Citation Nr: 1124646 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 10-45 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to a rating in excess of 30 percent for the Veteran's service-connected post-concussive syndrome. 2. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected low back disorder. 3. Entitlement to a separate compensable rating neurologic manifestations of the Veteran's service-connected low back disorder, claimed as sciatica. ATTORNEY FOR THE BOARD B. Diliberto, Associate Counsel INTRODUCTION The Veteran had active service from August 1976 to December 1976 and from May 1985 to August 1999. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. The issue of entitlement to a separate compensable rating for neurologic manifestations of the Veteran's low back disorder, claimed as sciatica, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's traumatic brain injury residuals, characterized as post-concussive syndrome, have been manifested as three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships; including intermittent dizziness, headaches, insomnia and memory problems. 2. The Veteran's service-connected low back disorder has not been manifested by forward flexion limited to 60 degrees or less, a combined range of motion limited to 120 degrees or less, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour, any form of ankylosis or any incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for residuals from a traumatic brain injury have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124(a), 4.129, Diagnostic Codes 8045 (2010). 2. The criteria for a disability rating in excess of 10 percent for a low back disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5237 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was met by way of letters from the RO to the Veteran dated April 2009, September 2009 and June 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the United States Court of Appeals for Veterans Claims (Veterans Court), in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), clarified VA's notice obligations in increased rating claims. The Federal Circuit recently reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual veterans or to notify them that they may present evidence showing the effect that worsening of a service-connected disability has on their employment and daily life for proper claims adjudication. For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009 (holding that notice specific to individual Veterans is no longer required in increased compensation claims). The Board notes that RO correspondence did not satisfy all the requirements outlined in Vazquez-Flores. However, in this case, the Board finds that the notice error did not affect the essential fairness of the adjudication. In several written statements the Veteran has reported the symptoms that he experiences and the effects that they have on him. Furthermore, the Statement of the Case (SOC) issued in July 2010 informed the Veteran of the applicable diagnostic criteria and the reasons for denying the claim. This was followed by a readjudication in a February 2011 Supplemental Statement of the Case. Accordingly, the notice timing error did not affect the essential fairness of the adjudication. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and have not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. The Veteran has been afforded several VA examinations during the pendency of the appeal. The Board acknowledges that the Veteran has stated that these examinations were not adequate. He has stated that the examiner was unfriendly, abrupt and incomplete. However, there is no competent evidence that any necessary testing was not conducted and the examination reports, except as indicated in the remand portion of this decision, provide all necessary information to rate the Veteran's disabilities at issue in this appeal. The reports of these examinations reflect that the examiners reviewed the pertinent medical records, recorded the Veteran's current complaints, conducted appropriate physical examinations and provided all findings necessary to decide the claims on appeal. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board accordingly finds that the RO has satisfied the duty to notify and the duty to assist and will proceed to the merits of the Veteran's appeal. The Veteran asserts that the rating evaluations assigned for his service-connected post-concussive syndrome and low back disorders do not accurately reflect the severity of those conditions. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected condition adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ranges. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinksi, 1 Vet. App. 589 (1991). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required by that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. Ap. 119 (1999). Post-Concussive Syndrome The Veteran first claimed entitlement to service connection for residuals of an injury to his head in April 1999. The RO issued a rating decision in April 2000 granting entitlement to service connection for post-concussive syndrome, and assigning a rating evaluation of 10 percent, effective from September 1, 1999, the day after the Veteran's release from active service. That rating was assigned under Diagnostic Code 8045, for post-concussive syndrome. In July 2001 the RO proposed to reduce the Veteran's rating. In response, in August 2001, the Veteran claimed entitlement to a rating in excess of 10 percent, asserting that his symptoms were worse than previously indicated. In a November 2001 rating decision the RO granted entitlement to a 30 percent rating, effective from August 29, 2001, the date of the Veteran's increased rating claim. In that decision the RO noted that it was assigning that rating under Diagnostic Code 9304, for dementia due to head trauma. In March 2009 the Veteran again claimed entitlement to an increased rating. A November 2009 rating decision denied entitlement to a rating in excess of 30 percent. The Veteran submitted a Notice of Disagreement (NOD) with that rating decision in February 2010. The RO issued a Statement of the Case (SOC) in July 2010 and the Veteran filed a Substantive Appeal (VA Form 9) in September 2010. The Board recognizes that the regulations pertaining to rating traumatic brain injuries were amended in September 2008. 73 Fed. Reg. 54,693-706 (Sept. 23, 2008). These amendment revise 38 C.F.R. § 4.124a, Diagnostic Code 8045 and are effective October 23, 2008. The amendment applies to all applications for benefits received by VA on or after October 23, 2008. VA's Schedule for Rating Disabilities; Evaluation of Residuals of Traumatic Brain Injury (TBI), 73 Fed. Ref. 54,693 (September 28, 2008) (to be codified at 38 C.F.R. pt. 4). The Board notes that where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent congressional intent to the contrary. However, in this case, the Veteran did not file his claim for an increased rating until March 2009. Accordingly, the Veteran's increased rating claim will be evaluated under the regulations effective from October 23, 2008. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residuals with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Evaluation of emotional/behavioral dysfunction is done under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorder) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Evaluation of physical (including neurological) dysfunction is based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorder, and dysarthia; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluation should be performed under the most appropriate diagnostic code. Each condition should be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and the evaluations for each separately rated condition should be combined under 38 C.F.R. § 4.25. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc., should also be considered. For the evaluation of cognitive impairment subjective symptoms the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from zero to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," an overall percent evaluation based on the level of the highest facets is assigned as follows: zero = zero percent; one equals ten percent; two equals forty percent; and three equals seventy percent. For example, a seventy percent evaluation is assigned if "3" is the highest level of evaluation for any facet. Note (1) accompanying this diagnostic code stated that there may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a co-morbid mental or neurologic or other physical disorder that can be separately valuated under another diagnostic code. In such cases, only one evaluation should be based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions should be performed. However, if the manifestations are clearly separable, a separate evaluation for each condition should be assigned. Note (2) states that symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3) states that "instrumental activities of daily" living refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4) states that the terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. That classification does not affect the rating assigned under Diagnostic Code 8045. Note (5) states, as is indicated above, that a veteran whose residuals of TBI are rated under a version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. The relevant evidence of record consists of VA examination reports and written statements from the Veteran and other individuals. In an extensive written statement from May 2009 the Veteran reported that since his concussion accident in 1999 he has had a difficult time with short-term memory, an inability to learn, irritability, anxiety, problems with communication, problems with his eye sight, insomnia, headaches, poor judgment and depression. The Veteran was afforded a VA examination in support of his claim in September 2009. During that examination the Veteran reported that he began experiencing headaches after his head injury. He stated that these occur daily and last for hours, with a severity of 5/10. He indicated that he has not been incapacitating by these headaches and that medication has been effective at treating them. The Veteran denied having problems with dizziness, vertigo, weakness, paralysis, fatigue, malaise, mobility/balance, bowel/bladder incontinence, numbness, paresthesias, taste/smell, seizures, speech or swallowing. The Veteran also denied symptoms of autonomic dysfunction, endocrine dysfunction or cranial nerve dysfunction. Sleep, hearing and vision problems were indicated. The examiner noted that the Veteran was a truck driver and that he reported no problems working due to headaches. Physical examination revealed that the Veteran was oriented in all spheres. Motor function was normal and no muscle atrophy was indicated. Sensory function was within normal limits, as was the Veteran's gait. There was no indication of endocrine dysfunction or autonomic dysfunction. The examiner diagnosed the Veteran with post-concussive syndrome with no complaints of residuals except laceration. She also stated that the Veteran's headaches and erectile dysfunction are not likely secondary to the Veteran's head injury. The Veteran was afforded an additional VA examination in November 2009. A vision exam indicated that there was no ocular evidence of TBI problems. Myopic astigmatic presbyopia was diagnosed, but the examiner stated that this was a refractive error not caused by external influences or the Veteran's time in service. An audiological examination indicates that the Veteran was diagnosed with tinnitus that the Veteran stated he thought was due to his in-service accident until the examiner reminded him that he reported "recent onset tinnitus, onset with aspirin" in 2006. During a mental health examination the Veteran reported that he has not had "clear thinking" since his in-service head injury. He stated that he feels as if his memory and ability to process information has decreased. He stated that this includes an inability to operate a computer efficiently, an inability to operate his CD recording machines, an inability to learn to play musical instruments, an inability to lean no skills efficiently, an inability to concentrate, being easily distracted, living in a state of continuous mild depression, an inability to experience joy, continuous irritability, experiencing anxiety when encountering stressful situations, speaking with a "slur", poor pronunciation, trouble expressing himself and poor social skills. The Veteran also stated that he has had daily headaches since the incident lasting 10-20 seconds to a few hours. He stated that if he moves too quickly he is briefly dizzy. He also reported difficulty falling asleep and mental fatigue. There was no report of weakness, paralysis, malaise or balance problems. With regard to memory impairment the Veteran stated that he forgets the names of things and people, as well as many other things. The examiner noted that the Veteran does not always clearly pronounce his "r's", but that this was not immediately obvious and that the Veteran was comprehensible. The examiner stated that judgment, visual spatial orientation and consciousness were normal. She also stated that the Veteran was able to communicate by spoken and written language and was able to comprehend the same. With regard to neurobehavioral effects, the examiner stated that the Veteran has one or more neurobehavioral effects that do not interfere with workplace or social interaction. With regard to social interaction, the examiner stated that social interaction is routinely appropriate. The examiner did state that the Veteran is occasionally disoriented to one of the four aspects (person, time, place, and situation), but that this problem is more likely than not related to normal processes and not related to the Veteran's head injury. The examiner also stated that she could not comment on the Veteran's memory, attention, concentration or executive functions without the results of neuropsychiatric testing, but that these problems were more like than not related to a pre-existing learning disability or emotional problems, which are not related to the Veteran's head injury. With regard to subjective symptoms the examiner noted that the Veteran had three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or relationships. These included intermittent dizziness, headaches, insomnia and memory problems. In his September 2010 Substantive Appeal (VA Form 9) the Veteran reiterated his statement that he speaks with a slur. In another written statement the Veteran stated that he felt the November 2009 VA examination was inadequate. He stated that while he did have depression prior to his 1999 head injury while in service it had subsided before that injury. He also stated that his difficulty learning did not predate his head injury. He reported that prior to the examiner he was well-rested and "perked up with caffeine." The Veteran has also submitted several written statements from other individuals, but these statements do not discuss the Veteran's reported TBI residuals other than to note that the Veteran has difficulty sleeping. Additional evidence submitted by the Veteran includes administrative paperwork and VA treatment records, but these records are not relevant to the Veteran's TBI symptomatology for the period on appeal. As stated above, the evaluation assigned is based on the highest level of severity for any facet of cognitive impairment and other residuals of traumatic brain injury not otherwise classified as determined on examination. A level of severity of "0" is assigned for the memory, attention, concentration and executive functions facet, as the November 2009 VA examiner determined that the Veteran's memory problems were more like than not related to a pre-existing learning disability or emotional problems, which are not related to the Veteran's head injury. A level of severity of "0" has been assigned for the judgment facet, indicating that an examiner has found evidence of normal judgment. A higher level is not warranted unless an examiner finds evidence of mildly impaired judgment. A level of severity of "0" has been assigned for the social interaction facet, indicating that an examiner has found evidence that social interaction is routinely appropriate. A higher level of severity of "1" is not warranted unless an examiner finds evidence that social interaction is occasionally inappropriate. A level of severity of "0" has been assigned for the orientation facet. While the November 2009 VA examiner did state that the Veteran is occasionally disoriented to one of the four aspects (person, time, place, situation), she indicated that this problem is more likely than not related to normal processes and not related to the Veteran's head injury. A level of severity of "0" has been assigned for the motor activity facet, indicating that an examiner has found evidence of normal motor activity. A higher level of severity of "1" is not warranted unless an examiner finds evidence such a motor activity normal most of the time, but mildly slowed at times due to apraxia. A level of severity of "0" has been assigned for the visual spatial orientation facet, indicating that an examiner has found evidence of normal spatial orientation. A higher level of severity is not warranted unless an examiner finds evidence such as mildly impaired spatial orientation, such as occasionally getting lost in unfamiliar surroundings or having difficulty reading maps or following directions. A level of severity of "1" has been assigned for the subjective symptoms facet, indicating that an examiner has found evidence of three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound or hypersensitivity to light. A higher level of "2" is not warranted unless an examiner finds evidence of three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days." A level of severity of "0" has been assigned for the neurobehavioral effects facet, indicating that an examiner has found evidence of one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. A higher level of "1" is not warranted unless an examiner finds evidence of one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction or both, but do not preclude them. A level of severity of "0" has been assigned for the communication facet, indicating that an examiner has found evidence that the Veteran was able to communicate by spoken and written language and able to comprehend spoken and written language. A higher level of severity is not warranted unless an examiner finds evidence occasional impairment in this regard. Although the Veteran reported having slurred speech and the examiner noted that the Veteran does not always clearly pronounce his "r's", the examiner also noted that this was not immediately obvious and that the Veteran was comprehensible. As stated, the total evaluation assigned for TBI is based on the highest level of severity for any of the facets as determined by examination and only one evaluation is assigned for all the applicable facets. The evaluation assigned under the rating criteria effective from October 23, 2008, would not be greater than the 30 percent already assigned since the highest severity level assigned for any of the facets is "1". In the absence of evidence of more severe symptomatology associated with the Veteran's traumatic brain injury, a rating in excess of 30 percent is not warranted. The Board has considered whether a higher rating may be granted under any other diagnostic code. Specifically, the Board has considered whether a rating in excess of 30 percent may be assigned under Diagnostic Code 9304, for dementia due to head trauma. This is the diagnostic code under which the Veteran's current 30 percent rating was assigned. Under Diagnostic Code 9304 a 30 percent rating is warranted where there is 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, mild memory loss (such as forgetting names, directions, recent events). The next higher rating of 50 percent is for application 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; difficulty in establishing and maintaining effective work and social relationships. The Board has determined that a rating in excess of 30 percent is not warranted under this diagnostic code. As discussed in more detail above, the Veteran's symptomatology more closely corresponds with the criteria for the 30 percent rating. In exceptional cases, extraschedular ratings may be assigned. See 38 C.F.R. § 3.321(b)(1). The Board has considered assignment of an extra-schedular evaluation but the record does not show that the Veteran's appealed disability, alone, has required frequent hospitalization, or that manifestations of that disability have at any point exceeded those contemplated by the schedular criteria. Therefore, assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board notes that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating by reason of individual unemployability due to service-connected disability (TDIU) is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the record indicates that the Veteran is currently employed. Therefore, consideration of a TDIU is not warranted. A preponderance of the evidence is against a rating in excess of 30 percent for any time during the appeal period. Accordingly, the benefit-of-the-doubt doctrine does not apply and an increased rating must be denied. See 38 U.S.C.A. § 5107(b). Low Back Disorder As noted above, the Veteran has also claimed entitlement to a rating in excess of 10 percent for his service-connected low back disorder. The Veteran first claimed entitlement to service connection for a low back disorder in April 1999. An April 2000 rating decision granted entitlement to service connection for low back pain, assigning a 10 percent disability rating effective from September 1, 1999, the day after the Veteran's release from active service. In February 2006 the Veteran claimed entitlement to a rating in excess of 10 percent for his service-connected low back disorder. In a July 2006 rating decision the RO denied entitlement to a higher rating. The Veteran submitted a Notice of Disagreement (NOD) with that rating decision in August 2006. The RO issued a Statement of the Case (SOC) in April 2007, but the Veteran did not submit a timely Substantive Appeal (VA Form 9). In March 2009 the Veteran again claimed entitlement to a rating in excess of 10 percent for this service-connected low back disorder. In a November 2009 rating decision the RO denied entitlement to a rating in excess of 10 percent. The Veteran submitted a Notice of Disagreement (NOD) with that rating decision in February 2010. The RO issued a Statement of the Case (SOC) in July 2010 and the Veteran filed a Substantive Appeal (VA Form 9) in September 2010. The Veteran's service-connected low back disorder has been rated under 38 C.F.R. § 4.119. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); 5243 Intervertebral disc syndrome. The general rating formula provides for the following disability ratings for diseases or injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. It applies to Diagnostic Codes 5235 to 5243 unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For purposes of this case, the Board notes that under the general rating formula for diseases and injuries of the spine, ratings are assigned as follows: 1) 10 percent - Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; 2) 20 percent - Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; 3) 30 percent - Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 4) 40 percent -- Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 5) 50 percent -- Unfavorable ankylosis of the entire thoracolumbar spine; and 6) 100 percent -- Unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The relevant evidence of record includes VA treatment records, VA examination reports and written statements from the Veteran and other individuals. In a May 2009 letter the Veteran stated that his low back disorder has a profound impact on his life. He stated that he must use back support while driving and that his activities are limited due to constant back pain. He also stated that he is unable to sleep on his back and cannot stand still for periods in excess of five minute and has difficulty bending over or turning sideways. Another May 2009 written statement indicates the Veteran's belief that he has sciatica. He stated that his most severe complaint is the uncomfortable sensation he experiences in his buttocks and legs. He indicated that he is unable to engage in highly physical activities and that his ability to physical labor is sharply limited. In September 2009 the Veteran was afforded a VA examination in support of his claim. During that examination the Veteran reported having chronic low back pain which radiates intermittently to both heels. He stated that the pain averages 4 out of 10, with rare flare-ups last 30 minutes being 5 out of 10. He indicated that flare-ups are caused by sitting for longer than 20 minutes or standing for a few minutes. He stated that he is able to walk as far as he wants without pain and did not indicate having any incapacitating episodes in the past 12 months. The examiner noted that the Veteran is able to perform activities of daily living independently, but that he has problems with his back when bending. Physical examination revealed normal strength and sensation and a steady gait. Palpation of the spine did not elicit pain and there no muscle spasms were evidence. Range of motion studies revealed flexion to 80 degrees with pain thereafter, extension to 30 degrees without pain, lateral flexion to 30 degrees bilaterally without pain and rotation to 30 degrees bilaterally without pain. Radiographic imagery indicated six non-rib bearing vertebral bodies with partial lumbarization of S1 with rudimentary S1-2 disk space. Mild diffuse spondylosis was noted. Significant spondylosis at T11-12 was noted. No alignment abnormality was identified. The examiner's diagnosis was spondylosis T11-12. In a December 2009 written statement the Veteran reported that he uses an 18 inch shoe horn to put on his shoes and that he uses a TENS unit. He also reported that the range of motion studies indicated in the September 2009 VA examination were inaccurate. He indicated that while he can walk and move around fine he is only able to stand rigidly for a period of 30 to 60 seconds before his back becomes very painful. He also stated that, while working, he often has to stretch and move around and that he has a difficult time sleeping due to his back pain VA treatment records from July 2010 indicate that the Veteran report having continued back pain. He stated that he must sleep on his stomach and that his legs twitch. In September 2010 the Veteran submitted several written statements from other individuals wherein they stated that the Veteran wears a back brace, uses back support while driving, frequently talks about his back pain and has difficulty sleeping. Additional evidence submitted by the Veteran includes administrative paperwork and other treatment records, none of which address the Veteran's low back disorder symptomatology for the period on appeal. The evidence of record reflects that a rating in excess of 10 percent for the Veteran's service-connected low back disorder is not warranted for any time during the appeal period. Specifically, the medical evidence does not demonstrate that forward flexion of the Veteran's thoracolumbar spine was limited to 60 degrees or less. Furthermore, the evidence does not indicate a combined range of motion of the thoracolumbar spine of less than 120 degrees, or guarding severe enough to result in an abnormal gait or abnormal spine contour such as scoliosis, reverse lordosis or abnormal kyphosis. Additionally, the Veteran's symptoms of pain, weakness, fatigability, instability and weight-bearing were not severe enough to cause impairment warranting a higher rating, even when accounting for symptoms during flare-ups. The Board does acknowledge that the Veteran has chronic low back pain, and thus recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and the DeLuca case. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These additional limitations are taken into consideration by the ratings assigned, and even accounting for that limitation the Veteran's degenerative disc disease does not warrant a higher evaluation. In so finding, the Board notes that the VA examiner specifically noted the point of onset of painful motion, and those points were considered as the extent of motion. The regulations also mandate that a separate rating should be considered for any associated objective neurologic abnormalities of the disability under an appropriate diagnostic code. 38 C.F.R. § 4.71a. As the precise nature of any neurologic abnormalities associated with the Veteran's low back disorder is still unclear the Board has remanded this portion of the claim as indicated below. Accordingly, further discussion of the potential applicability of 38 C.F.R. § 4.71a is not necessary. Finally, the Board notes that a higher rating of 20, 40 or 60 percent may be assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, of at least 4 weeks but less than 6 weeks during the past 12 months, or of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2010). As noted above, there is no evidence that a physician has ever ordered bed rest due to the Veteran's back problems. In exceptional cases, extraschedular ratings may be assigned. See 38 C.F.R. § 3.321(b)(1). The Board has considered assignment of an extra-schedular evaluation but the record does not show that the Veteran's appealed disability, alone, has required frequent hospitalization, or that manifestations of that disability have at any point exceeded those contemplated by the schedular criteria. Therefore, assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board notes that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating by reason of individual unemployability due to service-connected disability (TDIU) is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the record indicates that the Veteran is currently employed. Therefore, consideration of a TDIU is not warranted. A preponderance of the evidence is against a rating in excess of 10 percent for any time during the appeal period. Accordingly, the benefit-of-the-doubt doctrine does not apply and an increased rating must be denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to a rating in excess of 30 percent for the Veteran's service-connected post-concussive syndrome is denied. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected low back disorder is denied. REMAND As discussed above, the Veteran has also claimed entitlement to service connection for sciatica. The Board has deemed this a request for a separate compensable rating for neurological manifestations associated with his service-connected low back disorder. In this regard, the Board notes that the Veteran has consistently reported pain radiating from his low back down into his legs. Pursuant to the rating schedule, associated neurologic abnormalities are to be separately evaluated. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). A review of the claims file reveals that further action on the claim is necessary prior to final appellate review on this particular issue. Specifically, the Board finds that the precise nature and extent of the Veteran's neurological abnormalities associated with his service-connected low back disorder are still unclear. As such, a VA examination is necessary in order to determine the extent and nature of any such neurologic abnormalities. In order to give the Veteran every consideration with respect to the present appeal, further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., and the Veteran will be notified when further action on his part is required. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and ask him to provide information on any private treatment records related to his claimed sciatica. If the Veteran indicates that he has received any treatment or evaluations, the RO/AMC should also obtain and associate those records with the claims file. In addition, the RO/AMC should obtain any VA treatment records from after July 2010 and associate those with the claims file. 2. Thereafter, the RO/AMC should schedule the Veteran for an appropriate examination to determine the current nature and severity of any neurologic manifestations of his service-connected low back disorder, including the Veteran's claimed sciatica. The claims file must be provided to the examiner for review. The examiner should identify all chronic neurologic manifestations of the Veteran's service-connected low back disorder, and provide findings and opinions on the level of severity (i.e., slight, moderate, moderately severe, severe) of each of those manifestations. A complete rationale must be provided for any opinions expressed. 3. When the requested development has been completed the case should again be reviewed by the RO, to include consideration of any additional evidence submitted. If the benefits sought are not granted the Veteran should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs