Citation Nr: 1300515 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-09 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an increased evaluation for herniated nucleus pulposus at L-5, currently evaluated as 20 percent disabling (lumbar spine disability). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1992 to March 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction over the case was subsequently transferred to the RO in Wichita, Kansas. The case was remanded in December 2011 in order to schedule the Veteran for a hearing before the Board. It has since been returned to the Board for appellate review. The Veteran was scheduled for Board hearings at the RO in April 2010 and January 2011, but he requested that these hearings be rescheduled. Because he provided good cause on both occasions, the Board granted the Veteran's request, and the hearings were rescheduled. However, the Veteran failed to report again for the rescheduled August 2012 hearing without explanation, and he has not requested that it be rescheduled. Therefore, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704 (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues decided herein. The issue of entitlement to TDIU will be addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's herniated nucleus pulposus at L-5 is not productive of forward flexion of the thoracolumbar spine to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent herniated nucleus pulposus at L-5 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5242, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 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. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided the Veteran with a notification letter in April 2007, prior to the initial decision on the claim in July 2007, as well as in July 2008. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The April 2007 notice letter notified the Veteran that, to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Both the April 2007 and July 2008 letters provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) relevant to establishing entitlement to increased compensation. Specifically, he was informed in the notice letters of types of evidence that might show such a worsening, including information about on-going treatment, Social Security Administration determinations, statements from employers, and lay statements from people who have witnessed how the disability symptoms affect him. In addition, the April 2007 notice letter informed the Veteran of the division of responsibilities in obtaining the evidence to support his claim. The April 2007 and July 2008 letters also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. He has not identified any available, outstanding records that are relevant to the claim decided herein. The Veteran was also afforded VA examinations in May 2007 and February 2009 in connection with his current claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on an examination, and fully address the rating criteria that are relevant to rating the disability in this case. The Board does observe that the examiners did not review the claims file in either instance; however, they did review the Veteran's own medical history and complaints, and they performed a physical examination that addressed all of the rating criteria. Indeed, the Court has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran throughout the course of this appeal by providing him with a statement of the case (SOC) and a supplemental statement of the case (SSOC), which informed him of the laws and regulations relevant to his claim. The Veteran was also offered three opportunities to provide testimony before the Board at a hearing. Although the first two hearings were rescheduled for good cause, the Veteran failed to appear at the third hearing without explanation. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lumbar Spine Disability The Veteran's service-connected lumbar spine disability is currently assigned a 20 percent disability evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Note (6). Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent disability evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. These criteria are applied with and 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. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For purposes of VA compensation, the regulations define normal range of motion for the thoracolumbar spine as 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, and a 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (2). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher disability evaluation for his service-connected herniated nucleus pulposus at L-5. In a December 2006 VA treatment record shortly before this claim, the Veteran was diagnosed with chronic mechanical back pain; spasm was noted but neurological examination did not reveal motor or sensory deficits or pathologic reflexes. In his January 2007 claim, the Veteran asserted that his lumbar spine disability had become more severe over the years. A January 2007 VA treatment record notes that x-rays yielded a finding of a normal oblique lumbar spine with no evidence of spondylolysis or indication of disc herniation. An April 2007 VA treatment record shows that the Veteran underwent an epidural block procedure to address ongoing complaints of low back pain. The Veteran was afforded a VA examination in May 2007 during which he complained of constant, aching pain that radiated from his right hip to his toes. He indicated that flare-ups occurred every two to three weeks, lasting one to two weeks; during flare-ups, he could not move due to pain. He also reported having symptoms of fatigue, decreased motion, stiffness, weakness, muscle spasm, numbness, and paresthesias, but he denied having bladder or bowel complaints, erectile dysfunction, and leg or foot weakness. The examiner noted that the Veteran was limited in some activities, such as sports and exercise, but he was able to perform activities of daily living without restriction. There was no history of hospitalization or surgery. On physical examination, range of motion testing revealed forward flexion to 70 degrees, with pain at 60 degrees and after repetitive use, extension to 30 degrees, left lateral flexion to 30 degrees with pain, right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. Repetitive motion did not increase the loss of range of motion. The examiner noted a normal posture and spine (symmetry in appearance; no curvature except lumbar flattening) with objective evidence of left-side painful motion, bilateral spasm and tenderness, but no objective evidence of atrophy, guarding, or weakness. Muscle spasm and tenderness were not severe enough to be responsible for abnormal gait or abnormal spinal contour. The examiner noted an antalgic gait and also made a notation that the Veteran had a splint and cane to treat a right lower extremity issue during the previous month, which limited his ability to ambulate normally. There was no ankylosis. Motor, sensory, and reflex examination yielded normal results. The examiner reviewed a March 2000 MRI report and noted the results in the examination report. An imaging study performed several days after the current VA examination revealed similar results from the March 2000 report of minimal bulging of the disc annulus in the midline at L4-L5 and L5-S1, which the radiologist noted should not be clinically significant. The remainder of the lumbar spine was within normal limits with some narrowing of the intervertebral space at L5-S1. The diagnosis was bulging of the disc at L4-L5 and L5-S1 and degenerative narrowing of the intervertebral space at L5-S1. In his July 2008 notice of disagreement, the Veteran continued to contend that his lumbar spine disability had significantly increased in severity. Another VA examination was conducted in February 2009. The Veteran reported that, in the last seven to eight months, his low back pain had increased in severity. When he attempted to lift objects over 30 pounds, he had a sharp pain that radiated to both hips, down to his knees. He used a cane three to four times a month when planning on prolonged walking. Flare-ups occurred every five to six months, lasting three to seven days; during flare-ups, he stayed in bed due to pain. He also reported having symptoms of stiffness and muscle spasm, in addition to pain. He reported that he had not sought treatment and instead Motrin with some relief. He denied having fatigue, decreased motion, weakness, numbness, paresthesias, bladder or bowel complaints, erectile dysfunction, and leg or foot weakness. The Veteran had no incapacitating episodes during the past twelve months with acute signs and symptoms due to intervertebral disc syndrome requiring bedrest prescribed by a physician or any such treatment. The examiner also noted similar physical limitations to those of the May 2007 examiner, in that the Veteran was limited in some activities, such as sports and exercise, but he was able to perform activities of daily living without restriction. On physical examination, range of motion testing revealed forward flexion to 60 degrees, extension to 25 degrees, left and right lateral flexion to 25 degrees, and left and right lateral rotation to 25 degrees, all with pain on motion. Repetitive motion did not increase the loss of range of motion. Following repetitive use, the Veteran was additionally limited by pain, but not other functional loss. The examiner noted a normal gait and spine (no curvature; symmetry in appearance) with objective evidence of bilateral painful motion, spasm, tenderness, and guarding, but no objective evidence of atrophy or weakness. Muscle spasm, tenderness, or guarding were not severe enough to be responsible for abnormal gait or abnormal spinal contour. There was no ankylosis. Motor, sensory, and reflex examination yielded normal results. The examiner noted that the Veteran failed to appear for a scheduled x-ray; additional attempts to contact him were unsuccessful. The diagnosis was degenerative disease of the lumbar spine with persistent decrease in range of motion of the lumbar spine In the Veteran's March 2009 substantive appeal (VA Form 9), he appears to indicate that his back became worse following the epidural shot treatment. He also reported experiencing difficulty with ongoing back pain resulting in days in which he remained in bed and that this limitation made it difficult to obtain and maintain a job. Based on the foregoing evidence, the Board finds that an evaluation in excess of 20 percent for the Veteran's lumbar spine disability is not warranted. The Veteran has not been shown to have forward flexion of the thoracolumbar spine 30 degrees or less. In fact, the May 2007 VA examination revealed forward flexion to 70 degrees, and the February 2009 VA examination showed forward flexion to 60 degrees. Moreover, the Veteran has not been shown to have favorable ankylosis of the entire thoracolumbar spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). Based on the aforementioned range of motion findings, it is apparent that the Veteran's spine is not fixated or immobile. In addition, the May 2007 and February 2009 VA examiners specifically stated that there was no ankylosis. While the Veteran was found to have muscle spasm, tenderness, and guarding, these symptoms were not severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In this regard, the Board finds that the 20 percent rating more than adequately contemplates this symptomatology. In addition, there is no indication that the Veteran has had incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. As previously noted, an incapacitating episode is defined as 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, Note (1). The Board observes that there are no treatment records associated with the claims file indicating that the Veteran was prescribed bed rest by any physician for at least two weeks for his lumbar spine disability. In fact, while the Veteran reported that flare-ups required him to stay in bed due to the pain, he specifically reported to the February 2009 examiner that he had not sought medical treatment for his back and did not have any incapacitating episodes during the past twelve months that required bedrest prescribed by a physician. As such, he has not been shown to have met the criteria for an increased evaluation under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. After reviewing the record, the Board further finds that a separate disability rating is not warranted because the objective medical evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his service-connected lumbar spine disability. The evidence of record does not identify any separate neurological findings or disability not already contemplated under the discussed pertinent criteria. In fact, in both the May 2007 and February 2009 VA examinations, the Veteran denied having leg and foot weakness, bladder or bowel complaints, and erectile dysfunction. Although the Veteran endorsed pain radiating into his lower extremities at both the May 2007 and February 2009 VA examinations as well as during VA treatment, and a one-time report of numbness and paresthesias at the May 2007 VA examination, full neurological examinations performed as part of both VA examinations did not reveal any motor, sensory, or reflex abnormalities. Therefore, the Board concludes that the Veteran does not suffer from additional neurological deficiency so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders. See Bierman v. Brown, 6 Vet. App. 125, at 129-132 (1994) The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's back is contemplated in the currently assigned 20 percent disability evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. In fact, the February 2009 VA examiner noted that while the Veteran had pain during a flare-up or repetitive use, he did not experience additional functional loss, and repetitive motion did not increase the loss of range of motion on either examination. The Veteran was found to be able to perform activities of daily living without limitation. Moreover, the Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, No. 09-2169, 2011 WL 3672294 (Vet. App. Aug. 23, 2011). Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for a higher evaluation for herniated nucleus pulposus at L-5. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's lumbar spine disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected lumbar spine disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an increased evaluation in excess of 20 percent for herniated nucleus pulposus at L-5 is denied. REMAND In his January 2007 claim, the Veteran alleged that he was unable to maintain employment due to his "condition." A review of the VA treatment records and May 2007 and February 2009 VA examinations indicates that the Veteran reported that he experienced difficulty maintaining employment in construction and in a refinery due to his lumbar spine disability; he reiterated this assertion in the March 2009 substantive appeal (VA Form 9). The Board notes the Court's holding that, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has alleged that he is unable to work as a result of his service-connected lumbar spine disability as recently as the March 2009 substantive appeal. Therefore, the RO should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disorders, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the RO/AMC may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. It is noted that the Veteran is service-connected for herniated nucleus pulposus L-5 and a boxer's fracture of the right little finger. 2. After completing the above actions, the RO/AMC should conduct any other development as may be indicated a consequence of the actions taken in the preceding paragraph. 3. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is 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 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. 2012). ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs