Citation Nr: 1801164 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-13 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to a disability rating in excess of 20 percent for right shoulder impingement. 3. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD), with persistent depression. 4. Entitlement to a disability rating in excess of 10 percent for cervical spine degenerative arthritis, mild, at C5-6. 5. Entitlement to a disability rating in excess of 10 percent for low back strain with myofascial pain. 6. Entitlement to an initial disability rating in excess of 30 percent for migraine headaches. 7. Entitlement to a total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty during the Gulf War Era from April 2005 to September 2005, from July 2006 to October 2007 and from September 2010 to October 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned at a September 2017 videoconference hearing. The hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to an initial rating in excess of 50 percent for PTSD with persistent depression, entitlement to a disability rating in excess of 20 percent for right shoulder impingement, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The Veteran's bilateral tinnitus is related to in-service noise exposure. 2. For the period on appeal, the Veteran's cervical spine disability has been manifested by forward flexion of the cervical spine of no less than 35 degrees, even with consideration of pain and functional impairment; there is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and there is no evidence of intervertebral disc syndrome, associated neurological deficit or ankylosis. 3. For the period on appeal, the Veteran's low back disability has been manifested by forward flexion of the thoracolumbar spine of no less than 70 degrees, even with consideration of pain and functional impairment; there is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and there is no evidence of intervertebral disc syndrome, associated neurological deficit or ankylosis. 4. For the period on appeal, the Veteran's migraine headaches have more nearly approximated symptoms consistent with very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. Bilateral tinnitus was incurred in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for a rating in excess of 10 percent for cervical spine degenerative arthritis, mild, at C5-6, have not been met. 38 U.S.C § 1155 (2012); 38 C.F.R §§ 4.1-4.7, 4.71, 4.71a, Diagnostic Codes 5235-5237 (2017). 3. The criteria for a rating in excess of 10 percent for low back strain with myofascial pain have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R §§ 4.1-4.7, 4.71, 4.71a, Diagnostic Codes 5235-5237 (2017). 4. For the period on appeal, the criteria for an initial 50 percent disability rating, but no higher, for migraine headaches, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C. § 5103A (a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for service connection for bilateral tinnitus. As to the remaining claims decided herein, VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in February 2012. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has indicated no such records and all pertinent records have been obtained. Service Connection for Tinnitus Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Those "chronic" disorders include tinnitus. In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Section 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA deems tinnitus as an organic disease of the nervous system. See VA Under Secretary for Health Memorandum (October 1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that he has experienced reoccurring ringing in the ears after being exposed to improvised explosive device (IED) blasts and other acoustic trauma during his deployment to Iraq from 2006-2007. He also contends that he was exposed to noise from IED blasts and other acoustic trauma during his deployment to Afghanistan from 2010-2011, and that he has experienced consistent ringing in the ears since that time. See May 2014 VA Form 9 and September 2015 Statement of Accredited Representative in Appealed Case. Department of Defense service treatment excerpts note that the Veteran was exposed to an IED blast on November 8, 2010. The Veteran was not injured, confused, or dazed by the blast, but he did report experiencing ringing in the ear after the blast. VA treatment records from the VA Medical Center in Portland show complaints of tinnitus as early as January 2012, less than a year after his discharge from his last period of active duty in October 2011. The Veteran was afforded a VA audiological examination in November 2012. He was assessed with normal hearing bilaterally and the examiner noted that his cochlear function was normal. The Veteran complained of recurrent tinnitus since 2011, and reported noise exposure in service from IEDs, vehicle noise, radio noise, ECMs, weapons fire, artillery, aircraft and generator noise. He also reported pre-military noise exposure from hunting and post-military noise exposure from occasional hunting, with hearing protection, and occasional use of power tools, with hearing protection. The examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The only rationale given was that the Veteran had normal hearing and normal cochlear function, at least at the level of the outer hair cells. The Board notes that there is no clinical or other test that can confirm the presence or absence of tinnitus. A diagnosis usually is based on the lay report of the patient. Further, the Veteran is fully competent to identify and report any instances of tinnitus he may have experienced. See Jandreau, 492 F.3d 1372; 38 C.F.R. § 3.159(a)(2). As noted above, the Veteran reported ringing in the ears following documented acoustic trauma in service in November 2010. There is no exit examination to either prove or disprove continued tinnitus at the time of his separation. The absence of contemporaneous medical documentation, alone, does not discredit his lay testimony. Davidson, 581 F.3d 1313. Furthermore, he reported tinnitus during VA treatment in 2011, less than a year after his discharge and he has reported recurrent tinnitus since his last period of service in statements during the appeal and at his September 2017 Board hearing. The Board finds no basis on which to doubt the Veteran's credibility. Hence, the weight of the evidence is in his favor both on a presumptive and direct basis, and service connection for tinnitus is warranted. 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a). General Legal Criteria for Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In both initial rating claims and increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Cervical Spine and Low Back Disabilities Under the General Rating Formula for Diseases and Injuries of the Spine, 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 injury or disease, a 10 percent evaluation is warranted 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 evaluation is warranted when there is 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 evaluation is warranted when there is forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2017). Note (1) permits the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. 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 cervical spine is 340 degrees and 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. Each range of motion measurement should be rounded to the nearest five degrees. See Plate V, 38 C.F.R. § 4.71 and 38 C.F.R. § 4.71a, Notes (2) and (4). 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. 38 C.F.R. § 4.71a, Note (3). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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 dysphasia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Note (5). Diagnostic Code 5243 for intervertebral disc syndrome is rated either 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 38 C.F.R. § 4.25. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. A 10 percent rating for intervertebral disc syndrome requires incapacitating episodes having a total duration of one week but less than 2 weeks during the past 12 months. The 20 percent rating for intervertebral disc syndrome, requires incapacitating episodes of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is warranted. Finally, with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 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. Analysis In a December 2012 rating decision, the RO granted service connection for cervical spine degenerative arthritis, mild, at C5-6, and chronic low back strain with myofascial pain. Ten percent evaluations were assigned for each disability, effective October 21, 2011, based on the results of March 2012 VA examinations. In April 2014, the Veteran filed a claim for individual unemployability, indicating that he was unable to work, due in part, to his service-connected low back and cervical spine disabilities. In response to his claim, the Veteran was afforded VA spine examinations in October 2014. During range of motion (ROM) testing, forward flexion of the cervical spine was to 45 degrees, with pain at 35 degrees. Extension was to 45 degrees, with pain at 30 degrees. Right lateral flexion was to 45 degrees with no pain, and left lateral flexion was to 45 degrees with pain at 30 degrees. Right lateral rotation was to 80 degrees with no pain, and left lateral rotation was to 80 degrees with pain at 70 degrees. There was no additional limitation in ROM following repetitive use testing, but there was functional impairment of the cervical spine, in the form of pain on movement. There was tenderness or pain on palpation of the cervical spine and muscle spasm, but there was no evidence of muscle spasm resulting in abnormal gait or abnormal spinal contour. Muscle strength testing, reflex examination and sensory examination were all normal, and there was no evidence of radiculopathy or ankylosis of the cervical spine, and no other neurological abnormalities. In addition, there was no intervertebral disc syndrome (IVDS) and no report of incapacitating episodes due to the cervical spine disability. Forward flexion of the lumbar spine was to 80 degrees, with pain at 70 degrees. Extension was to 30 degrees, with pain at 25 degrees. Right lateral flexion was to 25 degrees with pain at 20 degrees, and left lateral flexion was to 25 degrees with pain at 20 degrees. Right lateral rotation was to 30 degrees with pain at 25 degrees, and left lateral rotation was to 30 degrees with pain at 25 degrees. There was no additional limitation in ROM following repetitive use testing, but there was functional impairment of the lumbar spine, in the form of less movement than normal and pain on movement. There was tenderness on palpation of the lumbar spine, specifically noted as diffuse lumbosacral tenderness, and muscle spasm and guarding of the lumbar spine, but there was no evidence of muscle spasm resulting in abnormal gait or abnormal spinal contour. Muscle strength testing, reflex examination and sensory examination were all normal, straight leg raising test was negative, and there was no evidence of radiculopathy or ankylosis of the cervical spine, and no other neurological abnormalities. In addition, there was no intervertebral disc syndrome (IVDS) and no report of incapacitating episodes due to the lumbar spine disability. The evidence shows that during this period, the Veteran demonstrated forward flexion of the thoracolumbar spine well beyond 60 degrees and forward flexion of the cervical spine beyond 30 degrees and that he had a combined range of motion in excess of 120 degrees for the thoracolumbar spine, and in excess of 170 degrees for the cervical spine, even with consideration of pain and functional impairment. In this regard, the only functional impairment of the cervical spine noted on examination in October 2014 was pain on movement, noted and accounted for in the ROM findings. Furthermore, the only functional impairment of the lumbar spine was less movement than normal and pain on movement, also noted and accounted for in the ROM findings. Furthermore, there was no evidence on examination in October 2014 of muscle spasm or guarding, resulting in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis of the cervical or lumbar spines, nor was there evidence of any neurological deficits. Accordingly, the Board finds that the evidence required for a 20 percent or higher evaluation for the cervical spine disability or the lumbar spine disability under the general rating formula is not shown. The Board also finds that a higher rating is not available under the formula for rating intervertebral disc syndrome based on incapacitating episodes. In this regard, the Veteran has denied any incapacitating episodes due to neck or back pain on VA examination, and there is no documentary evidence of any incapacitating episodes or physician-prescribed bed rest for the Veteran's cervical spine or lumbar spine disabilities during the appeal period. Therefore, a rating in excess of 10 percent under Diagnostic Code 5243 based on incapacitating episodes is not warranted for the cervical spine or lumbar spine disability. The Board also finds that a rating in excess of 10 percent is not warranted for the cervical and lumbar spine disabilities at any time during the appeal under DeLuca. The Veteran has complained of flare-ups of back and neck pain, which cause decreased ROM. The October 2014 VA examiner noted that there was functional impairment due to back and neck pain in the form of less movement than normal and pain on movement. Nevertheless, there was no additional loss of motion found following repetitive use testing for the cervical spine or lumbar spine. The examiner noted that he could not give an opinion on additional functional limitations of the neck and back during flare-ups because the Veteran was not experiencing flare-ups at the time of the examination. However, the Veteran himself only reported pain and less movement than normal during flare-ups. These symptoms are already accounted for in the disability ratings assigned for decreased range of motion. Painful motion can equate to limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes that it is evident that the Veteran's functional impairment was already considered with the assignment of the current 10 percent ratings, which were essentially assigned for painful and limited motion. The Board also notes that the Veteran has not reported incapacitating episodes due to neck or back pain and he denied the use of any assistive device for his cervical spine or lumbar spine disability on examination in October 2014. There is no other evidence of functional impairment due to the Veteran's cervical spine or lumbar spine disability at any time during the appeal. A higher rating would therefore not be warranted on the basis of functional impairment. Cf. DeLuca, 38 C.F.R. §§ 4.40, 4.45. The Veteran is competent to report the symptoms of his cervical spine and lumbar spine disabilities. His complaints are credible. The Veteran's complaints have been considered in the above noted evidence; however, evaluations for VA purposes have not shown the severity required for a higher schedular rating, as discussed above. To the extent that the Veteran argues or suggests that the clinical data supports increased disability ratings or that the rating criteria should not be employed, he is not competent to make such an assertion. See Espiritu v. Derwinski, 2 Vet. App. at 494. VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involve the examination of clinical data gathered by competent medical professionals. See Massey v. Brown, 7 Vet. App. at 208. After examining all the evidence, the Board concludes that the weight of the evidence is against a rating in excess of 10 percent for the cervical spine disability or a rating in excess of 10 percent for the low back disability at any time during the appeal. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2017). Consideration under 38 C.F.R. § 3.321(b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Migraine Headaches The RO has evaluated the Veteran's headaches as 30 percent disabling, under 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraines. The 30 percent evaluation is effective March 28, 2016, the date of the Veteran's claim for service connection for migraine headaches. See May 2016 rating decision. In December 2016, the Veteran filed a claim for an increased rating for his migraine headaches. Under Diagnostic Code 8100, a rating of 30 percent is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating, the maximum schedular rating available, is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). In December 2016, the Veteran submitted a log of his headaches. He reported 7 headaches in September 2016, 6 of which were migraines, and only 1 that was debilitating; 9 migraines in October 2016, 2 of which were debilitating; 8 migraines in November 2016, 3 of which were debilitating; and 4 migraines in December 2016. On VA examination in December 2016, he reported on average about 3 headaches a week that lasted 3-4 hours to a day or so. He had not been prescribed any medication for his headaches and was not on any suppressive therapy. He was taking over-the-counter Naproxen for his headaches, as needed. It was noted that he experienced characteristic prostrating attacks of migraine/non-migraine headache pain once a month, but no very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner also noted that the Veteran may not be able to work on days he was experiencing prostrating headaches, but no other functional impact was identified. In a March 2017 Decision Review Officer (DRO) Informal Conference Report, the Veteran argued that his migraine headaches were more frequently prostrating than reported by the December 2016 examiner. He reported that his primary care physician placed him on Propranolol in February 2017 to prevent his headaches. He also alleged that he was not employable in large part because of his headaches, which caused him to take Naproxen and go to a dark, quiet room to lie down for several hours and/or the remainder of the day for each prostrating headache, and after a migraine he experienced difficulties with thinking and concentrating, low energy/fatigue and a sense of numbness. He claimed that the frequency and severity of his headaches was a factor in his decision to stop pursuing college coursework. In a second headache log, submitted in March 2017, the Veteran again reported 7 headaches in September 2016, 6 of which were migraines, 9 migraines in October 2016, 8 migraines in November 2016, and 4 migraines in December 2016. He also reported 11 migraines in February 2017 and 1 in March 2017. He noted (with an X) that 7 times in September 2016, 9 times in October 2016, 8 times in November 2016, 4 times in December 2016, 11 times in February 2017 and 1 time in March 2017, his migraine headache was of such severity that his symptoms caused him to lie down in a dark, quiet environment for several hours and/or the rest of that day. An April 2017 VA opinion was submitted to assess the additional evidence, including the headache log submitted in March 2017. The examiner opined that the Veteran experienced prostrating attacks of headache pain up to two times per month, but he did not experience very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner concluded that the Veteran is able to work, albeit it in a loosely supervised setting with a flexible schedule, preferably with limited public contact. He also noted that the Veteran was being treated with prophylactic medication and recommended a review in 6-12 months to reassess the Veteran's migraines. The Board finds that the Veteran's migraine headache disability more nearly approximates the 50 percent rating criteria for the period on appeal. In this regard, contrary to what the April 2017 VA examiner reported, the Veteran has submitted evidence, in the form of headache logs, documenting migraine headaches that occur on average more than 5 times a month and require bedrest for several hours a day or the entire day to relieve. Resolving reasonable doubt in the Veteran's favor, the Board finds that these symptoms are comparable to very frequent, prostrating and prolonged attacks of migraine headache pain. Furthermore, the Board finds that the Veteran's reports that after a migraine he experienced difficulties with thinking and concentrating, low energy/fatigue and a sense of numbness support his contention that his headaches are productive of severe economic inadaptability. Moreover, the Board notes that it is unlikely that the Veteran is able to work while experiencing a prostrating headache, which requires bedrest, and if he is having such a severe headache more than 5 times per month, and missing work that many times as a result, he likely experiences severe economic inadaptability as a result. In this regard, the December 2016 VA examiner opined that the Veteran may not be able to work on days he was experiencing prostrating headaches. Accordingly, the Board finds that a 50 percent rating, the maximum schedular rating, is warranted for the duration of the appeal period. Consideration under 38 C.F.R. § 3.321(b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). ORDER Service connection for tinnitus is granted. A rating in excess of 10 percent for cervical spine degenerative arthritis, mild, at C5-6, is denied. A rating in excess of 10 percent for low back strain with myofascial pain is denied. An initial 50 percent rating, but no higher, for migraine headaches is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND Right Shoulder Disability In a December 2012 rating decision, the RO granted service connection for right shoulder impingement. A noncompensable (0%) evaluation was assigned, under Diagnostic Code (DC) 5201, based on the results of a March 2012 VA examination. In April 2014, the Veteran filed a claim for individual unemployability, indicating that he was unable to work, due in part, to his service-connected right shoulder disability. In response to his claim for an increased rating, the Veteran was afforded another VA shoulder examination in October 2014. On range of motion (ROM) testing, forward flexion was to 150 degrees, abduction was to 140 degrees, external rotation was to 70 degrees and internal rotation was to 65 degrees. The examiner noted that there was pain on examination, which caused functional loss, but he failed to note at which point the Veteran experienced pain during ROM testing. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful motion can equate to limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Accordingly, the Board finds that the October 2014 examination results are inadequate for rating purposes, and a new VA examination is warranted to ascertain the current severity of the Veteran's service-connected right shoulder impingement disability. PTSD with Persistent Depression The most recent VA examination in connection with the Veteran's claim for an increased rating for PTSD with persistent depression was held in October 2014. The Veteran reported in his June 2017 VA Form 9 that this disability was worse since that examination was held. See June 2017 VA Form 9. The Veteran is entitled to a new VA examination where there is evidence, including his statements, that his condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Given the evidence of possible increased symptomatology since the Veteran's last VA examination, the Board finds that a new VA examination is warranted to ascertain the current severity of the Veteran's service-connected PTSD with persistent depression. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). TDIU The Veteran's TDIU claim is inextricably intertwined with the issues of entitlement to an increased rating for right shoulder impingement and entitlement to an increased rating for PTSD with persistent depression, and cannot be adjudicated at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The appellant is advised that it is his responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. See 38 C.F.R. §§ 3.158 and 3.655 (2017). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, schedule the Veteran for a new VA examination to determine the current severity of his service-connected right shoulder impingement. The claims folder, including a copy of this remand, should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. The examiner should indicate the nature and severity of all manifestations of the right shoulder disability. Any testing deemed necessary should be performed, including X-rays and appropriate range of motion studies. The examiner is asked to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing (if applicable) and also test the range of motion of the left shoulder. If the examiner is unable to conduct the requested testing, or concludes the requested testing is not necessary, (s)he should clearly explain why that is so. Correia v. McDonald, 28 Vet. App. 158 (2016). In reporting the results of range of motion testing, the examiner should specifically identify the points, if any, at which pain begins. The examiner should determine whether the right shoulder disability is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare ups. The examiner should also note any deformity, nonunion, malunion or history of dislocation of the shoulder. The examiner must also provide an opinion as to the severity of the Veteran's right shoulder symptoms and how those symptoms impact the Veteran's occupational functioning. 3. Then, schedule the Veteran for a new VA examination to determine the current severity of his service-connected PTSD with persistent depression. The claims folder, including a copy of this remand, should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed The examiner should specifically provide the following: (a) The examiner should identify the existence and severity of all current manifestations of the Veteran's service-connected PTSD with persistent depression. (b) The examiner should describe the impact of the Veteran's PTSD with persistent depression on his occupational and social functioning. The examiner should also comment on functional impairment caused solely by the Veteran's service-connected PTSD with persistent depression. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, the examiner should provide a rationale for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 4. After completion of the above and any other development deemed necessary, review the expanded record, and readjudicate the Veteran's claims for increased ratings and TDIU. If any benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case and provide the appropriate opportunity to respond, before returning the case to the Board, if otherwise in order. 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. §§ 5109B, 7112 (2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs