemplates limitation of motion and entitlement to separate ratings based on instability have been considered, along with additional functional impairment due to symptoms such as pain and fatigability. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206. Furthermore, Diagnostic Code 5201 provides for higher ratings for more severe limitation of motion and functional impairment. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected right shoulder disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER The 30 percent disability rating for cervical spine disorder is restored, effective February 1, 2012. The 20 percent disability rating for lumbar spine disorder is restored, effective February 1, 2012. Entitlement to a rating in excess of 20 percent for right shoulder disorder is denied. REMAND I. Service Connection for Right and Left Hip Disorders The claims for service connection for right and left hip disabilities are being remanded for a VA examination, to include consideration of whether the Veteran has a qualifying chronic hip disorder resulting from an undiagnosed illness. As noted above, the Veteran served in Southwest Asia during the Persian Gulf War. As such, the Gulf War provisions apply to his claim. See 38 U.S.C.A. § 1117 (West 2014); 38 C.F.R. § 3.317 (2014). The Veteran's STRs do not show any complaints, treatment, or diagnoses related to his hips. At his August 2008 post-deployment health assessment, he had multiple complaints, including back and elbow pain, but reported no problems with his hips. During an August 2008 VA general medical examination, the Veteran did not report any problems with his hips. A July 2009 VA neurosurgery clinic note indicates that the Veteran complained of right hip pain. See Virtual VA, CAPRI records received on January 11, 2012, pg. 141. In September 2011, the Veteran filed a claim for service connection for a bilateral hip condition, noting that he had trouble with his left hip and leg. He stated that his left side went completely numb and he was not able to stand on it at times. The Board notes that service connection was granted for left lower extremity radiculopathy in a September 2011 rating decision. In this case, the Veteran has not been afforded a VA examination in connection with his right and left hip claims. Therefore, pursuant to the duty to assist, the Board finds that a remand is needed. See 38 C.F.R. § 3.159(c)(4). II. Service Connection for a Psychiatric Disorder, to include for the Purposes of Establishing Eligibility for Treatment At his August 3, 2008 post-deployment health assessment, the Veteran reported experiencing depression. An August 22, 2008 VA mental health clinic note indicates he was referred by primary care with reports of potential posttraumatic stress disorder (PTSD). He reported having some marital problems and was interested in counseling. The diagnosis was mild adjustment disorder. The report of an August 2008 VA general medical examination notes that the Veteran did not have a history of depression or other psychiatric problems. In May 2012, the Veteran filed a claim for service connection for a psychiatric disorder. He indicated that he had depression or other acquired psychiatric disorder secondary to the chronic pain from service-connected disabilities. The report of a June 2012 VA examination reflects that the Veteran was within the minimal range of symptom reporting and the examiner opined that he did not meet the criteria for a psychiatric disorder. Service connection for a psychiatric disorder, to include for purposes of establishing eligibility for treatment, was denied in July 2012. The Veteran appealed and has continued to argue that he has had psychiatric symptoms since service. See, e.g., August 2012 notice of disagreement (NOD), November 2012 VA Form 9. Given the Veteran's documented complaints in service, diagnosis of an adjustment disorder in August 2008, and ongoing complaints, the Board finds that another VA examination is needed for further clarification. Additionally, although the Veteran was provided with notice of the elements and evidence needed to establish service connection for compensation purposes, he has not been provided with adequate notice of the criteria for service connection for the purpose of establishing eligibility to treatment only, under 38 C.F.R.§ 1702. On remand, corrective notice should be sent to the Veteran and his representative. Increased Ratings - Cervical and Lumbar Spine Disorders, Radiculopathy of the Left Upper and Left Lower Extremities, and Headaches A remand is required to obtain another VA examination for the Veteran's cervical and lumbar spine disorders. A VA examination was last conducted in June 2011, over four years ago. Since then, the Veteran and his representative have repeatedly asserted that these conditions have worsened. See e.g., October 2011 statement, December 2011 NOD, and April 2012 correspondence. Therefore, the Board finds that an additional VA examination is needed to ascertain the current severity and manifestations of the Veteran's service-connected cervical and lumbar spine disorders. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Because the Veteran's service-connected radiculopathy of the left upper and left extremities and headaches are associated with the Veteran's service-connected cervical and lumbar spine disorders, the Board finds that these issues must also be remanded for current findings. Finally, in conjunction with the Veteran's claim for TDIU, the Board finds that a social and industrial survey is needed to ascertain the current impact of the Veteran's disabilities on his ability to work. In addition, on remand, any outstanding VA treatment records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with corrective notice with regard to his claim for service connection for a psychiatric disorder for treatment purposes only, containing notice of the criteria necessary to substantiate a claim under 38 U.S.C.A. § 1702. 2. Contact the appropriate VA Medical Center, to include the Omaha VA Nebraska-Western Iowa Health Care System, and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed right and left hip disabilities. The claims folder should be made available for review by the examiner. Any indicated tests and studies must be accomplished. An explanation for all opinions expressed must be provided. After examining the Veteran, and considering his pertinent medical history and competent lay statements regarding observable symptomatology, the examiner should respond to the following: i) State whether any of the Veteran's right and left hip complaints are attributable to a known clinical diagnosis. With respect to each identified disorder, is it at least as likely as not (a 50 percent probability or greater) that the disorder manifested in service or is otherwise related to service? ii) Alternatively, if any of the Veteran's right and left hip complaints cannot be attributed to a known clinical diagnosis, the examiner must indicate whether such symptoms represents an objective indication of chronic disability resulting from undiagnosed illness related to the Veteran's Persian Gulf War service, or a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms. If the Veteran's right and left hip complaints are found to represent an objective indication of chronic disability resulting from either an undiagnosed illness or a chronic multisymptom illness, the examiner should also describe the extent to which the illness has manifested. 4. After obtaining any identified and outstanding records, schedule the Veteran for a VA examination to determine the nature and etiology of any current psychiatric disorder. The claims folder should be made available for review by the examiner. Any indicated tests and studies must be accomplished. All clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran's own history and contentions. The examiner is requested to identify all current psychiatric disorders. He or she should specifically indicate whether the Veteran has an adjustment disorder. If any previously diagnosed psychiatric disorder is not found on examination, address the prior diagnoses of record. For each diagnosis identified, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the disorder manifested in service or is otherwise causally or etiologically related to his military service. The examiner should also indicate whether any current psychiatric disorder is caused or aggravated by any service-connected disability or combination thereof. For any identified psychiatric disorder not found to be incurred in or related to service or a service-connected disability, the examiner should state whether the disorder manifested within two years of separating from active duty service. Finally, if any of the Veteran's psychiatric complaints cannot be attributed to a known clinical diagnosis, the examiner should indicate whether such symptoms represent an objective indication of chronic disability resulting from undiagnosed illness related to the Veteran's Persian Gulf War service, or a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms. If the Veteran's psychiatric complaints are found to represent an objective indication of chronic disability resulting from either an undiagnosed illness or a chronic multisymptom illness, the examiner should also describe the extent to which the illness has manifested. 5. After obtaining any identified and outstanding records, provide the Veteran a VA examination to ascertain the current severity, and manifestations of his service-connected cervical and lumbar spine disorders and radiculopathy of the left upper and lower extremities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. The examiner should describe the Veteran's symptoms and note the functional impairment of the Veteran's service-connected cervical and lumbar spine disorders, to include radiculopathy of the left upper and left lower extremities. The appropriate Disability Benefit Questionnaire (DBQ) should be utilized. The examiner must also report any associated neurological complaints or findings attributable to the Veteran's service-connected cervical and lumbar spine disorders, including any noted during nerve conduction and/or electromyography studies. The examiner is asked to identify all nerve(s) affected by the service-connected cervical and lumbar spine disorders, to specifically include the Veteran's radiculopathy of the left upper and left lower extremities, and describe the degree of paralysis as mild, moderate, or severe. The examiner is also asked to comment on the impact of the Veteran's cervical and lumbar spine disorders and radiculopathy of the left upper and left lower extremities on his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 6. After obtaining any identified and outstanding records, provide the Veteran a VA examination to ascertain the current severity, and manifestations of his service-connected headaches. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. The examiner should describe the Veteran's symptoms and note the functional impairment of the Veteran's service-connected headaches. The appropriate Disability Benefit Questionnaire (DBQ) should be utilized. The examiner should specifically comment as to frequency and severity of the Veteran's service-connected headaches, to include whether such headaches are productive of characteristic prostrating attacks averaging one in two months over the last several months, characteristic prostrating attacks occurring on an average once a month over the last several months, or very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. The examiner is also asked to comment on the impact of the Veteran's headaches on his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 7. After obtaining any identified and outstanding records and after development and adjudication of the Veteran's pending service connection and increased rating claims, a social and industrial survey must be obtained to ascertain the Veteran's social interactions and work or work-like functioning in recent years. The evidence of record must be made available to and reviewed by the individual conducting the survey. The report from this survey must include comments on the Veteran's day-to-day functioning and the degree of social and industrial impairment that the Veteran experiences as a result of his service-connected disabilities. The surveyor should consider the Veteran's education and occupational experience, irrespective of age and any nonservice-connected disorders. The surveyor should address the functional effects of each of the service-connected disabilities, in conjunction, so that the Board may make a determination of unemployability. The surveyor is not limited to the foregoing instructions, and may seek initial or additional development in any survey area that would shed more light on the Veteran's ability to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 8. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 9. Review each examination report to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 10. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claim remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs