Citation Nr: 0615727 Decision Date: 05/31/06 Archive Date: 06/06/06 DOCKET NO. 93-12 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating for a service- connected cervical spine disability, currently evaluated as 40 percent disabling. 2. Entitlement to service connection for major depression, claimed as secondary to the service-connected cervical spine disability. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Sean A. Ravin, Esq. WITNESSES AT HEARING ON APPEAL The veteran and C.N.B., M.D. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from September 1979 to June 1982, and from January 1987 to April 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Procedural history Cervical spine disability Service connection for a cervical spine disability was granted in a September 1982 RO rating decision. A noncompensable disability rating was assigned. In June 1989, the assigned rating was increased to 10 percent. In a January 1993 rating decision, the RO assigned a 20 percent rating for the veteran's service-connected cervical spine disability. The veteran indicated disagreement with the disability rating assigned and, after being issued a statement of the case, perfected his appeal of that issue by means of his submission of a substantive appeal (VA Form 9) in April 1993. The case was remanded by the Board in February 1995 and August 1996. In a May 1999 decision, the Board granted a 40 percent rating for the veteran's cervical spine disability prior to July 11, 1997, the date the veteran underwent a cervical diskectomy. The issue of entitlement to a rating in excess of 20 percent for a cervical spine disorder after July 11, 1997, was remanded for additional evidentiary development. While the matter was in remand status, in September 1998 and February 2002 rating decisions, the RO granted a temporary total rating for convalescence from July 11, 1997, followed by a 40 percent rating for the veteran's service-connected cervical spine disability, effective December 1, 1997. Although an increased rating was granted, the issue of entitlement to a rating in excess of 40 percent for a cervical spine disability remained in appellate status, as the veteran continued to assert that he was entitled to a higher rating. In an October 2002 decision, the Board denied a rating in excess of 40 percent for the veteran's cervical spine disability. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in February 2003, the veteran's attorney and a representative of VA's General Counsel filed a joint motion for remand. In a March 2003 order, the Court granted the motion and remanded the matter to the Board for readjudication. In September 2003 and June 2004, the Board remanded the matter to the RO for due process considerations and additional evidentiary development. A review of the record shows that the RO has complied with all remand instructions to the extent necessary. Stegall v. West, 11 Vet. App. 268 (1998). In April 2005, the RO issued a supplemental statement of the case (SSOC) which denied a disability rating in excess of 40 percent for the service-connected cervical spine disability. In December 2005, the veteran testified at a hearing which was chaired by the undersigned Veterans Law Judge in Washington, D.C. A transcript of the hearing has been associated with the veteran's VA claims folder. Following the hearing, the veteran through counsel submitted additional evidence, which was accompanied by a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2005). Major depression and TDIU In May 2002, the RO denied service connection for depression secondary to the veteran's service-connected cervical spine disability. In an April 2005 rating decision, the RO confirmed its denial of service connection for depression, and further denied TDIU. A notice of disagreement was received later that month. In August 2005, the RO issued a Statement of the Case addressing the issues of entitlement to service connection for depression and TDIU. Through his attorney, the veteran perfected his appeal of those issues by means of his submission of a substantive appeal in September 2005. As set forth in more detail below, a remand is required with respect to the claims of service connection for depression and entitlement to TDIU. These issues are addressed in the REMAND portion of this decision, below. Additional issue not on appeal In a December 2005 letter submitted by the veteran in support of his current appeal, Dr. B. indicated that "I would also like to add that this patient's current bladder dysfunction is likely due to . . . his progressive service connected cervical spine problem." The Board observes that service connection for a bladder disability, claimed as secondary to the service-connected cervical spine disorder, was previously denied by the RO in an unappealed August 1996 rating decision. If it is the veteran's intent to file an application to reopen the claim of service connection for a bladder disability, he should so advise the RO. See 38 C.F.R. § 3.155(a). FINDING OF FACT The veteran's service-connected cervical spine disability is manifested by subjective reports of constant pain, as well as muscle spasm and neurological findings including diminished response to pinprick in the upper extremities. CONCLUSION OF LAW Affording the veteran the benefit of the doubt, the criteria for a 60 percent rating for a cervical spine disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5293 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to an increased rating for a service- connected cervical spine disability, currently rated as 40 percent disabling. The veteran seeks an increased rating for his service- connected cervical spine disability. He contends that the symptomatology associated with his disability more nearly approximates the criteria for a 60 percent disability rating under 38 C.F.R. § 4,71a, Diagnostic Code 5293 (as in effect prior to September 23, 2002). As is discussed elsewhere in this decision, the remaining to issues on appeal, entitlement to service connection for major depression, claimed to be secondary to the service-connected cervical spine disability; and entitlement to TDIU, are being remanded for additional development. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. Initial matter - the Joint Motion The procedural history of this case has been set out in the Introduction above. As noted, this case has been subject to a remand from the Court in March 2003. The Joint Motion which precipitated the Court's order made no specific direction other than that VA provide sufficient reasons and bases to support its conclusion that VA provided adequate notice to the veteran of the information and evidence needed to substantiate his claim. See 38 U.S.C.A. § 5103(a). The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C.A. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with that obligation in mind. The Board further observes, however, that the Court made no substantive comments as to the Board's previous decision on the merits of the claim; the Court's order dealt exclusively with legal obligations under the Veterans Claims Assistance Act of 2000 (the VCAA). The Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ["Court will [not] review BVA decisions in a piecemeal fashion"]; see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ["[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"]. The Board is therefore confident that if the Court had any substantive comments concerning the Board's handling of the merits of this case, such would have surfaced in the prior Court order so that any deficiencies could be corrected. The Veterans Claims Assistance Act As was alluded to above, this issue was remanded by the Court in March 2003 due to concerns about compliance with the VCAA. For reasons explained in detail immediately below, the Board finds that the VCAA has been complied with. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review The current standard of review is as follows. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2005). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. To comply with the aforementioned VCAA requirements, the RO must satisfy the following four requirements. First, the RO must inform the claimant of the information and evidence not of record that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2005). Second, the RO must inform the claimant of the information and evidence the VA will seek to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2005). Third, VA must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2005). Finally, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2005). In this case, in March 2004, the RO sent to the veteran a letter which was specifically intended to address the requirements of the VCAA with reference to his claim. The letter advised the veteran that in order to establish entitlement to an increased rating, he must submit medical or other evidence that his service-connected disability had increased in severity. He was also specifically advised of the pertinent rating criteria for establishing a 60 percent rating for intervertebral disc syndrome. The March 2004 VCAA letter further advised the veteran of the information and evidence VA would seek to provide and what information and evidence he was expected to provide. For example, he was advised that VA would obtain records in the custody of a federal department or agency, while he was responsible for providing enough information so that records could be obtained on his behalf. Finally, the March 2004 letter specifically advised the veteran that "[i]f there is any other evidence or information that you think will support your claim, please send it to us." This complies with the requirements of 38 C.F.R. § 3.159(b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by VA. The Board notes that in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. In this case, element (1), veteran status, is not in dispute. Elements (2) and (3) are also not at issue, as service connection is already in effect for the disabilities considered in this case. With respect to element (4), degree of disability, as discussed above, the veteran has received adequate notification with respect to this element. With respect to element (5), effective date, the Board finds that any lack advisement as to this element is harmless error, because the matter of an effective date is not now at issue before the Board. As is discussed below, an increased rating is being granted by the Board for the service-connected cervical spine disability. It is not within the Board's jurisdiction to assign an effective date therefor. The Board is confident that prior to assigning an effective date, the agency of original jurisdiction will provide appropriate notice under Dingess to the veteran and to his attorney. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that under the notice provision of the VCAA a claimant must be given notice of the evidentiary matters specified in statute and regulation before an initial unfavorable decision by the RO. In this case, since the veteran's claim was initially adjudicated by the RO in January 1993, prior to the enactment of the VCAA, the notice provisions of the VCAA clearly could not be satisfied within the time constraints required under Pelegrini. Furnishing the veteran with VCAA notice prior to initial adjudication was clearly an impossibility; VA's General Counsel has held that the failure to do so does not constitute error. See VAOGCPREC 7-2004. In any event, the Board does not believe that the veteran has been prejudiced by any error in timing. After VCAA notice was provided to the veteran and his attorney in March 2004, his claim was readjudicated by the RO, in an October 2004 SSOC and most recently in the April 2005 SSOC. Based on this procedural history, the Board finds that the veteran was not prejudiced by any notification deficiencies. Neither the veteran nor his attorney has argued otherwise. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006) [due process concerns with respect to VCAA notice must be pled with specificity]. Moreover, the veteran is represented by counsel and has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The veteran through counsel is obviously well aware of the provisions of the VCAA. Indeed, the Joint Motion for Remand which was the basis for the Court's March 5, 2003 Order makes this abundantly clear. Moreover, it is clear from the presentation of the veteran and his attorney, as well as their expert medical witness, at the December 2005 personal hearing, that each is aware of the requirements of the law in general and of the VCAA in particular. In short, based on the above record, the Board concludes that the veteran has been amply and correctly informed of what is required of him and of VA in connection with his claim for an increased rating for a cervical spine disorder. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2005). The Board finds that adequate efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. VA has obtained, and associated with the veteran's claims file, his service medical records, reports of post-service treatment, and records from the Social Security Administration (SSA). The veteran has also submitted medical evidence in connection with his claim, including reports and testimony from Dr. B. In addition, the veteran has been examined by VA on numerous occasions during the course of this appeal. Indeed, the Board counts seven VA examinations for compensation purposes. See VA medical examination reports of September 1992, September 1995, August 1996, August 1997, December 1996, October 1999, and December 2004. The reports of these examinations provide the necessary medical opinions as well as sufficient reference to the pertinent schedular criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim on appeal has been consistent with the provisions of the VCAA, without any error that would affect the essential fairness of this adjudication. Accordingly, the Board will proceed to a decision on the merits. Relevant law and regulations Disability ratings - in general Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2005). Separate diagnostic codes identify the various disabilities. Rating musculoskeletal disabilities The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2005) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2005). See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). Assignment of diagnostic code The veteran's service-connected cervical spine disability, characterized as cervical myositis with disc disease, status post C5-6 interbody fusion, has been rated by the RO under the criteria for rating intervertebral disc syndrome. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board can identify nothing in the evidence to suggest that other diagnostic codes would be more appropriate, and the veteran has not requested or suggested that other diagnostic codes should be used. Indeed, the veteran has specifically argued that application of 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002) is most appropriate. Specific rating criteria During the lengthy pendency of this appeal, the rating criteria for intervertebral disc syndrome were revised. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. The Board will therefore evaluate the veteran's service-connected cervical spine disorder under both the former and the current schedular criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See VAOPGCPREC 3-2000 (April 10, 2000); Green v. Brown, 10 Vet. App. 111, 117 (1997). (i.) The former schedular criteria Under the rating criteria in effect prior to September 23, 2002, a 40 percent rating was assigned for severe intervertebral disc syndrome with recurring attacks and intermittent relief. A maximum 60 percent rating was assigned for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). (CONTINUED ON NEXT PAGE) (ii.) The current schedular criteria Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes A 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; A 40 percent disability rating is warranted with incapacitating episodes having a total duration of 40 at least 4 weeks but less than 6 weeks during the past 12 months; A 20 percent disability rating is warranted with incapacitating episodes having a total duration of 20 at least 2 weeks but less than 4 weeks during the past 12 months; A 10 percent disability rating is warranted with incapacitating episodes having a total duration of 10 at least one week but less than 2 weeks during the past 12 months. Note: For purposes of evaluations under 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2005). Analysis Schedular rating As noted, the veteran is seeking an increased disability rating for his service-connected cervical spine disability. His disability is currently evaluated as 40 percent disabling. Through counsel he has argued that a 60 percent rating is warranted for his cervical spine disability, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Applying the facts in this case to the criteria set forth above, and affording the veteran the benefit of the doubt, the Board finds that the criteria for a 60 percent rating for a cervical spine disability have been met under former Diagnostic Code 5293. As discussed above, such criteria may be applied prospectively. The Board's reasoning follows. As noted, the former criteria under Diagnostic Code 5293 provide that in order to warrant a 60 percent rating, the evidence must show pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. The evidence in this case shows that the veteran claims that he experiences constant, severe cervical spine pain with symptoms such as numbness in the upper extremities. While records of treatment shortly after the veteran's July 1997 cervical surgery show that he reported significant improvement in his cervical spine pain, more recent records show that he now claims that such pain is present constantly. For example, at an October 1999 VA medical examination, the veteran complained of constant and severe neck pain, which he rated as an 8 on a pain scale of 1 to 10. Similarly, the veteran claims that he experiences neurological symptoms such as radiating pain, numbness, and tingling in the upper extremities. The medical evidence is inconsistent regarding the severity of objective neurological impairment. For example, at a December 2004 VA neurological examination, the examiner noted that although the veteran had radiological evidence of disc disease, there was no objective evidence for radiculopathy. Rather, she characterized the veteran's disability as mild and indicated that the veteran was "clearly exaggerating his examination findings" in an attempt to obtain an increased disability rating. On the other hand, an October 1999 VA medical examination report notes findings of severe disability, including spinal stenosis, numbness in the upper extremities, frequent spasms with hypertrophy of left trapezius muscle, and painful and restricted cervical spine motion. Similarly, in a December 2005 letter as well as in sworn hearing testimony, Dr. B. indicated that he had examined the veteran and reviewed his claims folder. He indicated that the veteran's cervical spine disability was manifested by restricted range of motion, pain, muscle spasm, and sensory deficits. He concluded that the manifestations of the veteran's cervical spine disability fell squarely within the criteria for a 60 percent schedular rating. As set forth above, under the benefit-of-the-doubt rule in 38 U.S.C.A. § 5107(b), for a veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert, 1 Vet. App. at 54. Given the medical evidence of record, such a conclusion cannot be made in this case. Thus, the Board finds that the manifestations of the veteran's service- connected cervical spine disability more nearly approximate the criteria for the 60 percent rating under Diagnostic Code 5293. See also 38 C.F.R. § 4.3. A 60 percent rating is the maximum rating available. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002) and Diagnostic Code 5243 (2005). Since the 60 percent rating which has been assigned under former Diagnostic Code 5293 may be assigned prospectively, there is no need for rating the veteran under the current schedular criteria. Moreover, the veteran has specifically requested a 60 percent rating under former Diagnostic Code 5293. The Board adds that rating the veteran under current Diagnostic Code 5243 would not result in a higher disability rating. The veteran does not contend that he seeks a disability rating higher than 60 percent, and he has presented no evidence or argument to that effect. Indeed, a review of the medical record reveals no objective evidence that the veteran is bedridden as a result of his service-connected cervical spine disability, and his appearance at his personal hearing in Washington, D.C. makes it clear that he does not purport to be bedridden. Nor is his entire spine is ankylosed. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Thus, entitlement to a disability rating in excess of 60 percent is not contended and is not warranted, either under the old or amended criteria. DeLuca considerations The Board recognizes that there are situations in which the application of 38 C.F.R. §§ 4.40 and 4.45 (2004) is warranted in order to compensate a veteran for functional loss due to pain, weakened movement, excess fatigability, incoordination, or pain on movement when the rating code under which the veteran is rated does not contemplate these factors. See DeLuca, supra. However, in light of the Board's assignment of a 60 percent rating, the veteran is now in receipt of a rating greater than the highest schedular evaluation for limitation of motion of the cervical spine under both the former and current criteria. The provisions of 38 C.R.R. §§ 4.40 and 4.45 accordingly are not for application. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Extraschedular rating Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2005), Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In the February 2002 Supplemental Statement of the Case, the RO included recitation of the criteria for an extraschedular rating. The Board will, accordingly, consider the provisions of 38 C.F.R. 3.321(b)(1) (2005) in connection with the issue on appeal. See VAOPGCPREC 6-96 (August 16, 1996); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). In this case, the Board finds that the record does not show that the cervical spine disability is unusual or exceptional as to render impractical the application of regular schedular standards. For example, medical examiners have not indicated that the veteran's cervical spine disability is in any way out of the ordinary clinically. Similarly, there is no evidence of frequent periods of hospitalization for cervical spine complaints; rather, it does not appear that the veteran has been hospitalized since his cervical spine surgery in 1997. With respect to marked interference with employment, the Board notes that the evidence is inconsistent. The record shows that the veteran has not worked since 1997. His most recent training and experience is as an optician. Dr. B. has concluded that the veteran's service-connected cervical spine disability renders him unemployable. On the other hand, in December 2004, a VA neurological examiner characterized the veteran's cervical spine disability as "quite mild" based on objective findings and concluded that he was malingering in an attempt to obtain an increased rating. The Board also notes that although the veteran is currently in receipt of disability benefits from the Social Security Administration, that agency has identified other disabilities which contribute to his unemployability, in addition to the cervical spine disability. For example, in a January 1999 letter filed with the agency in support of his claim, the veteran indicated that he believed he was disabled due to a combination of disabilities, including cervical and lumbar spine disabilities, chronic fatigue syndrome, irritable bowel syndrome, migraine headaches, a psychiatric disability, and a personality disorder. See also a March 1999 SSA decision, citing numerous disabilities. In summary, the Board finds that although the record contains evidence showing that the veteran's cervical spine disability is productive of significant functional impairment, any such interference with employment is reflected in the 60 percent disability rating that is currently assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. In short, the medical evidence of record does not indicate that the veteran's cervical spine disability is so unusual or exceptional as to render impractical the application of regular schedular standards. Therefore, the Board finds that the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237 (1996). Additional comment Although Dr. B. had indicated that the veteran's cervical spine disability, alone, is productive of unemployability, as discussed above the Board does not agree with that assessment. Nor, evidently, does the SSA. See Martin v. Brown, 4 Vet. App. 136, 140 (1993) [while a SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a veteran's claim]. Indeed, the veteran himself through counsel has specifically argued that his cervical spine disability warrants the assignment of a 60 percent schedular rating under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). The veteran has also contended that he is entitled to TDIU. [In addition to the cervical spine disability, service connection is in effect for frostbite residuals, and the veteran is also seeking entitlement to service connection for depression, claimed as secondary to the service-connected cervical spine disability. As set forth below, these issues are being remanded.] The Board intimates no opinion, legal or factual, as to the outcome warranted with respect to the TDIU claim, which involves the application of different law and regulation, and it makes no comment concerning Dr. B.'s evaluation of the veteran within the context of the pending TDIU claim. ORDER Entitlement to a 60 percent disability rating for the cervical spine disability is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND 2. Entitlement to service connection for major depression, claimed as secondary to the service-connected cervical spine disability. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). For reasons expressed immediately below, the Board finds that these two issues must be remanded. In a May 2004 letter, the veteran's attorney requested that VA obtain records of private psychiatric treatment from E.C.L., III, M.D. In an October 2002 letter, Dr. L. noted that the veteran had been under his care for over four years. All records from Dr. L. are not yet associated with the record on appeal. A request for the veteran's medical records must be made, and if such are not furnished directly to VA by Dr. L., the veteran and his attorney should be so notified and accorded to opportunity to submit them. With resect to the TDIU claim, the Board finds that such claim is inextricably intertwined with the claim of entitlement to service connection for depression. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other in the prescribed degree should not be subject to piecemeal decision-making or appellate litigation]. Action on the TDIU issue is deferred pending resolution of the RO of the other matters referred to herein. Accordingly, this case is REMANDED to the Veterans Benefits Administration (VBA) for the following actions: 1. After obtaining any necessary authorization for the release of information, VBA should contact E.C.L., III, M.D, and request copies of all treatment records pertaining to the veteran. If such records are not obtained by VA, the veteran should be accorded reasonable opportunity to submit such records himself. 2. After undertaking any additional development which it deems to be necessary, BVA should readjudicate the remaining tow issues on appeal. If the benefits sought are not granted in full, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded appropriate opportunity to respond. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs