Citation Nr: 18124635 Decision Date: 08/07/18 Archive Date: 08/07/18 DOCKET NO. 17-22 822 DATE: August 7, 2018 ORDER Entitlement to an increased disability rating in excess of 20 percent prior to May 25, 2018, and in excess of 30 percent from May 25, 2018, for bursitis of the left shoulder is denied. Entitlement to an increased disability rating in excess of 20 percent for bursitis of the right shoulder is denied. Entitlement to an initial increased disability rating in excess of 30 percent from February 24, 2014, and 50 percent from January 18, 2017, for depressive disorder with anxiety. REMANDED Entitlement to an increased disability rating in excess of 10 percent for bursitis of the right knee is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to May 25, 2018, the Veteran’s left (minor) shoulder disability was manifested by limitation of the arm of greater than 25 degrees from the side. 2. From May 25, 2018, the Veteran’s left (minor) shoulder disability was manifested by limitation of the arm of approximately 25 degrees from the side, and was not manifested by ankylosis, fibrous union of the humerus, nonunion of the major humerus (false flail joint), or loss of head of the major humerus (flail shoulder). 3. The Veteran’s right (major) shoulder impingement syndrome was manifested by pain and limitation of motion, but has not been manifested by ankylosis; limitation of motion of the arm to midway between the side and shoulder level (approximately 45 degrees), even considering pain; fibrous union or nonunion of the humerus; or loss of head of the humerus. 4. Prior to January 18, 2017, the Veteran’s depressive disorder with anxiety has been manifested in symptoms of frequency, severity, or duration most similar to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 5. From January 18, 2017, depressive disorder with anxiety has been manifested in symptoms of frequency, severity, or duration most similar to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 20 percent prior to May 25, 2018, for bursitis of the left shoulder is denied have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Codes 5003-5201 (2018). 2. The criteria for an increased disability rating in excess of 30 percent from May 25, 2018, for bursitis of the left shoulder is denied have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Codes 5003-5201 (2018). 3. The criteria for an increased disability rating in excess of 20 percent for bursitis of the right shoulder is denied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5201 (2018). 4. Prior to January 18, 2017, the criteria for an initial disability rating in excess of 30 percent for depressive disorder with anxiety are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2018). 5. From January 18, 2017, the criteria for an initial disability rating in excess of 50 percent for depressive disorder with anxiety are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2018). 6. The criteria for the assignment of a disability rating in excess of 30 percent prior to January 18, 2017, and in excess of 50 percent from January 18, 2017, for service-connected depressive disorder with anxiety associated with bursitis of the right shoulder have not been met. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1960 to October 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal of December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Regarding the issue of entitlement to an increased disability rating for bursitis of the left shoulder, the RO granted an increase in the evaluation to 30 percent, effective May 25, 2018. Since this grant did not constitute a full grant of the benefits sought on appeal, the claim remains for appellate review. AB v. Brown, 6 Vet. App. 35, 39 (1993). 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). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The 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. § 1155; 38 C.F.R. § 4.1 (2018). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). 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 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 38 C.F.R. §§ 4.40, 4.45 and 4.59 require the Board to consider a veteran’s pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). 38 U.S.C. § 1154 (a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability benefits. Lay 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 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity.” See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Increased disability rating for service-connected bilateral shoulders The Veteran contends that his service-connected bilateral shoulder disabilities warrant a higher disability rating. 38 C.F.R. §§ 4.40, 4.45 and 4.59 require the Board to consider a veteran’s pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. 38 C.F.R. § 4.69. The Veteran is right-hand dominant; thus, his service-connected right shoulder disability involved his major extremity and will be evaluated accordingly. For reference, standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Turning to the evidence of record, the Veteran was afforded a September 2013 VA examination for the shoulder where he reported he was no longer able to shoot rifles or fish caused by limited motion as it cannot go past 90 degrees due to pain. The rest of the motion did not have locks or mechanical symptoms but is limited to 90 degrees for flexion and abduction. The strength and stabilities were normal and he is not receiving treatment other than rest. The activities of daily living were normal. The Veteran stated the rest of the motion did not have locks or mechanical symptoms. The strength and stabilities were normal and it was treated with rest. The range of motion testing revealed left shoulder limitation of flexion at 90 degrees and abduction at 90 degrees with pain. The right shoulder flexion and abduction were also limited to 90 degrees with pain. There was no evidence of ankylosis. Imaging studies of the shoulder revealed degenerative or traumatic arthritis. There was no evidence of additional limitation in range of motion of the shoulder following repetitive-use testing. There was functional loss and/or functional impairment of the shoulder shown by less movement than normal and pain on movement. The Veteran was afforded another VA examination in October 2014 where a diagnosis of bilateral subacromial/subdeltoid bursitis was confirmed. The Veteran stated he could not do any overhead activity, lift, or carry, or sleep on his side due to shoulder pain. He treated his pain with hydrocodone daily. He is a retired warehouse worker with full ability for activities of daily living. He reported grinding with motion and pain and no mechanical locking or sticking. The range of motion testing of the left shoulder indicated flexion limited to 90 degrees, abduction to 90 degrees, internal rotation to 80 degrees, and external rotation to 40 degrees. The range of motion testing for the right shoulder revealed flexion limited to 90 degrees, abduction to 90 degrees, external rotation at 40 degrees, and internal rotation at 80 degrees. With both shoulders exhibited pain on examination and caused functional loss which limited all lifting, carrying, or reaching. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. No evidence of ankylosis was noted. According to VA treatment record, the Veteran underwent surgery after injuring his shoulder resulting in a fractured left humerus in March 2018. Finally, according to the June 2018 VA examination, the Veteran reported he had more difficulty lifting with his right shoulder and cannot work over head at all. His left shoulder was the same but worsened. The cannot work over head and cannot lift heavy items due to pain. He reported dull, constant ache in both shoulders and where the pain became sharp when he attempts to life his arms above his shoulder or his head. He reported constant pain at a 3 or 4 out of 10. An x-ray that month revealed intact fixation hardware spanning a healing fracture of the proximal humeral diametaphysis. The alignment was normal and no acute abnormalities were identified. The Veteran reported his flare-ups felt hot and shoulders appeared red. He stated he had difficulty moving his shoulders and symptoms can last about a week and occurred about once a year. He stated the flare-up came on spontaneously. He stated he could not life his arms over his head without severe pain and could not lift anything heavy. The diagnoses of shoulder impingement syndrome, rotator cuff tendonitis, and calcific bursitis were confirmed. A physical examination showed the Veteran’s left shoulder range of motion was flexion at 25 degrees, abduction at 35 degrees, and external and internal rotation at 15 degrees. The range of motion for the right shoulder was 75 degrees flexion and abduction, external rotation at 40 degrees, and internal rotation at 70 degrees. The VA examiner determined that this range of motion contributed to functional loss as the Veteran was unable to carry anything heavier than 5lbs and unable to work with his arm above his shoulders. There was evidence of AC joint of moderate severity and calcified bursitis. Pain with weight bearing and crepitus was revealed. There was no additional loss of function or range of motion after three repetitions. The report indicates pain, weakness, fatigability, or incoordination significantly limited his functional ability with repeated use over a period of time and flare-ups where the range of motion is limited to 20 degrees of flexion and abduction, and 10 degrees external and internal rotation. There was no evidence of ankylosis. There was also no evidence of scars (surgical or otherwise) related to any conditions or to the treatment of the Veteran’s diagnosis. Finally, the pursuant to Correia, the VA examination report indicated there was no objective evidence of pain on non-weight bearing and the passive range of motion was the same as active as stated above. Each service-connected shoulder disability will be discussed below. Entitlement to an increased disability rating in excess of 20 percent prior to May 25, 2018, and in excess of 30 percent from May 25, 2018 for bursitis of the left shoulder The Veteran’s left shoulder disability is rated 0 percent under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5201. See 38 C.F.R. § 4.27. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. This hyphenated diagnostic code may be read to indicate that degenerative arthritis is the service-connected disorder, and it is rated as if the residual condition is limitation of motion of the arm under Diagnostic Code 5201. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under 38 C.F.R. § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint.” 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Petitti v. McDonald, 27 Vet. App. 415 (2015). 38 C.F.R. § 4.59 does not require “objective” evidence, but can be satisfied with lay and other non-medical evidence. Id. Under Diagnostic Code 5201, when rating for limitation of shoulder motion, for a minor (non-dominant) joint, a minimum 20 percent rating is warranted for motion limited to midway between side and shoulder level or for motion limited to shoulder level (i.e., motion limited from 45 to 90 degrees). A maximum 30 percent rating is warranted for motion limited to 25 degrees from the side for a minor (non-dominant) joint. A Veteran is only entitled to a single disability rating under Diagnostic Code 5201 as that code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm. Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). The foregoing evidence establishes that the Veteran’s left shoulder disorder does not warrant a rating higher than 20 percent prior to May 25, 2018. The evidence does not show that the Veteran’s left arm range of motion was limited to 25 degrees from the side. Rather, and considering the effects of pain on the Veteran’s range of motion, the evidence shows that at worst the Veteran’s left arm range of motion is limited to shoulder level. VA examinations conducted during the appeal period repeatedly showed that at most the Veteran was limited to 90 degrees in abduction before pain began. Plate I at 38 C.F.R. § 4.71a shows that 90 degrees is at shoulder level, and represents the mid-point in flexion and abduction from 0 to 180 degrees. Midway between the side and the shoulder level would therefore be approximately 45 degrees. At worst, and considering the additional functional limitation due to pain and weakness, the Veteran has only been limited to 90 degrees in flexion or abduction which is not considered midway between the side and the shoulder level. Rather, the degree of functional limitation is more nearly contemplated by the 20 percent rating criteria for arm motion limited at shoulder level. There is also no evidence that due to functional loss or flare ups the Veteran’s left arm range of motion was limited to midway between side and shoulder level. The 2014 VA examiner determined the Veteran did not have additional functional loss or range of motion after three repetitions. There was also no evidence that pain, weakness, fatigability or incoordination significantly limited the functional ability with flare-ups. As such, the Board does not find that the additional degree of functional impairment reported during a flare or following repetitive use warrants a rating higher than 20 percent. In conclusion, the criteria for a rating higher than 20 percent for service-connected left shoulder disability prior to May 25, 2018 are not met during the period on appeal. 38 C.F.R. § 4.71a. Diagnostic Code 5201. Additionally, the Board notes that a rating in excess of 30 percent for the left shoulder disability from May 25, 2018, is not available which is the highest evaluation permitted under Diagnostic Code 5201 for a minor extremity. It is again noted that tenets of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not applicable due the Veteran receiving the maximum schedular rating for loss of motion. An evaluation in excess of 30 percent was not warranted based on the June 2018 examination. The measurements most closely support a 30 percent evaluation for a minor extremity under Diagnostic Code 5201. Furthermore, the Board finds that the June 2018 examination also meets the requirements of Correia and still does not show limitation of motion warranting a rating in excess of 30 percent. The Board has considered whether higher ratings could be assigned under alternate diagnostic codes. See Butts v. Brown, 5 Vet. App. 532 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in Diagnostic Code must be specifically explained). The record on appeal does not support evaluating the Veteran’s left shoulder disability under alternate diagnostic codes. The VA examinations did not identify ankylosis in the left shoulder; therefore, Diagnostic Code 5200 is not applicable. Diagnostic Code 5202 is not applicable because the although the Veteran injured and was treated for, his left humerus, record is silent as to any impairment of the Veteran’s humerus, to include flail shoulder, false flail shoulder, fibrous union, or recurrent shoulder dislocations. Likewise, Diagnostic Code 5203 is not applicable because the record does not document dislocation, nonunion, or malunion of the clavicle and scapula, and the Veteran’s evaluations already exceed the evaluations available under Diagnostic Code 5203. Lastly, Diagnostic Code 5051, which applies to prosthetic shoulder replacements, is not applicable here because the Veteran has not had shoulder replacement surgery. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to an increased disability rating in excess of 20 percent for bursitis of the right shoulder The Veteran’s right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201 for limitation of motion of the arm. Diagnostic Code 5201 provides a 30 percent rating for a major extremity where the limitation of the arm is limited to midway between a veteran’s side and shoulder level. Where limitation of the arm is limited to 25 degrees from the side, Diagnostic Code 5201 affords a 40 percent rating for a major extremity. The evidence of record shows that the criteria for a 30 percent rating under Diagnostic Code 5201 were not met during the period of appeal. The objective range of motion testing during this period does not give rise to an increased rating in excess of 20 percent. The three range of motion testing conducted from September 2013 to June 2018, fails to demonstrate that the Veteran had limited motion of the arm midway between the side and the shoulder level, to warrant the higher 30 percent rating. The June 2018 VA examination also meets the requirements of Correia and still does not show limitation of motion warranting a higher rating. Even when considering pain and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45, the Veteran’s disability picture is not more closely approximated by the 30 percent criteria. 38 C.F.R. § 4.71a (2017). As the Veteran is not entitled to an increased evaluation under Diagnostic Code 5201, the Board must determine whether a higher rating is warranted under other potentially applicable Diagnostic Codes pertaining to the part of the body or other similar Diagnostic Codes. Butts, 5 Vet. App. at 538 (1993). As stated above, the Board notes that 38 C.F.R. § 4.71a, Diagnostic Code 5200 (2017) allows for an increased rating for ankylosis of the shoulder. However, while the range of motion of the right shoulder was reduced at the June 2018 VA examination, the evidence does not indicate that the Veteran was diagnosed with ankylosis, at any time during the appeal period. Therefore, since the Board may not rate his service-connected disability as ankylosis without such a diagnosis, an increased rating is not warranted for his right shoulder bursitis under Diagnostic Code 5200. Johnston v. Brown, 10 Vet. App. 80 (1997). A rating in excess of 20 percent could potentially be warranted under other Diagnostic Codes pertaining to impairment of the humerus, clavicle, or scapula under 38 C.F.R. § 4.71a, Diagnostic Codes 5202 and 5203. However, they too, are not for application because none of the VA examinations have made such a diagnosis. Hence, an increased rating is not warranted under Diagnostic Codes 5202 and 5203. The Veteran is competent to report on symptoms and credible in his belief that he is entitled to a higher rating during the pendency of this appeal. His competent and credible lay evidence, however, is outweighed by the competent and credible medical evidence that evaluates the true extent of the right shoulder disability based on objective range of motion testing coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, a greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment. The Veteran’s symptoms from his right shoulder disability, have not met the rating criteria for a rating in excess of 30 percent at any time during this appeal period. As a result, a staged rating is not warranted. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran or his representative, as required by Schafrath, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis for which to assign a higher disability rating for his shoulder disability. The Veteran’s claims of entitlement to an increased disability rating in excess of 20 percent prior to May 25, 2018, and in excess of 30 percent from May 25, 2018, for bursitis of the left shoulder; and entitlement to an increased disability rating in excess of 20 percent for bursitis of the right shoulder is denied. 2. Entitlement to an initial increased disability rating in excess of 30 percent from February 24, 2014, and 50 percent from January 18, 2017, for depressive disorder with anxiety. The Veteran’s depressive disorder with anxiety is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). Under the general formula for rating mental disorders, a 30 percent evaluation is assigned when the evidence demonstrates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent is assigned where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent schedular evaluation contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) (explaining that VA intended the General Rating Formula to provide a regulatory framework for placing veterans on the disability spectrum based upon their objectively observable symptoms). Symptoms listed in VA’s general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). When addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board’s “authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence”). As to some of the factors that go into making credibility determinations, both the Court and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have provided guidance. See Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006) (stating that “the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.”); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that “[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character”). The Board will first address whether an evaluation in excess of 30 percent disabling is warranted for the Veteran’s service-connected depressive disorder with anxiety associated with bursitis of the right shoulder prior to January 18, 2017. Turning to the evidence of record, the Veteran underwent a VA examination in October 2014 where a diagnosis of depressive disorder due to another medical condition with anxiety was confirmed. The Veteran’s symptoms included dysphoric mood, insomnia, fatigue, feeling of worthlessness at times, and nightmares of experiences in Vietnam as a medic. There was no suicidal ideation. The VA examiner noted the Veteran’s level of occupational and social impairment was best summarized as “[o]ccupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.” The Veteran reported he had a large group of friends, hunted, fished, and camped. He stated he was married for 16 years and that it was going very well. He had two children. He stated he socialized with his wife participating in “a lot of [S]hriner activities” and gets along well with a large group friends. He reported he has never had mental health therapy but sometimes takes trazedone and has never been hospitalized for mental health. A mental health examination revealed the Veteran was cooperative; oriented to person, time, and place; normal thought process; average insight and judgment; and no suicidal ideation. He had depressed mood and chronic sleep impairment. Based on the above, the Board finds that prior to January 18, 2017, the Veteran’s depressive disorder with anxiety associated with bursitis of the right shoulder resulted in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). This is a level of occupational and social impairment consistent with the currently assigned 30 percent disability rating. Here, based on the review of the relevant evidence, the Veteran does not demonstrate the majority of the actual symptoms identified in the rating schedule as characteristic of at least the next higher, 50 percent, rating. He also is not shown to manifest other symptoms of the severity, frequency and duration which approximate the criteria for a 50 percent or higher rating. The Board notes that the VA treatment records reflect that the Veteran’s symptoms primarily consisted of depressed mood, anxiety, chronic sleep impairment, and intrusive thoughts. The Board acknowledges the Veteran’s symptoms of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. However, there was no indication that the Veteran’s depressive disorder with anxiety results in occupational and social impairment with reduced reliability and productivity due to such symptoms. The Veteran reported he and his wife were socialized with a large group of friends. He was alert and oriented; his thought process was intact and thought content was without psychotic material; there was no evidence of suicidal ideation; concentration, focus, and memory were adequate. In addition, there was no indication he was a danger to himself or others. Under the circumstances of this case, the Board finds that the symptomatology of the Veteran’s depressive disorder with anxiety associated with bursitis of the right shoulder has not met or approximated the criteria for a 50 percent rating at any point prior to January 18, 2017. See 38 C.F.R. § 4.7. As the criteria for the next higher, 50 percent, rating are not met, it follows that the criteria for an even higher rating (70 or 100 percent) likewise are not met. The next question is whether an evaluation in excess of 50 percent disabling is warranted for the Veteran’s service-connected depressive disorder with anxiety associated with bursitis of the right shoulder from January 18, 2017. The Veteran was afforded another VA examination in January 2017 where the VA examiner stated the Veteran’s level of occupational and social impairment with regards to his mental diagnosis was best described as “[o]ccupational and social impairment with reduced reliability and productivity.” The Veteran stated his wife recently passed away in October 2016 and he lives with his two children. The Veteran endorsed feeling depressed more days than not. He described his mood as “dreary” and stated, “I should be happy, but I’m not.” He indicated his depression stems from the fact that he cannot get around easily due to the shoulder and knee injuries he sustained while in the military. He reported he cannot engage in his favorite activities of hunting and fishing due to his ailments. He stated he also cannot get out and do activities with his children and his grandchildren as he would like due to his physical ailments. He indicated he tends to isolate himself from others and he does not enjoy the company of others as much as he used to in the past. He reported he has a local group of friends who meet for coffee in the mornings, but most days he cannot find the motivation to go. Although he tries to keep himself busy throughout the day by cleaning the house, cooking, reading, and caring for his cats and dog, he endorsed having to force himself to complete these tasks. He endorsed chronic sleep difficulties; he described sleeping for about 3 hours, waking, “wandering the house” to get sleepy again, and then sleeping for another 1-2 hours. He denied suicidal ideation and listed his children and grandchildren as reasons why he would not take his life. Veteran endorsed experiencing symptoms of depression for the last 3-4 years, with a worsening of symptoms over the last 1-2 years. The Veteran’s current symptoms were depressed mood; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work-like setting. The VA examiner reported the Veteran was alert and oriented to time, place, person, and purpose of the evaluation. He was casually and appropriately dressed, wore eyeglasses, and stated he left his cane at a gas station while on the way to this appointment, otherwise, he would have been walking with a cane for support. The Veteran moved and walked stiffly. He was pleasant and displayed no irritation or anger. His affect congruent with “dreary” mood, and thought process was clear, direct, and fluent. The Veteran’s speech rate and tone were within normal limits. The Veteran was capable of managing his financial affairs. Considering the evidence as a whole, the Board concludes that from January 2017, the Veteran’s depressive disorder with anxiety associated with bursitis of the right shoulder did not warrant a rating in excess of the current 50 percent rating and a higher schedular rating is not warranted. The Board finds that the criteria for a 70 percent evaluation have not been met. First the evidence does not support that there are deficiencies in most areas. The Board acknowledges the Veteran had difficulty in adapting to stressful circumstances (including work or a work-like setting) and inability to establish and maintain effective relationships due to his physical ailments. However, his depressive disorder with anxiety did manifest with the symptoms for a 70 percent. His speech has been consistently noted normal, there was no evidence of impaired impulse control or spatial disorientation, and he has not expressed suicidal or homicidal ideations. He has also not reported obsessional rituals. The Veteran remained fully oriented with good hygiene and appearance throughout. Finally, his other symptoms are not of the similar severity, frequency, and duration as those noted in the 70 percent criteria. In short, the evidence does not show that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a 70 percent rating. Mauerhan v. Principi, 16 Vet. App. at 442-43. Accordingly, because the evidence fails to show deficiencies in most areas due to symptoms equivalent in severity to those listed in the rating criteria for a 70 percent rating, the Board finds that a rating in excess of 50 percent is not warranted. See Vazquez-Claudio, supra. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for bursitis of the right knee is remanded. In increased evaluation claims, VA examinations for musculoskeletal conditions must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Regarding the claim for an increased rating for his bursitis of the right knee, remand is required for an additional examination. Although an examination was obtained in January 2017 for the Veteran’s service-connected right knee disability, the findings did not include range of motion measurements on passive, weight-bearing, and nonweight-bearing. Accordingly, remand is warranted. 2. TDIU is remanded. Entitlement to a TDIU requires evidence of service-connected disability so severe that it is impossible for the veteran in particular, or an average person in general, to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations indicate that when a veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran’s combined disability rating is 70 percent as of May 22, 2013; 80 percent as of February 24, 2014; 80 percent as of April 14, 2016; 90 percent as of January 18, 2017; and 90% as of May 25, 2018. Thus, for at least part of the time period on appeal the Veteran met the schedular criteria for TDIU. As the Veteran satisfies the schedular percentage rating standards for TDIU, and the question now becomes whether the Veteran is precluded from substantially gainful employment as a result of his service-connected disabilities. As to that question, the Board finds that the record does not contain sufficient competent medical evidence to decide the claim, and the Veteran should be scheduled for a VA examination. Here, the evidence of record demonstrates that the Veteran retired as a warehouse worker. Prior VA examination reports indicates the Veteran is not expected to have any physical labor has he cannot hold his arms over his head. However, there is no opinion regarding the impact of the severity of all his service-connected disabilities on employability, specifically sedentary employment. As such, this must be done on remand. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA examination of his bursitis of the right knee. The electronic claims file must be made accessible to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant DBQ must be utilized. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the right knee in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. 2. Provide the Veteran with a VA examination to address the impact of the Veteran’s service-connected disabilities on employability. The examiner should elicit and set forth pertinent facts regarding the Veteran’s medical history, education history, employment history, day-to-day functioning, and social and industrial capacity. A full explanation of any provided opinion is required. (Continued on the next page)   The examiner should provide an opinion concerning the impact of the Veteran’s service-connected disabilities on his ability to work. The examiner should not consider the Veteran’s age and any nonservice-connected disorders. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yoo, Counsel