Citation Nr: 0815161 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 04-25 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent, prior to September 19, 2007, and a rating in excess of 20 percent, effective September 19, 2007, for a low back disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). 3. Whether the claim of entitlement to a total rating for compensation purposes based on individual unemployability should be referred to the Director, Compensation and Pension Service. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Snyder, Associate Counsel INTRODUCTION The veteran had active service from June 1946 to July 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of July 2002 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). For reasons which will become apparent below, the issues in appellate status are as characterized above. A motion to advance this case on the Board's docket was granted under the authority of 38 U.S.C.A. § 7102(a) (West 2002) and 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. Prior to September 17, 2007, the veteran's lumbar spine disability was not manifested by moderate limitation of motion, loss of lateral spine motion, flexion not greater than 60 degrees, combined range of motion not greater than 120 degrees, ankylosis, spasm, guarding, objective neurological deficits, "moderate" intervertebral disc syndrome (IDS) with recurring attacks, or physician- prescribed bedrest. 2. Since September 17, 2007, the veteran's lumbar spine disability has not been manifested by ankylosis, "severe" limitation of motion or limitation of flexion to at most 30 degrees, listing, a positive Goldthwaite's sign, marked limitation of forward bending in standing position, objective neurological deficits, doctor-prescribed bedrest, or "severe" IDS with recurring attacks with intermittent relief. 3. The veteran does not meet the schedular requirements for a TDIU. 4. The veteran's service connected disabilities are severe enough to suggest that that he is unable to obtain or retain gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to September 17, 2007, and a rating in excess of 20 percent, effective September 17, 2007, for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5293 (effective prior to September 23, 2002); 5286 to 5295 (effective prior to September 26, 2003); 5235 to 5243 (2007); DeLuca v. Brown, 8 Vet. App. 202 (1995). 2. The criteria for a TDIU rating have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16, 4.18, 4.19 (2007) 3. The criteria for the submission of the claim for a total rating for compensation purposes based on individual unemployability to the Director, Compensation and Pension Service, are met. 38 C.F.R. § 4.16(b) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). For an increased compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In October 2001 and March 2004, the agency of original jurisdiction (AOJ) sent letters to the veteran providing notice of what the evidence needed to demonstrate, of his and VA's respective duties in obtaining evidence, and of the types of relevant evidence that he should provide, or ask the VA to obtain for the claims for an increased rating and TDIU respectively. The March 2004 letter also specifically informed the veteran of the specific criteria for obtaining TDIU. In August 2007, the veteran was notified that disabilities are rated on the basis of diagnostic codes and was told of the need to present evidence to meet the rating criteria and to establish an effective date of an award. Although the March 2004 and August 2007 letters postdated the initial adjudications, the claims were subsequently readjudicated and no prejudice is apparent. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Additionally, the specific rating criteria for evaluating the lumbar spine disability and how (based on what symptomatology) each rating percentage is assigned were provided to the veteran in the May 2004 Statement of the Case and November 2007 Rating Decision (which granted a staged increase). Although the veteran was not sent an independent letter providing notice of this information, the records indicates that no prejudice resulted. The claim was readjudicated after this notice was provided, the veteran was able to effectively participate extensively in the appeals process, and the veteran had ample time to submit evidence. The evidence indicates that the veteran was fully aware of what was necessary to substantiate this claim. VA has also done everything reasonably possible to assist the veteran with respect to this claim, such as obtaining medical records and providing VA examinations. Consequently, the Board finds that the duty to notify and assist has been satisfied without prejudice. Lumbar Spine Disability For historical purposes, it is noted that service connection was established for traumatic arthritis of the lumbar spine by the RO in a January 1973 decision, based on evidence of in-service injury with intermittent complaints throughout the remainder of service and post-service X-ray findings, and a noncompensable disability evaluation was assigned based on a review of the relevant contemporaneous evidence of record. In October 2001, the RO received the veteran's claim for an increased rating for the low back disability. The rating was subsequently increased to 10 percent, effective the date of the claim, by the July 2002 Rating Decision. The veteran disagreed with this rating and perfected his appeal. In November 2007, the RO granted a staged increase to 20 percent, effective September 19, 2007. See November 2007 Rating Decision. Although the veteran's disability rating was increased, the veteran has not withdrawn his original appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the remaining issue before the Board is entitlement to increased ratings: in excess of 10 percent for the period of the claim prior to September 19, 2007; and, in excess of 20 percent for the period of the claim from September 19, 2007, forward. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. 38 C.F.R. § 4.14. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A relatively recent decision of the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. An August 2001 VA treatment record reports the veteran's history of chronic low back pain that radiated into the bilateral hips. The record veteran denied acute exacerbations, and the examiner found no weakness or other related neurological deficits. The record also reports the veteran's history of urinary hesitancy and decreased urinary stream/frequency, and the record notes a longstanding history of benign prostatic hypertrophy (BPH) and an assessment of hyperplasia of the prostate. Subsequent VA treatment records dating in November 2001 and January 2002 report the veteran's history of urinary and fecal incontinence, and the January 2002 VA treatment records report an assessment of high postvoiding residual and decreased contractility. The records do not report any findings as to a possible connection between the reported incontinence and the service- connected back disability. A March 2002 VA treatment record reports that the veteran had degenerative joint disease of the lumbar spine with spinal stenosis that was managed by muscle relaxants. The record notes that neurological examination results were grossly non- focal, radial and dorsalis pedis reflexes were present, and sensation was grossly intact per monofilament in the extremities. A May 2002 VA joints examination record reports the veteran's history of constant low back pain that radiated down the left leg to the foot and that made the veteran unable to bend or lift. The veteran also reported that he had bowel and bladder incontinence for five to six months which he reported had been attributed to his spine. Physical examination indicated that the veteran could forward bend to 70 degrees, extend to 20 degrees, and side bend and rotate to 30 degrees bilaterally. The veteran had full (5/5) strength in all muscle groups, 1+ and symmetric deep tendon reflexes, intact sensation, and negative straight leg raises. The examiner noted that X-ray images showed diffuse severe degenerative changes, and assessed the veteran with diffuse degenerative arthritis of the lumbar spine with spinal stenosis and resultant left radicular pain and bowel and bladder incontinence. The examiner noted, however, that he did not have any reports from other physicians to verify whether there was another cause (other than the low back disability) for the veteran's incontinence. A June 2002 VA genitourinary examination record reports the veteran's history of difficulty initiating the urinary stream and improper emptying. The examiner noted that the prostrate was enlarged, that urodynamics indicated a large bladder capacity with hypotonic component, high post-void residuals, and diminished bladder contractility. Additionally, a cystoscopy indicated that the veteran had a partial obstruction of the prostate. The examiner stated that apparently [the veteran] had a neurogenic component" and that the veteran's bladder was not emptying properly, which he believed "could be secondary to [the veteran's] obstruction of the prostate or a mixture of neurologic component and the prostrate obstruction." In July 2002, the May 2002 VA examiner submitted an addendum opinion as to whether the veteran's fecal or urinary incontinence was secondary to his lumbar spine disability. In regards to the fecal incontinence, the examiner stated that, based on the evidence of a normal sphincter tone (reported in the June 2002 examination record) and the past findings of hernia and diverticular disease, he did not believe that any type of fecal incontinence or constipation was secondary to the spinal pathology. As for the urinary incontinence, the examiner noted that a genitourinary examination showed a mixed neurogenic, as well as benign prostatic hypertrophy, to be the contributing components to the veteran's urinary incontinence. The examiner stated that it appeared that the veteran's urinary incontinence was due to a mixed etiology and that there was a neurologic component to the incontinence, but that it would be difficult to determine a percentage as to how much the neurologic component contributed to the incontinence. Additionally, he stated that the veteran does have a neurogenic bladder with diminished contractility that was most likely secondary to the spinal stenosis and nerve impingement. He added that there was also a component of partial obstruction by the prostate of about 50 percent, which could contributed to some of the urinary incontinence and bladder contractility problems. A January 2003 VA treatment record reports the veteran's history of constant back pain that radiated down the legs. The veteran reported that the pain was exacerbated by standing and walking. The veteran reported having fecal incontinence due to sphincter insufficiency and denied urinary incontinence issues, though he reported that he self- catheterized occasionally secondary to a dystonic bladder. Sensation was intact, and reflexes were present. A May 2003 VA cystoscopy record reports that the bladder neck was partially obstructed by the middle prostatic lobe. The veteran was diagnosed with BPH with lower urinary tract symptoms, and the examiner stated that he did not understand why the veteran was advised to self-catheterize. December 2003 VA treatment records reports that the veteran's back was tender to palpation over the paravertebral musculature with no trigger points. There was exquisite pain to palpation, ballottement of the left sacroiliac joint, and pain and stiffness to facet loading. The veteran could straight leg raise to 10 degrees bilaterally and motor function was 5/5 in both lower extremities. Reflexes were full and symmetrical at the knee and ankle, and the neurological system was grossly intact. X-ray images showed advanced discogenic and facet joint degenerative changes, which resulted in focal secondary canal stenoses. The veteran was diagnosed with sacroiliitis, facet arthropathy, lumbar radiculopathy, and spinal stenosis. A September 2007 VA examination record reports the veteran's negative history as to urinary incontinence, fecal incontinence, and leg or foot weakness. The veteran did report a history of numbness and paresthesias, however, as well as fatigue, decreased motion, stiffness, weakness, spasm, and pain, and the veteran reported having 60 incapacitating episodes in the previous twelve months. The examiner noted that the veteran used a cane, had a stooped posture, and had an antalgic gait. Additionally, the examiner noted that the veteran had spasm, tenderness, weakness, and guarding in the thoracic sacrospinalis, but no atrophy or abnormal spinal curvature. Motor examination revealed full, or near full, strength throughout both lower extremities and normal muscle tone. Sensory examination revealed that sensation was intact bilaterally, reflexes were present, and the Lasegue's sign was negative. Range of motion testing indicated flexion was limited to 60 degrees actively and 75 degrees passively, with pain beginning at 30 degrees. Extension was limited to 20 degrees actively and 30 degrees passively, with pain beginning at the end degree. Passive and active lateral flexion and rotation was to 30 degrees bilaterally, with pain beginning at 15 degrees. There was no pain after repetitive use and no additional loss of motion after repetition for any of the tested motion. The record notes that computerized tomography (CT) scan showed degenerative spondylolisthesis with significant arthritis and stenosis, and the examiner diagnosed the veteran with degenerative spondylolisthesis with stenosis and radicular pain. The examiner stated that the low back disability resulted in mild impairment of bathing, dressing, toileting, and grooming; moderate impairment of chores, shopping, recreation, and travelling; and total impairment of sports and exercise. The examiner opined that "overall, the veteran is moderately disabled due to his back condition." During the pendency of this appeal, the rating criteria for evaluating intervertebral disc syndrome (IDS) were amended (effective September 23, 2002) and the criteria for evaluating general diseases and injuries of the spine were amended (effective September 26, 2003). The Board is required to consider the claim in light of both the former and revised schedular rating criteria to determine whether an increased evaluation for the veteran's degenerative disc disease of the cervical spine is warranted. VA's Office of General Counsel (OGC) has determined that the amended rating criteria, if favorable to the claim, can be applied only for periods from and after the effective date of the regulatory change. See VAOPGCPREC 3-2000. What remains unclear, however, is whether the "old" criteria can be applied prospectively, although the OGC, in VAOPGCPREC 7-2003 seems to indicate (this opinion is not entirely clear) that VA is no longer obligated to apply superseded rating schedule provisions prospectively for the period subsequent to the issuance of the revised rating criteria. In any event, and given the confusing nature of this opinion, the Board, in giving the veteran all due consideration, will apply the old criteria prospectively. Prior to September 17, 2007 Prior to September 17, 2007, the veteran is rated under Diagnostic Code (DC) 5010-5295 for painful motion that is otherwise noncompensable under the limitation of motion rating criteria. The "old" rating criteria provide higher ratings for ankylosis (DC 5286) and lumbosacral strain with muscle spasm on extreme forward bending and loss of lateral spine motion, unilateral, in standing position (DC 5295). A higher rating is not warranted under either DC 5289 or DC 5295 as there is no evidence indicating that the veteran has ankylosis, spasm, or loss of lateral spine motion. The "old" rating criteria also provide a 20 percent rating for moderate limitation of motion of the lumbar spine under DC 5292. In determining the appropriate rating for limitation of motion, consideration must be made of any functional loss due to flare-ups, fatigability, incoordination, weakness, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995); 38 C.F.R. §§ 4.40, 4.45. The September 2003 amendments included a provision of the "normal" range of motion for the lumbar spine. See Plate V, 38 C.F.R. § 4.71a (2006) (normal range of motion is from zero to 90 degrees for forward flexion, zero to 30 extension, lateral flexion, and rotation). Although the substantive change in regulations from September 2003 cannot be used to evaluate the veteran's level of disability prior to the change, the range of motion measurements from Plate V are instructive in understanding the given range of motion measurements and how they relate to the terms used in the earlier rating criteria-"moderate" or "severe." The evidence dating prior to September 17, 2007, indicates that the veteran has full lateral flexion and rotation and near-full extension and forward flexion. Although the evidence indicates the veteran's history of constant pain, including radicular pain, the Board finds that the veteran's range of motion is too significant to approximate anything more severe than "mild" limitation of motion. Additionally, a higher rating is not warranted under the "new" rating criteria for the spine, which provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees without consideration of symptoms such as pain, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees without consideration of symptoms such as pain, 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. The veteran is not entitled to an increased rating under the new general rating formula (DC 5237) as he can flex his cervical spine beyond 60 degrees and has a combined range of motion in excess of 120 degrees, and the record contains no positive findings as to spasm, guarding, abnormal gait, or abnormal spinal contour An increased rating is also not available by combining separate ratings for limitation of motion and objective neurological abnormalities, as provided by the General Rating Formula of the Spine, Note (1). The VA treatment and examination records report no neurological deficit as to strength, sensation, or reflex. Additionally, although the records report the veteran's history of fecal incontinence secondary to his low back disability, the treatment records do not corroborate this assertion; instead, the fecal incontinence has been linked to sources other than the lumbar spine pathology. Finally, the Board also finds that a separate rating is not warranted for the veteran's urinary incontinence. The Board notes that the May 2002 VA examiner found that the veteran's urinary incontinence was at least partially due to a neurogenic bladder, which he stated was most likely due to the lumbar spine disability. The other evidence of record indicates that the veteran does not have a neurogenic bladder, however, and does not suggest that the urinary incontinence is related to the low back disability. In either event, service connection has long been established for prostatitis, evaluated as 10 percent, and evaluating this disability takes into consideration bladder impairment, to include incontinence. As such, increasing the evaluation assigned for the veteran's low back disability by considering urinary incontinence would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. Finally, a higher rating is also not warranted by rating the veteran under the "old" or "new" rating criteria for intervertebral disc syndrome (IDS). The "old" (pre- September 23, 2002) IDS rating criteria provide a 20 percent rating for "moderate" IDS with recurring attacks. The "new" IDS rating criteria provide a 20 percent rating for IDS with incapacitating episodes, defined as an episode requiring physician-prescribed bed rest, having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5293 (2002); 38 C.F.R. § 4.71a, DC 5243 (2007). Initially the Board notes that a higher rating is not warranted under the "new" IDS rating criteria as the evidence includes no evidence of "incapacitating episodes" as defined by VA regulation; there is no evidence of any doctor-prescribed bedrest A higher rating is also not warranted under the "old" IDS rating criteria. Although the records report the veteran's history of chronic pain with radiation down the left side, the VA medical records consistently report no findings of spasm or atrophy, and normal findings for sensation, reflexes, strength, and motor function, Additionally, the record includes no assessments of "moderate" cervical radiculopathy or IDS. Based on the foregoing, the Board finds that the evidence does not most nearly approximate "moderate" IDS during this period. Effective September 17, 2007 Effective September 17, 2007, the veteran's low back disability is rated under the "new" DC 5242. The "new" rating criteria for the spine provide ratings in excess of 20 percent for limitation of forward flexion of the cervical spine to less than 15 degrees or ankylosis. The veteran is not entitled to an increased rating under the new general rating formula as he can flex his cervical spine beyond 15 degrees (even when considering pain) and is not noted to have ankylosis. An increased rating is also not available by combining separate ratings for limitation of motion and objective neurological abnormalities, as provided by the General Rating Formula of the Spine, Note (1). Although the September 2007 examination record reports that the veteran has radiculopathy, spasm, and a history of weakness, the neurological examination was "normal," with full or near- full motor strength, normal muscle strength, intact sensation, present reflexes, and no evidence of muscle atrophy or urinary and bowel incontinence. The records report no medical diagnosis of any objective neurological abnormality associated with the low back disability which may be separately evaluated so as to increase the overall evaluation. A higher rating is also not warranted under the "old" rating criteria. The "old" DC 5295 provides a 40 percent rating for severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. The evidence of record does not indicate that the veteran has severe lumbosacral strain. The medical evidence contains no findings of listing, a positive Goldthwaite's sign, marked limitation of forward bending (see discussion infra), or loss of lateral motion. Additionally, the evidence indicates that the 2007 VA examiner described the veteran's low back disability as "moderate" and the evidence does not otherwise indicate that the symptomatology is "severe." Consequently, a higher rating is not warranted under the "old" DC 5295. The "old" rating criteria also provide rating in excess of 20 percent for severe limitation of motion of the lumbar spine (DC 5292) and ankylosis (DC 5289), and as stated above, in determining the appropriate rating for limitation of motion, consideration must be made of any functional loss due to flare-ups, fatigability, incoordination, weakness, and pain on movement. See DeLuca, 8 Vet. App. 202, 206-7 (1995); 38 C.F.R. §§ 4.40, 4.45. Initially, the Board notes that there are no findings of ankylosis; rather, the evidence indicates that the veteran has range of motion in the lumbar spine. Additionally, the evidence does not indicate that the veteran has "severe" limitation of motion. There are no findings of "severe" functional limitation, and although the 2007 VA examination record reports that there is limitation of motion due to pain, the veteran's pain-free range of motion is too significant to approximate "severe" limitation of motion. Consequently, a higher rating is not warranted under the "old" rating criteria. A higher rating is also not warranted under the "old" or "new" rating criteria for intervertebral disc syndrome (IDS). The "old" (pre- September 23, 2002) IDS rating criteria provide a 40 percent rating for "severe" IDS with recurring attacks and intermittent relief. The "new" IDS rating criteria provide a 40 percent rating for IDS with incapacitating episodes, defined as an episode requiring physician-prescribed bed rest, having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5293 (2002); 38 C.F.R. § 4.71a, DC 5243 (2007). Initially the Board notes that a higher rating is not warranted under the "new" IDS rating criteria as the evidence includes no evidence of "incapacitating episodes" as defined by the VA regulation; there is no evidence of any doctor-prescribed bed rest. A higher rating is also not warranted under the "old" IDS rating criteria. Although the records report the veteran's history of chronic pain with radiation down the left side and flare-ups, the September 2007 VA examination record reports negative histories as to incontinence and weakness, and negative findings as to absent reflexes, diminished sensation, or atrophy, and motor strength was full or near- full. Additionally, the record includes no assessments of "severe" cervical radiculopathy or IDS. Based on the foregoing, the Board finds that the evidence does not most nearly approximate "severe" IDS during this period. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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). The veteran does not meet the schedular requirements for consideration of a TDIU. Prior to May 15, 2002, the veteran is service connected for arthritis of the lumbar spine (10 percent), tinnitus (10 percent), and hiatal hernia (noncompensable) with a combined rating of 20 percent. Effective May 15, 2002, the veteran is service connected for arthritis of the lumbar spine (10 percent, and then 20 percent effective September 17, 2007), tinnitus (10 percent), hiatal hernia (noncompensable), bilateral hearing loss (10 percent), residuals of fracture of the minor clavicle (10 percent), and a deviated nasal septum (10 percent) with a combined rating of 50 percent. Because the veteran's combined rating never reached 70 percent, TDIU is only available if the veteran has been rendered unemployable solely due to the service-connected disability regardless of the total rating percentage currently assigned. In other words, TDIU is only available if an extraschedular rating is warranted. Entitlement to TDIU on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities, and consideration is given to the veteran's background including his employment and educational history. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra- schedular consideration all cases of veterans, who are unemployable due to service-connected disability, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b). Unlike the criteria for an extraschedular rating under 38 C.F.R. § 3.321, the grant of an extraschedular rating for TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (1996). This means that the Board should take into account the veteran's specific circumstances including his disability, education, and employment history when determining if he is unable to work. The veteran essentially contends that his service connected lumbar spine disability prevents him from working. The evidence of record indicates that the veteran worked as an industrial security specialist until June 1990, when he retired. A May 2002 VA examination record reports the veteran's history of not looking for further employment due to all of his disabilities, and the examiner stated that "it would be difficult for [the veteran] to obtain gainful employment." Additionally, a September 2007 VA examiner opined that the veteran was "moderately disabled due to his back condition" and "likely was not employable due to severe pain and lack of mobility." The examiner stated that a sedentary job would also be difficult because the veteran was not able to sit for even small periods of time. Where there is plausible evidence that a veteran is unable to secure and follow a substantially gainful occupation, without any affirmative evidence to the contrary, the veteran's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Compensation and Pension Director. Based on the evidence above, it is clear that such referral is warranted. At this point, the Board will not make a decision regarding the veteran's claim for a total rating for compensation purposes based on individual unemployability under 38 C.F.R. § 4.16(b), as we are not permitted to do so. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, the Board finds that this matter should have been submitted to the Compensation and Pension Director for extraschedular consideration under § 4.16(b). In this regard, the appeal is granted. Id. At this point, this claim will necessarily be REMANDED to the RO for further action consistent with this decision. ORDER A rating in excess of 10 percent prior to September 17, 2007, and a rating in excess of 20 percent effective September 17, 2007, for a low back disability have been denied. A total rating for compensation purposes based on individual unemployability under 38 C.F.R. § 4.16(a) is denied. Submission of a claim for a total rating for compensation purposes based on individual unemployability under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service, is warranted. REMAND Given the above decision on the TDIU claim, this matter is remanded to the Appeals Management Center (AMC) for the following action: The AMC should submit the claim for a total rating for compensation purposes based on individual unemployability under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service. The AMC should follow the dictates of § 4.16(b) in making this submission. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs