Citation Nr: 1303985 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 09-17 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine, status post bilateral L5-S1 microdecompression, prior to March 8, 2011. 2. Entitlement to a disability evaluation in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine, status post bilateral L5-S1 microdecompression, from March 8, 2011, to June 1, 2011, and from January 1, 2012. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from May 1992 to November 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In the September 2008 rating decision service connection was established for degenerative disc disease of the lumbar spine with a 20 percent disability evaluation effective from March 28, 2008. In an April 2009 rating decision, a temporary total rating (100 percent) was assigned effective from March 28, 2008, based on surgical or other treatment necessitating convalescence for the Veteran's service-connected low back disability with a 20 percent disability rating assigned effective from June 1, 2008. In a March 2011 rating decision, a 40 percent disability evaluation was assigned the low back disability effective from March 8, 2011. In a December 2011 rating decision, another temporary total rating (100 percent) was assigned effective from June 2, 2011, based on surgical or other treatment necessitating convalescence for the Veteran's service-connected low back disability with a 40 percent rating assigned effective from August 1, 2011. A decision on the issue of entitlement to a TDIU was deferred in that rating decision. In a March 2012 rating decision, the temporary total evaluation was extended to January 1, 2012 with a 40 percent evaluation assigned from January 1, 2012. In the March 2012 rating decision, entitlement to a TDIU was denied; the Veteran appealed this denial. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to March 8, 2011, the Veteran's service connected degenerative disc disease of the lumbar spine did not cause forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 2. The record on appeal does not show that the Veteran's service-connected low back disability has resulted in unfavorable ankylosis of the entire thoracolumbar spine at any time during this appeal. 3. The record on appeal does not show that the Veteran's service-connected low back disability has resulted in incapacitating episodes of at least four weeks in a twelve month period during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine prior to March 8, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5235-5243 (2012). 2. The criteria for a disability rating in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine for the period from March 8, 2011, to June 1, 2011, and from January 1, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran's degenerative disc disease of the lumbar spine is rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a (2012). Under the General Formula, diseases and injuries to the spine are to be evaluated under Diagnostic Codes 5235 to 5243 as follows: 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; Unfavorable ankylosis of the entire spine ............................................................. 100 Unfavorable ankylosis of the entire thoracolumbar spine ...................................... 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine ................................................................................................ 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine ........................................................................................... 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis ...................................... 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height .................................................................................. 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. Note (2): (See also Plate V). For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months ........................................................................................................ 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months ............................................................... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months ............................................................. 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months ............................................................. 10 Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): 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 incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a (2012). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran submitted his claim for service connection for a low back disability in March 2008. The RO granted entitlement to service connection for degenerative disc disease of the lumbar spine in a September 2008 rating decision and assigned an initial 20 percent disability rating effective March 2008, the date of the Veteran's claim. The Veteran appealed, seeking a higher disability evaluation. In a March 2011 rating decision, the RO increased the Veteran's disability rating to 40 percent, effective March 8, 2011. Additionally, throughout the pendency of this appeal, the Veteran has had several surgeries on his lumbar spine. Following these surgeries, he has been assigned a temporary total (100 percent) disability evaluation under 38 C.F.R. § 4.30. These temporary total evaluations have been assigned from March 28, 2008 through May 31, 2008, and from June 2, 2011 through December 31, 2011. These temporary total disability ratings are not issue. The Veteran was also assigned separate disability ratings for radiculopathy of the left and right lower extremities and for depression secondary to his service-connected degenerative disc disease of the lumbar spine. He has not appealed the initial disability ratings or effective dates for these disabilities. Private treatment records from Vail Valley Medical Center show that the Veteran's medical history included an injury to his low back in service and he suffered from chronic intermittent low back pain since that time, but he remained highly functional until 2007 when he reinjured himself and began experiencing severe low back pain radiating down into his legs bilaterally. After more conservative treatments failed, he underwent a microdiscectomy in March 2008 to repair a herniated nucleus pulposus at L5-S1. The Veteran was afforded a VA examination in March 2008. At that time, he complained of moderate constant daily low back pain that radiates. He also complained of fatigue, decreased motion, stiffness, weakness, and spasms. He reported that he was unable to sit or stand in one place for more than a few minutes at a time. He described flare-ups occurring every two to three weeks and lasting a day or two. The Veteran reported that during these flare-ups, he was unable to work, lift, or bend over. However, he was still able to get up to perform activities of daily living such as toileting. The examiner reported that the Veteran had suffered from one incapacitating episode of intervertebral disc syndrome lasting for two weeks in the last twelve months. At the time of the examination, the Veteran owned his own construction company. He reported that he had missed approximately six weeks of work in the last years due to his low back surgery and recovery. On examination, the Veteran had an antalgic gait, and spasm and tenderness of the thoracic sacrospinalis muscles. He had decreased strength in the lower extremities. Sensation was intact except for absent vibratory sensation in the left knee. There was no ankylosis of either the cervical or thoracolumbar spine. Forward flexion of the lumbar spine was from 0 to 65 degrees, with pain throughout the range of motion. Following repetitive testing, forward flexion was reduced from 0 to 50 degrees. Extension was from 0 to 20 degrees, with pain throughout the range of motion, but no additional loss of motion following repetitive testing. Lateral flexion was from 0 to 20 degrees bilaterally, with pain throughout the range of motion. Range of motion was reduced from 0 to 15 degrees following repetitive testing. Lateral rotation was from 0 to 25 degrees bilaterally with pain throughout the range of motion. Range of motion was reduced from 0 to 20 degrees following repetitive testing. The Veteran was diagnosed with degenerative disc disease of the lumbar spine with radiculopathy. In his December 2008 notice of disagreement, the Veteran complained that even after his March 2008 surgery, he still had constant low back pain, with numbness in the left leg. He reported that he was not able to sit or stand for more than thirty minutes without having to get up and move around or lay down. He also claimed that he had "episodes" every three months lasting two or three weeks, but did not describe these episodes. An April 2009 treatment record from University Hospital shows that the Veteran continued to complain of daily low back pain, as well as occasional radiculopathy of the left lower extremity following prolonged standing or back exertion which resolves after a couple of days. He reported that he was unable to run or lift more than twenty pounds. He owned his own construction business and was unable to do more than supervisory work. He also complained that the pain interfered with his sleep. The Veteran was observed to have a slightly antalgic gait and to rise from the chair onto the examination table with mild evidence of pain. However, he was able to raise onto his toes and rock on his heels. He could forward bend to 45 degrees before stopping secondary to pain. The examining physician noted that lateral bending and rotation were likewise reduced, but did not provide exact measurements. There was some tenderness to palpation of the paraspinous muscles in the lower lumbar region. Muscle groups of the lower extremities were normal. Knee and ankle jerks were maintained. Additional treatment records from University Hospital show that the Veteran was administered a left L3 to S1 medial branch block, number 1; a left L3-S1 medial branch radial frequency ablation; and a right L3 to S1 medial branch frequency ablation between May 2009 and July 2009. Also of record are VA treatment records, which note the Veteran's ongoing complaints of low back pain, but do not provide any range of motion measurements during the period between March 2008 and March 2011. In March 2011, the Veteran was afforded another VA examination. The Veteran complained of progressively worsening chronic low back pain that radiated into his bilateral lower extremities. He reported flare-ups of his condition every two to three weeks, lasting one to two days and precipitated by prolonged standing, bending, lifting, and sitting. He complained that during his flare-ups, he was unable to ambulate effectively. The Veteran also described fatigue, decreased motion, stiffness, weakness, spasm, paresthesias, and leg or foot weakness. The examiner noted that the Veteran had been placed on light duty for five days to a week in the past twelve months due to intervertebral disc syndrome. On examination, lumbar flattening was observed. There was also tenderness to palpation of the thoracolumbar sacrospinalis muscles. There was no ankylosis of either the cervical or thoracolumbar spines. Forward flexion of the lumbar spine was from 0 to 30 degrees, extension was from 0 to 20 degrees, and lateral rotation and lateral flexion were from 0 to 20 degrees bilaterally. The examiner noted that there was objective evidence of pain on active motion and following repetitive motion, but no additional limitation of motion following repetitive testing. The point at which painful motion began and ended was not specifically noted. The Veteran had decreased sensation and motor strength in the left lower extremity. In June 2011, the Veteran underwent another lumbar spinal surgery. In September 2012, the Veteran was afforded another VA examination. The Veteran continued to complain of progressively worsening low back pain radiating into the lower extremities. He reported that he was forced to decrease his physical activity because of the pain and that although he used to walk two to three miles in the morning and evening, he was now only walking one mile, three times a week. He also continued to report that he was unable to sit or stand for prolonged periods of time. His ability to lift, carry, and bend was limited, which limited his ability to perform many activities of daily living. The Veteran also described two or three episodes in the last year of severe flare-ups, during which he must lie down for extended periods. Forward flexion was from 0 to 10 degrees, with pain beginning at 5 degrees. Extension was from 0 to 15 degrees, with pain beginning at 10 degrees. Right lateral flexion was from 0 to 15 degrees, with pain at the endpoint. Left lateral flexion was from 0 to 20 degrees, with pain at 15 degrees. Right lateral flexion was from 0 to 15 degrees, with pain at 10 degrees. Left lateral rotation was from 0 to 20 degrees with pain at 15 degrees. The Veteran refused to participate in repetitive testing, claiming that if he did so, he would experience a flare-up in his symptoms requiring him to limit his activities for several days. The Veteran had an abnormal gait and abnormal spinal contour. There was tenderness to palpation of the lumbar paraspinal muscles. The Veteran had diminished strength and sensation in the lower extremities with some muscle atrophy. He had total incapacitating episodes due to intervertebral disc syndrome of at least one week but less than two weeks during the past year. The examiner noted that the Veteran's disability would impact his ability to work by limiting the length of time he was able to sit or stand without changing positions or resting. He would be limited in the maximum amount he could lift and should avoid stooping, climbing, running, jumping, marching, crouching, crawling, spine vibrations, and impact exposures. He would also be expected to have increased absenteeism secondary to exacerbations of chronic pain requiring periods of bed-rest and medical visits. He could experience difficulties with concentration, pace, and persistence secondary to chronic pain. The examiner concluded that the Veteran would be unable to sustain light, medium, or heavy physical demands work, and would require accommodation to perform sedentary work. Based on all the above evidence, the Board finds that a higher disability evaluation for the Veteran's degenerative disc disease is not warranted for any period on appeal. Prior to March 8, 2011, the Veteran did not have favorable ankylosis of the thoracolumbar spine and forward flexion of the thoracolumbar spine was not 30 degrees or less, even considering limitation caused by pain, fatigue, and other factors. While the Veteran has reported pain throughout his entire range of motion, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that pain, by itself, throughout a joint's range of motion does not constitute a "functional loss" entitling a claimant to a higher rating under VA regulations that evaluate disability based upon range-of-motion loss in the musculoskeletal system, and concluded that "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." (Internal citations omitted). Here, although pain was noted throughout the entire range of motion and resulted in additional loss of motion at the Veteran's September 2008 VA examination, it did not reduce his range of motion to flexion of 30 degrees or less. Although the medical evidence prior to March 8, 2011 shows frequent complaints of low back pain, it fails to show that this pain, as well as the Veteran's other subjective complaints, caused sufficient functional impairment to limit the flexion of the thoracolumbar spine to 30 degrees or less, as is required for a higher rating under the General Rating Formula for Diseases and Injuries of the Spine. Additionally, as set forth above, the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine at any period on appeal, so a disability evaluation in excess of 40 percent is not warranted. Finally, the Veteran's degenerative disc disease has not resulted in incapacitating episodes having a total duration of at least four weeks during the preceding twelve month period. Accordingly, a disability rating in excess of 20 percent cannot be awarded using the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his back condition. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability ratings reflect. Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability levels and symptomatology. In this case, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. The symptoms he complains of, such as pain, stiffness, and weakness, are not unusual or different from those contemplated by the schedular criteria for evaluating diseases and injuries of the spine. The available schedular evaluations for his service-connected degenerative disc disease of the lumbar spine are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is not required. See Thun, supra. For all the above reasons, entitlement to an increased disability evaluation for the Veteran's service-connected degenerative disc disease of the lumbar spine is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim 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 Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims 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. Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been 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 that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted private treatment records. The appellant was afforded a VA medical examination in September 2008, March 2011, and September 2012. These examinations are based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disability as well as the functional impairments resulting therefrom, including function impairments due to pain. These examination reports are adequate for rating purposes. See 38 C.F.R. § 4.2. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to an initial disability rating in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine prior to March 8, 2011 is denied. Entitlement to a disability rating in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine from March 8, 2011, to June 1, 2011, and from January 1, 2012, is denied. REMAND The Veteran is seeking entitlement to a total disability rating due to individual unemployability(TDIU). He has argued that he is no longer able to find and maintain substantially gainful employment due to his service-connected disabilities. Specifically, he contend that he can no longer perform physically demanding employment due to his service-connected degenerative disc disease of the lumbar spine with radiculopathy of the lower extremities along with his service-connected depression, and that he is not trained to perform sedentary employment. The Veteran has claimed that he requested assistance in retraining for sedentary employment from the VA office of Vocational Rehabilitation, but was refused. The reasons for this refusal are unclear from the record. Records from Vocational Rehabilitation are not of record, but if they performed any physical or psychological evaluations of the Veteran, these would be relevant to the Veteran's claim for TDIU. In Moore v. Gober, 10 Vet. App.436, 440 (1997), the Court held that where it is a matter of record that a veteran has received benefits under the education and vocational rehabilitation program, the Board is on notice that such records exist and is obligated to obtain and consider them. Accordingly, on remand, the RO should obtain the Veteran's vocational rehabilitation records, including any physical or psychological evaluations performed as part of the initial evaluation process, and associate these records with the Veteran's claims folder. The Board also finds that a medical opinion addressing the question of whether the Veteran is unemployable solely due to his service-connected disabilities (including degenerative disc disease of the lumbar spine (40 percent); depression (30 percent); left lower extremity radiculopathy (10 percent); and right lower extremity radiculopathy (10 percent)) should be obtained upon remand. See 38 C.F.R. §§ 3.341 , 4.16, 4.19 (2012). See also 38 U.S.C.A. § 5103A(d) (West 2002); Friscia v. Brown, 7 Vet. App. 294 (1995) (providing that VA has a duty to supplement the record by obtaining an examination, which includes an opinion on what effect the appellant's service-connected disability has on his ability to work). Such an opinion must be based upon consideration of the Veteran's current medical condition as well as his documented history and assertions, to include employment history and education, and medical evidence associated with the record. 38 U.S.C.A. § 5103A. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's Vocational Rehabilitation file including any physical or psychological evaluations, and associate these records with his claims folder. 2. After the aforementioned development has been completed, the Veteran should be afforded a VA examination in order to determine the impact of the Veteran's service-connected disabilities, which include degenerative disc disease of the lumbar spine; bilateral lower extremity radiculopathy; and depression, on his ability to retain and maintain gainful employment. Testing deemed necessary should be conducted. The claims file, with a copy of this remand, must be made available to the examiner(s) for review in conjunction with the examination. An examiner should opine as to whether, without regard to the Veteran's age or the impact of any non-service connected disabilities, it is at least as likely as not (50 percent or greater probability) that his service-connected disabilities (degenerative disc disease of the lumbar spine; bilateral lower extremity radiculopathy; and depression), alone or in combination, make him unable to secure or follow a substantially gainful occupation for which his education and occupational experience would qualify him. The examiner should set forth a complete rationale for any opinion reached. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, the remaining issue on appeal should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs