Citation Nr: 1302745 Decision Date: 01/24/13 Archive Date: 01/31/13 DOCKET NO. 10-20 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating higher than 10 percent for residuals of a shell fragment wound (SFW) of the neck. 2. Entitlement to a rating higher than 10 percent for arthritis of the cervical spine prior to January 13, 2012, and to a rating higher than 30 percent since. 3. Entitlement to an initial rating higher than 50 percent for dysthymia. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from February 1951 to February 1954 and was awarded the Purple Heart Medal for injuries sustained during combat in Korea. This appeal to the Board of Veterans' Appeals (Board) is from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). That decision confirmed and continued existing 10 percent ratings for the residuals of a SFW of the neck and for arthritis of the cervical spine. However, the RO granted service connection for dysthymia as well and assigned an initial 30 percent rating for this additional disability retroactively effective from May 5, 2008, the date of receipt of this claim. In October 2008, the RO notified the Veteran of that decision and, in response, he appealed for higher ratings for these disabilities, including for a higher initial rating for his dysthymia. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of his award to compensate him for variances in the severity of his disability, that is, for times when it has been worse than at others). The Board advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Since, however, the claims required further development before being decided on appeal, in December 2011 the Board remanded the claims to the RO via the Appeals Management Center (AMC) in Washington, DC. The additional development especially included having the Veteran undergo VA compensation examinations reassessing the severity of these service-connected disabilities. He had these requested VA compensation examinations in January 2012 and, after considering the results, the AMC issued a decision in October 2012 granting service connection additionally for left upper extremity C8/T1 nerve root radiculopathy with C5/6 impingement and assigning an initial 30 percent rating for this additional disability retroactively effective from January 13, 2012, the date of the VA compensation examination on remand noting this additional disability as secondary to the already service-connected arthritis of the cervical spine. See 38 C.F.R. § 3.310(a) and (b) and Allen v. Brown, 7 Vet. App. 439, 448 (1995) (permitting service connection on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability). The Veteran has not since, in response, appealed either the rating or effective date assigned for the left upper extremity C8/T1 nerve root radiculopathy with C5/6 impingement. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [Where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or effective date.]. Hence, there is no claim currently on appeal concerning this additional disability. The AMC also, however, increased the rating for the arthritis of his cervical spine from 10 to 30 percent also retroactively effective as of that VA compensation examination on January 13, 2012, and increased the initial rating for his dysthymia from 30 to 50 percent retroactively effective from the receipt of this claim on May 5, 2008. He since has continued to appeal for even higher ratings for these disabilities. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed he is seeking the highest possible ratings for these disabilities absent express indication to the contrary). So these claims now concern whether he was entitled to a rating higher than 10 percent for his cervical spine arthritis prior to January 13, 2012, and whether he has been entitled to a rating higher than 30 percent since, and whether he is entitled to an initial rating higher than 50 percent for his dysthymia. Also still at issue is the claim concerning whether he is entitled to a rating higher than 10 percent for the residuals of the SFW of his neck since the AMC continued to deny this claim in an October 2012 supplemental statement of the case (SSOC). Regarding the remaining claim of entitlement to a TDIU, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased compensation claims apply to a TDIU claim); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a TDIU claim is informally raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest possible rating for that disability; and (3) submits evidence of unemployability); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). Similarly, in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court held it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his underlying disability, which in that case was posttraumatic stress disorder (PTSD). Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability or disabilities. Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim. But there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Thus, under Rice and this line of precedent cases, the Board has authority to assume jurisdiction over this derivative TDIU claim inasmuch as it is predicated on the service-connected disabilities for which the Veteran is requesting higher ratings in this appeal. Although this derivative TDIU claim has not been initially considered by the RO as the Agency of Original Jurisdiction (AOJ), it does not require further development and the evidence currently of record is favorable to this claim and allows for the granting of this claim. Therefore, the Board is proceeding with adjudication of this derivative TDIU claim. However, the claim for higher ratings for the cervical spine arthritis requires still more development before being decided on appeal, so the Board is again remanding this claim to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. The SFW of the Veteran's neck does not involve moderately-severe muscle injury. 2. There is a painful and tender residual scar, but it does not cause visible or palpable tissue loss and either gross distortion or asymmetry of facial features, is not disfiguring, and does not cause any associated limitation of function or motion of any nearby joint. 3. Prior to January 13, 2012, his dysthymia caused reduced reliability and productivity, but since has caused occupational and social impairment with deficiencies in most areas. 4. His current service-connected disabilities are: dysthymia (50%); arthritis of the cervical spine (30%); associated left upper extremity C8/T1 nerve root radiculopathy with C5/6 impingement (30%); residuals of a SFW of his neck (10%); and scars on his right thigh and left hand (0%, i.e., noncompensable), for a combined rating of 60 percent as of May 5, 2008, and 80 percent since January 13, 2012. 5. The medical evidence of record indicates these service-connected disabilities, especially the arthritis of his cervical spine, preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria are not met for a rating higher than 10 percent for the residuals of the SFW of the neck. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.118, Diagnostic Codes 7800-05 (2008); 38 C.F.R. §§ 3.321, 4.1-4 .7, 4.10, 4.76, Diagnostic Code 5323 (2012). 2. Prior to January 13, 2012, the criteria were not met for a rating higher than 50 percent for the dysthymia, but they have been since for a higher 70 percent rating, though no greater rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4 .14, 4.21, 4.126, 4.130, Diagnostic Code 9433 (2012). 3. The criteria also are met for a TDIU. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist obligations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim, including apprising them of the information and evidence the Veteran is responsible for providing versus the information and evidence VA will obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, showing the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Furthermore, as specifically concerning increased-rating claims, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) overturned the lower Court's (CAVC's) ruling in concluding that generic or general notice is sufficient and need not be tailored to each specific Veteran's individual circumstances, including in terms of specifying alternative diagnostic codes and the submission of "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of the claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). A May 2008 letter satisfied these notice obligations in terms of apprising him of the type of evidence and information needed to substantiate his claims and of his and VA's respective responsibilities in obtaining this supporting evidence. That letter also informed him as to how a "downstream" disability rating and an effective date are assigned, in compliance with Dingess. Consider, as well, that the RO sent him that letter prior to initially adjudicating his claims in the September 2008 decision precipitating this appeal, so in the preferred sequence. Additional VCAA letters were more recently sent to him in August 2009 and January 2012, and those also provided information concerning his claims, including regarding their then present status. Moreover, the claims since have been readjudicated in the October 2012 SSOC, so since providing even that additional notice. Notably, the appeal for a higher initial rating for the dysthymia concerns a "downstream" issue. That is, the Veteran appealed the 30 percent rating that initially was assigned for this disability following the determination that he was entitled to service connection for it, and that initial 30 percent rating since has been increased during the pendency of this appeal to 50 percent retroactively effective from the date of receipt of this claim. In Dingess, the Court held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Here, in his June 2009 NOD, he took issue with the initial 30 percent rating assigned for his dysthymia, and as mentioned it is presumed he is seeking the highest possible rating or maximum benefit available under the law. Id; see also AB. Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO/AMC sent him an SOC and SSOCs that, in pertinent part, contained the criteria for establishing his entitlement to a higher rating for his dysthymia and a discussion of the reasons and bases for not assigning a higher rating, both when the rating was 30 percent and even since it has been increased to 50 percent. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). Regarding the duty to assist him with his claims, his relevant medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This includes his service treatment records (STRs) and post-service VA evaluation, treatment, and compensation examination reports, and his personal statements. Pursuant to the Board's September 2011 remand, he most recently underwent VA compensation examinations in January 2012 reassessing the severity of his dysthymia, SFW residuals, and cervical spine arthritis. As will be discussed in the remand portion of this decision, the Board finds the January 2012 VA examination report inadequate as pertaining to the assessment of the cervical spine arthritis - thus, the need to again remand this claim. 38 C.F.R. § 4.2 (it is incumbent upon the Board to return a report that is inadequate for rating purposes). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Conversely, the information and evidence needed to properly rate the residuals of the SFW of the neck and dysthymia was provided and there was compliance with the remand directives as concerning these other claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, as a matter of law, and the Board itself commits error in failing to ensure compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", even if not "exact" or "total", compliance with a remand directive and still satisfy the purpose of the remand). The January 2012 VA compensation examination and addendum reports concerning the SFW of the neck and dysthymia are sufficiently comprehensive and supported by the other evidence of record. These examinations are adequate for rating purposes as the claims file was reviewed, so the examiners considered the relevant history, and since they examined the Veteran personally, provided findings in sufficient detail to address the applicable rating criteria, and included discussion of the underlying rationale for their opinions and conclusions regarding the severity of these disabilities. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated, and "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). Therefore, the examinations are adequate upon which to base a decision in this appeal regarding these claims. The Veteran was specifically examined to reassess the severity of these service-connected disabilities. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The reports of the examinations satisfy 38 C.F.R. §§ 3.326 and 3.327. Thus, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claims. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Moreover, since the Board is granting the derivative TDIU claim, no discussion of the duties to notify and assist is therefore necessary concerning this claim because the Veteran is receiving this benefit, regardless. That is to say, even were the Board to assume, for the sake of argument, he has not received the required notice concerning this claim (especially since it was raised by the record during the pendency of this appeal rather than specifically claimed), this still would amount to at most nonprejudicial, i.e., harmless error inasmuch as this claim is being granted, rather than denied, in any event. 38 C.F.R. § 20.1102. In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, however, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning these claims. The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to him. Id. Claims for Higher Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. When evaluating a loss of range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id., at 206. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Indeed, in Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. But having said that, although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40 . Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided, as this would violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). While the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence. Layno v. Brown, 6 Vet. App. at 470 (1994); Grottveit v. Brown, 5 Vet. App. at 92-93 (1993). Residuals of the SFW of the Neck When a Veteran files a claim for an increased rating of an already established service-connected disability, as this Veteran did in this particular instance with regards to the claim for a higher rating for the residuals of the SFW of his neck, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the present level of disability is the primary concern and that past medical reports do not have precedence over current medical findings. Nevertheless, in assessing the present level of disability, the relevant temporal focus is from one year prior to the filing of the claim for an increased rating, and from that point going forward there must be consideration of whether there have been occasions when the disability has been more severe than at others. If there have been, then just as in the case of an initial rating (see Fenderson, 12 Vet. App. at 125-26), VA must "stage" the rating to compensate the Veteran for this variance. Hart v. Mansfield, 21 Vet. App. 505 (2007). See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Veteran's claim of entitlement to an increased rating for the service-connected residuals of the SFW of his neck was received on May 5, 2008, so the Board must assess the severity of this disability since the year prior, meaning since May 5, 2007. In Harper v. Brown, 10 Vet. App. 125, 126 (1997), the Court discussed the three possible effective dates that may be assigned for a higher rating depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). In August 2008, the Veteran had VA compensation examinations to reassess his SFW residuals. According to the muscle examination report, his SFW scar is located on the left side, posterior region of his neck. The wound was not a through-and-through injury. It was not initially infected before healing and there were no associated bone, nerve, vascular or tendon injuries. The Veteran reported experiencing pain. There was no decreased coordination, increased fatigability, weakness or uncertainty of movement, or other symptoms. He had daily flare-ups, which were described as severe in nature and lasting for hours. The examiner observed that the Veteran held on to the left side of his neck when rotating it. On examination, the examiner noted that a muscle had not been injured, destroyed or traversed on account of the SFW of the neck. There was no intermuscular scarring. Muscle function was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living (ADLs). The SFW scar was noted as well-healed, flat, and the color of skin. It measured 2 cm x .05 cm. It was not painful or tender to touch on examination. It was not adherent. There were no separate entry and exit scars. Residuals of nerve, tendon, or bone damage were not present. There were no findings of muscle herniation or a loss of deep fascia or muscle substance. Motion was not limited in any joint by muscle disease or injury. The residuals of the SFW of the neck severely affected certain ADLs, such as completing chores, shopping, exercising, engaging in sports, and driving. The Veteran since has had another VA compensation examination in January 2012 to reassess the severity of the residuals of the SFW of his neck. The neck scar was painful and tender upon palpation. It again measured 2 cm x .5cm. It was not unstable with frequent loss of the covering of skin over the scar. There was no evidence of elevation, depression, or adherence to the underlying tissue. There was no missing underlying soft tissue. There was no abnormal pigmentation or texture of the neck scar. Approximate total area of the neck scar with hypo- or hyper-pigmentation was 1.0 cm squared. There was no gross distortion, asymmetry of facial features, or visible or palpable tissue loss. The scar also did not result in any associated limitation of motion. This disability is rated as 10-percent disabling under Diagnostic Code 7800 for the residual scar that is painful and tender to palpation. The criteria for rating scars were revised for claims received on or after October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008), codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805 (2009). Because, however, these changes were expressly made applicable only to claims filed on or after this effective date, they do not apply to the Veteran's pending claim that, instead, was received by VA in May 2008, so prior to these regulatory changes. See also 38 U.S.C.A. § 5110(g) and 38 C.F.R. § 3.114. His residual neck scar may be rated as disfigurement of the neck under Diagnostic Code 7800. This code pertains specifically to scars located on the head, face, or neck. 38 C.F.R. § 4.118 (2008). A 10 percent rating is warranted for disfigurement of the head, face, or neck with one characteristic of disfigurement. A 30 percent rating is warranted for disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with two or three characteristics of disfigurement. Id. A 50 percent rating is warranted for disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement. Id. The highest rating of 80 percent is warranted for disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with six or more characteristics of disfigurement. Id. The eight characteristics of disfigurement for purposes of evaluation under § 4.118 (2008) are: (1) scar 5 or more inches (13 or more centimeters (cm.)) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding 6 square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding 6 square inches (39 sq. cm.). Id., at Note (1). Thus, to warrant a higher 30 percent rating under Diagnostic Code 7800, there must be probative evidence of either tissue loss and gross distortion or asymmetry or two or three characteristics of disfigurement. Neither is shown. The Veteran's neck scar is described as well-healed; there is no evidence of any tissue loss, gross distortion or asymmetry of any feature(s) in the area. It is smaller than 13 cm in length and .6 cm in width. It is not elevated or depressed or adherent to underlying tissue. Hypo- or hyper-pigmentation does not exceed 39 sq. cm. There is no missing underlying soft tissue, induration, or inflexibility. Thus, the criteria for a higher rating under Diagnostic Code 7800 have not been met, and the existing 10 percent rating already compensates him for the consequent pain and tenderness in this scar to palpation. Diagnostic Codes 7801 and 7802 are not for application, as they pertain to scars other than those on the head, face, or neck. Additionally, a higher rating is not warranted under either Diagnostic Code 7803 or Diagnostic Code 7804 as a 10 percent rating is the maximum rating available under these other codes, and he already has a rating at this level. Scars also may be assigned disability ratings based upon limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2008). Here, though, the medical evidence indicates the Veteran's neck scar does not limit the function of any nearby joints, including in terms of causing any limitation of motion. Therefore, a higher rating under Diagnostic Code 7805 also is not warranted. The Board sees also that the SFW residuals initially were rated in 1954 under Diagnostic Code 5323, which contemplates impairment to Muscle Group XXIII. This muscle group includes movements of the head, fixation of shoulder movements, and muscles of the side and back of the neck - including the suboccipital and lateral vertebral and anterior vertebral muscles. See 38 C.F.R. § 4.73, Diagnostic Code 5323 (2012). Therefore, the residuals of the SFW of the neck also may be evaluated under this code. The criteria for rating muscle injuries are addressed in 38 C.F.R. §§ 4.55, 4.56, and 4.73. Muscle injury ratings are not to be combined with a peripheral nerve paralysis rating of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). The skeletal muscles of the body are divided into muscle groups. 38 C.F.R. § 4.55(b). A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b). The cardinal signs and symptoms of muscle disability are described in 38 C.F.R. § 4.56(c): loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. Disabilities are classified as slight, moderate, moderately-severe or severe under Diagnostic Codes 5301 to 5323. 38 C.F.R. § 4.73. These terms are described in 38 C.F.R. § 4.56(d). Injuries to the muscles of Group XXII warrant a 0 percent (noncompensable) rating if the attendant symptoms are slight, a 10 percent rating if moderate, a 20 percent rating if moderately severe, and a 30 percent rating if severe. 38 C.F.R. § 4.73, Diagnostic Codes 5322, 5323. A slight disability of muscles stems from a simple wound of a muscle without debridement or infection. 38 C.F.R. § 4.56(d)(1)(i). It heals with good functional results, is superficial, results in minimal scarring and shows no impairment of function or retained metallic fragments. 38 C.F.R. § 4.56(d)(1)(i)-(iii). There are no cardinal signs of muscle disability. 38 C.F.R. § 4.56(d)(1)(ii). For moderate disability, the type of injury is "through and through" or deep and from a single bullet; without explosive effect, residual debridement or prolonged infection. 38 C.F.R. § 4.56(d)(2)(i). The record of moderate disability would show one or more of the cardinal signs and symptoms of muscle disability; particularly the low threshold of fatigue. 38 C.F.R. § 4.56(d)(2)(ii). Objective findings are entrance and exit scars, loss of fascia or muscle substance, and lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2)(iii). Characteristics of moderately severe disability include: a deep penetrating wound; prolonged infection; debridement; prolonged treatment for wound; evidence of inability to keep up with work requirements; entrance and exit scars through one or more muscle groups; loss of deep fascia; and impacted strength and endurance. 38 C.F.R. § 4.56(d)(3). Characteristics of severe disability include all of the above plus: evidence of wounds due to large or multiple missiles; shattering bone fracture; extensive debridement; prolonged infection; intramuscular binding and scarring; consistent complaint of cardinal signs; marked scars; obvious loss on palpation; abnormal contraction; X-ray evidence of multiple scattered foreign bodies; adhesion of scars; atrophy; adaptive contraction of an opposing group of muscles, etc. 38 C.F.R. § 4.56(d)(4). Applying these criteria for rating muscle injuries to the applicable evidence, the Board finds that a rating higher than 10 percent is unwarranted. Significantly, there is no evidence of a moderately-severe muscle injury. In this regard, the evidence indicates the Veteran did not suffer a deep penetrating wound to his neck, nor did he experience prolonged infection, debridement, or prolonged treatment for the wound. Additionally, there is no evidence showing he was unable to keep up with work requirements due to his neck wound. Lastly, there is no evidence of entrance and exit scars through one or more muscle groups (to suggest a through-and-through wound) or loss of deep fascia; and his neck scar, though as mentioned painful and tender to palpation, has not negatively impacted his strength and endurance. In fact, the January 2012 VA examiner specifically indicated there is no evidence of any muscle impairment attributable to the SFW of the neck. The Board has duly considered the Veteran's statements and personal assertions regarding the severity of his SFW residuals. However, his lay statements must be considered along with the objective medical evidence and findings and in relation to the applicable rating criteria, so not in isolation or a vacuum. Furthermore, his personal opinions and observations alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. §§ 4.118 or 4.73 with respect to determining the severity of his disability, particular considering there are objective means of assessing the severity of the residual scar and any resultant muscle impairment. Cf. Moray v. Brown, 5 Vet. App. 211, 214 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). See also 38 C.F.R. § 3.159(a)(1) and (a)(2). Accordingly, the preponderance of the evidence is against this claim for a rating higher than 10 percent for the residuals of the SFW of the neck, including the scar, so the benefit-of-the-doubt rule does not apply and this claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. Dysthymia This claim, as mentioned, arises from the Veteran's disagreement with the initial rating assigned following the granting of service connection for this condition. In Fenderson, supra, the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service connected. In the Fenderson scenario, where the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged" rating. Fenderson, 12 Vet. App. 125-126. The Court also since as mentioned has extended this practice even to claims that do not involve initial ratings, rather, also established ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although during the pendency of this claim, the rating for the Veteran's dysthymia was increased from 30 to 50 percent pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9433, he believes this disability is even more severe and, therefore, warrants an even higher rating. See AB, 6 Vet. App. at 38-39. Mental disorders are evaluated under a General Rating Formula found at 38 C.F.R. § 4.130. In addition, the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed in 38 C.F.R. § 4.130. When evaluating a mental disorder, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). According to the General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130, the Veteran's existing 50 percent rating requires 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. Id. A higher 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. The next higher, and maximum, 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130. In determining whether the Veteran meets the criteria for an increased rating, the Board must consider whether he has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). In evaluating the evidence, the Board also has considered Global Assessment of Functioning (GAF) scores that evaluating clinicians have assigned. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment. See generally 38 C.F.R. § 4.126 VAOPGCPREC 10-95. The higher the score, the higher the overall functioning of the individual is. A score of 51-60 represents "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." DSM-IV at 46-47. See 38 C.F.R. § 4.130. Evidence relevant to the severity of the Veteran's dysthymia includes a September 2008 VA compensation examination report. According to this report, he was cooperative and appropriately dressed during the examination. His speech was described as slow, and his affect as constricted. His mood was depressed and labile. His attention was intact, as was his orientation as to person, time, and place. The examiner offered no remarks with regard to the Veteran's psychomotor activity, thought process, and thought content. There were no delusions. The Veteran's judgment and insight were appropriate. His intelligence was noted as average. There were no hallucinations, obsessive/ritualistic behavior, panic attacks, homicidal and or suicidal thoughts, or episodes of violence. He interpreted proverbs appropriately. His impulse control was noted as good. He had normal remote, recent, and immediate memory. There was a decrease in social relations. He reported having less patience with people. The examiner provided an Axis I diagnosis of dysthymia and assigned a GAF score of 57. The examiner determined the Veteran's dysthymia resulted in deficiencies in family relations, work, and mood, and related this disability to his service in Korea. As a result of the Board's September 2011 remand, the Veteran had another VA compensation examination in January 2012 to reassess the severity of his dysthymia. He reported feeling guilty about his depression. He stated that he isolated himself, had nightmares, and experienced an increased startle response. His symptoms included a depressed mood, anxiety, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and suicidal ideation. The examiner checked the box indicating the Veteran's dysthymia caused occupational and social impairment with reduced reliability and productivity. The dysthymic disorder diagnosis was continued, and a GAF score of 55 was assigned. In an addendum provided later that month, that VA compensation examiner indicated he did review the Veteran's claims file. The examiner also clarified that the Veteran's dysthymia affected his emotional and occupational functioning. The examiner indicated that, although the Veteran was not totally disabled, it would be difficult for him to work given his age. Having reviewed this and the other evidence in the file concerning this claim, the Board finds that, prior to January 13, 2012, the Veteran's dysthymia did not meet the criteria for a rating higher than 50 percent. Notably, there was no evidence of panic attacks, memory loss, impaired judgment, or impaired abstract. Overall, his dysthymia caused occupational and social impairment with reduced reliability and productivity manifested by symptoms of depression and a constricted affect. However, the clinical findings shown on the VA compensation examination on January 13, 2012, show an increase in psychiatric symptomatology even beyond the 50-percent level. Although the examiner initially checked the box indicating the Veteran's dysthymia caused reduced reliability and productivity, which is consistent with at most a 50 percent rating, the actual report denotes additional symptoms such as suicidal ideation, weekly panic attacks, and impaired impulse control. So with resolution of all reasonable doubt in the Veteran's favor, his dysthymia more nearly approximates occupational and social impairment with deficiencies in most areas since January 13, 2012; consequently, an even higher 70 percent rating is granted effective from that date. An even higher rating of 100 percent is not warranted, however. The January 2012 examiner expressed concern as to whether the Veteran could find employment given his age, but age is not a factor in the rating for this disability. Moreover, the VA examiners expressly determined the Veteran does not have total occupational and social impairment on account of his dysthymia. In summary, then, the Board concludes that an initial rating higher than 50 percent for the dysthymia is not warranted until June 13, 2012, but that a higher 70 percent rating has been warranted since. Extra-schedular Consideration In exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, though, the schedular rating criteria contemplate the extent and severity of the Veteran's SFW residuals and dysthymia. The SFW residuals are pain and tenderness in the consequent scar, which are contemplated in the applicable schedular rating criteria. Similarly, his psychiatric symptoms such as feeling depressed or experiencing an increased startle response are contemplated by the applicable schedular rating criteria as well. The Board, then, is not obligated to refer these claims to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) Service for extra-schedular consideration. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Claim of Entitlement to a TDIU This TDIU claim, as explained, is a derivative of the increased-rating claims that also are on appeal. A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). In making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If there is only one service-connected disability, it must be ratable at 60 percent or more. Whereas, if there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. But disabilities resulting from common etiology or single accident or affecting both upper or lower extremities will be considered as one disability in determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a). The Veteran has sufficient ratings for his service-connected disabilities to satisfy the threshold minimum rating requirements of § 4.16(a) for consideration of a TDIU - that is, without having to resort to the special extra-schedular provisions of § 4.16(b). So resolution of this appeal instead turns on whether his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). And as the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). That said, as already alluded to, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So, above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Here, there is a probative medical opinion supporting this derivative TDIU claim. Notably, the January 2012 VA compensation examiner determined the Veteran's service-connected cervical spine disability (referring to the arthritis affecting this segment and perhaps also to the associated left upper extremity C8/T1nerve root radiculopathy with C5/6 impingement) impacts his ability to work both sedentary and physical jobs. Based on this medical opinion, the Board finds that his service-connected disabilities, alone, especially these disabilities, are shown to be so disabling as to preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. Thus, he is entitled to a TDIU. ORDER The claim for a rating higher than 10 percent for the residuals of the SFW of the neck is denied. Also denied is the claim for a rating higher than 50 percent for the dysthymia prior to January 13, 2012. However, a higher 70 percent rating is granted for the dysthymia as of January 13, 2012, subject to the statutes and regulations governing the payment of VA compensation. A TDIU also is granted, also subject to the statutes and regulations governing the payment of VA compensation. REMAND Further development is necessary before deciding the remaining claim for higher ratings for the arthritis of the cervical spine, both prior to and since January 13, 2012. The January 13, 2012 VA compensation examination the Veteran had for this disability following and as a result of the Board's prior remand is inadequate for rating purposes as concerning this specific disability. This disability is rated under the General Rating Formula for Diseases and Injuries of the Spine set forth in 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, and the clinical findings provided in the report of the January 2012 examination address these criteria. But this disability also may be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes found in Diagnostic Code 5243. IVDS is evaluated either on the total duration of incapacitating episodes over the past twelve months, so year, or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with evaluation of all other disabilities, whichever method results in the higher evaluation. Diagnostic Code 5243 provides a 10 percent rating when there are incapacitating episodes having a total duration of at least one but less than two weeks during the past 12 months. A 20 percent rating is assigned there are incapacitating episodes having a total duration of at least two but less than four weeks during the past 12 months. A 40 percent rating is assigned when there are incapacitating episodes having a total duration of at least four but less than six weeks per year. And a maximum 60 percent rating is available when there are incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year. Note (1) in Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician. In the January 2012 VA spine examination report, the examiner indicated that IVDS of the neck was not present; however, X-rays of the cervical spine taken in conjunction with that examination suggest IVDS. In fact, X-rays of the cervical spine taken during the even earlier VA compensation examination in August 2008 showed evidence of IVDS between C5-C6 and C6-C7. Indeed, the AMC's decision to grant service connection for the left upper extremity C8/T1 nerve root radiculopathy with C5/6 impingement, as secondary to the cervical spine disability, seemingly was predicated on the notion the Veteran has IVDS since there has to be compensation for this associated neurological impairment. Consequently, supplemental comment is needed concerning the nature and severity of any IVDS of the cervical spine. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, this remaining claim is REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran whether he has received any additional (more recent) evaluation or treatment for the service-connected arthritis affecting his cervical spine. If he has, obtain these additional records. If the identified records are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are. If attempts to obtain any additionally identified records are unsuccessful, and it is determined that further attempts to obtain them would be futile, then make an express declaration to this effect and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(e). 2. Upon receipt of all additional evaluation or treatment records, return the claims file to the examiner who performed the January 2012 VA examination of the cervical spine for compensation purposes and request supplemental comment (addendum opinion) clarifying whether the Veteran's service-connected cervical spine disability includes IVDS - that is, in addition to the arthritis or as part and parcel of the arthritis. If so, the examiner should comment on the frequency and duration of any incapacitating episodes in the past year (meaning periods of acute signs and symptoms due to the IVDS requiring bed rest prescribed by a physician or treatment by a physician). It therefore is imperative the examiner have opportunity review or refamiliarize himself with the evidence in the claims file, including a complete copy of this decision and remand. If, for whatever reason, this examiner is no longer available to provide this additional comment, then obtain it from someone else qualified to make this necessary determination. In this eventuality, however, the Veteran may need to be reexamined, but this is left to the designee's discretion. 3. Then readjudicate this remaining increased-rating claim in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2011). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs