Citation Nr: 1306784 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 09-14 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent disabling prior to April 4, 2011 for lumbar disc disease with scoliosis and degenerative changes (a back disability), and in excess of 40 percent disabling thereafter. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from March 1972 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2010, the Veteran testified in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In February 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC to provide the Veteran with proper VCAA notice regarding the claim for a TDIU, to obtain outstanding treatment records, and to afford the Veteran a VA examination. The case has been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). An additional discussion regarding the RO's compliance with the February 2011 Board Remand is included in the Duties to Notify and Assist section below. In a September 2012 rating decision, the AMC increased the disability rating for a back disability to 40 percent disabling, effective April 4, 2011. The Veteran was advised of determination but did not express agreement with the rating assigned or withdraw the appeal as to an increased rating for the lumbar spine disability. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an original or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Because the 40 percent disability rating for a back disability is not the maximum benefit available for the service-connected back disability, this appeal continues. The September 2012 rating decision additionally indicated that service connection for left and right lower extremity radiculopathy was granted and separate disability evaluations for those disabilities. The Veteran was advised of the grant of service connection and of his appellate rights. He has not perfected an appeal with regard to those disabilities and they will not be addressed. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The issue of 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 April 4, 2011, the Veteran's back disability manifested by forward flexion greater than 30 degrees but not greater than 60 degrees and a combined range of motion of the thoracolumbar spine no less than 160 degrees. There was no ankylosis and the Veteran's back disability did not result in any incapacitating episodes requiring bed rest prescribed by a physician. 2. From April 4, 2011, forward, the Veteran's back disability manifested by forward flexion of 30 degrees or less. There is no ankylosis and the Veteran's back disability did not result in any incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSIONS OF LAW 1. Prior to April 4, 2011, the criteria for an evaluation in excess of 20 percent disabling for a back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2012). 2. From April 4, 2011, forward, the criteria for an evaluation in excess of 40 percent disabling for a back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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 of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication. A July 2007 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. Substantially compliant notice was also sent in February 2011, and the claim was last readjudicated in a September 2012 supplemental statement of the case, thereby curing any notice deficiency. Mayfield, 444 F.3d at 1333. With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including vocational rehabilitation records and records utilized by the Social Security Administration (SSA) in a disability administration, have been secured. The RO arranged for VA examinations in August 2007 and April 2011 (pursuant to the February 2011 Board Remand). These examinations, taken together, are found to be adequate for rating purposes of the issue. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes); see also Stegall, 11 Vet. App. at 268. As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield, 444 F.3d at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." The Court has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, 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 the claims. Back Disability Rating Analysis Service connection for a back disability was granted by the RO in a July 1977 rating decision that assigned a 10 percent evaluation. In a February 1983 decision, the RO reduced the rating to a noncompensable evaluation. The Veteran's back disability rating was increased to 10 percent disabling in a January 1987 rating decision, and increased again to 20 percent disabling in an October 2007 rating decision. The Veteran submitted a claim for a higher rating for his service-connected back in November 2007. The RO continued the Veteran's evaluation of 20 percent disabling for a back disability under the provisions of Diagnostic Code 5242 in a January 2008 rating decision, which gave rise to this appeal. The rating was increased to 40 percent disabling in a September 2012 rating decision. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 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. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, 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 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) provides that, 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) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which 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. 38 C.F.R. § 4.71a. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also Diagnostic Code 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note (1). In August 2007, the Veteran underwent a VA examination of the back. There, the examiner noted the Veteran's history of back injury in service. The Veteran reported having flare-ups with varied frequency (from two to three per month to two to three per week) and severity of 9 out of a scale of 10. The Veteran described having two incapacitating episodes in the past 12 months; however, he also admitted that bed rest was not prescribed by a physician. He did not use an assistive device and he could walk for a mile. He also complained of radiating pain to his left leg. Upon physical examination, the VA examiner indicated that the Veteran had muscle spasms but they did not result in abnormal gait or spinal contour. The Veteran's range of motion was 50 degrees of forward flexion, 20 degrees of extension, 20 degrees of bilateral lateral flexion, and 30 degrees of bilateral rotation. With pain, the Veteran lost 10 degrees of forward flexion. The examiner noted the Veteran's complaint of flare-ups and indicated that there was additional limitation of motion during a flare-up; however, he did not express the additional impairment in degrees and only stated that movement without pain was impossible. Indeed, the examiner already considered additional limitation of motion due to pain in determining that with pain, the Veteran's forward flexion was reduced to 40 degrees. The spine was not ankylosed. The examiner assessed him with mild to moderate degenerative findings and scoliosis. The Veteran underwent a private evaluation of the back in November 2007. At that time, the Veteran complained of back pain and left leg pain. Upon physical examination, the private examiner indicated that the Veteran's gait did not appear to be altered. Range of motion was measured at 80 degrees of flexion with pain, 10 degrees of extension with pain, 20 degrees of left lateral flexion, 10 degrees of right lateral flexion, 30 degrees of left rotation, and 30 degrees of right rotation. The private examiner did not indicate whether the Veteran's function was additionally limited due to pain. In April 2008, the Veteran underwent another private examination of the back pursuant to a February 2008 visit when the Veteran complained of back pain with left sciatic radiating pain. There, the Veteran's range of motion was measured and it appears that his flexion was 16 degrees, suggesting more severe impairment. However, upon closer review, all the range of motion measurements (forward flexion, extension, lateral flexion, and rotation) were based on normal ranges of motion that are different, and less, than those described in 38 C.F.R. § 4.71a, Note 2. It was indicated that normal lumbar flexion was 60, normal extension and lateral flexion were each 25. As such, these measurements are inadequate for VA rating purposes and cannot serve as a basis for a higher disability evaluation. VA treatment records during this period on appeal reflect continued complaints of back pain and treatment. The schedular criteria for the rating of spine disabilities evaluates degenerative arthritis based on limitation of motion under the General Rating Formula for Disease and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243 (2012). Prior to April 4, 2011, the Veteran was in receipt of a 20 percent evaluation for his service-connected back disability. A higher 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. After a full review of the clinical and lay evidence, the Board concludes that prior to April 4, 2011, the Veteran's back disability is not shown to result in forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The most probative evidence of record during this period on appeal is the August 2007 VA examination. Even with consideration of additional limitation due to pain, the Veteran's back disability resulted in, at worst, 40 degrees of forward flexion. His back disability did not demonstrate forward flexion of 30 degrees or less or ankylosis. The August 2007 VA examiner indicated that the Veteran was not additionally functionally limited due to lack of endurance, weakness, or fatigue. The Veteran had measurable ranges of motion in the spine and he did not have ankylosis of the spine. Therefore, the Board finds that even with consideration of the Veteran's functional loss, prior to April 4, 2011, the Veteran's disability picture does not meet the criteria described for a 40 percent rating under Diagnostic Code 5242. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca, 8 Vet. App. at 206-7. In April 2011, the Veteran was afforded a VA examination of the back pursuant to the February 2011 Board Remand. There, he complained that he was stiffer and in pain when trying to bend forward. He had difficulty falling asleep so he had to sit up in a chair and then sleep on the floor. He could not help with housework or yard work due to the pain and could only drive short distances. The Veteran reported having flare-ups every two to three weeks, lasting one to two days. The VA examiner indicated that the flare-ups result in 75 percent impairment where the Veteran just does the basic activities of daily living. The examiner did not indicate that there was additional limitation of motion due to the flare-ups. Also, while the Veteran reported that he voided two times per night, the examiner noted that the Veteran did not have a history of urinary incontinence, urinary urgency, urinary retention, urinary frequency, fecal incontinence, obstipation, erectile dysfunction, paresthesias, leg or foot weakness, or falls. The Veteran used an orthotic insert, a cane, and a brace. He did not have incapacitating episodes of his back disability. Upon physical examination, the April 2011 VA examiner indicated that the Veteran had normal posture but a slightly slowed and antalgic gait. This did not result in gibbus, kypohsis, lumbar lordosis, reverse lordosis, list. The Veteran did have lumbar flattening and scoliosis. The examiner noted no lumbosacral ankylosis. Range of motion was measured at 30 degrees of flexion with pain, 10 degrees of extension with pain, 10 degrees of bilateral lateral flexion with pain, and 15 degrees of bilateral rotation with pain. Although the examiner indicated objective evidence of pain following repetitive motion, she also indicated that there were no additional limitations after three repetitions of range of motion. The examiner assessed him with moderate to severe disc dessication and disc space narrowing with focal anterior and posterior disc protusions. From April 4, 2011, the Veteran was assigned a 40 percent evaluation for his service-connected back disability. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. The April 2011 VA examination reflects, at worst, and taking into consideration limitation of motion due to pain, 30 degrees of forward flexion with objective evidence of pain with range of motion testing. The Veteran had measurable ranges of motion in the spine and he did not have ankylosis of the spine. The Board finds that only with consideration of the Veteran's range of forward flexion with pain, from April 4, 2011, forward, that a 40 percent evaluation is justified. Range of motion of the thoracolumbar spine did not approximate unfavorable ankylosis of the entire thoracolumbar spine, even with consideration of functional loss due to pain, as required for a 50 percent rating under Diagnostic Code 5242. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca at 206-7. With regard to both periods on appeal, while the Board found the Veteran was credible in reporting the presence of pain in the back, the Board finds that the Veteran is not credible when he asserted in a March 2009 substantive appeal that his range of motion was much worse than indicated on the August 2007 VA examination. The Board finds, with respect to the Rating Schedule, that measurements of joint motion generally require medical expertise which the Veteran has not been shown to have. Such range of motion measures are conducted by trained examiners with the subject in specific positions. The examiner is trained in determining end ranges of motion based on active/passive findings, indications of physical limitation, notation of observed grimacing or other indicators of pain, and assessment of whether the current measures of range of motion are consistent with the physical findings and other indicia such as muscle tone or wasting. These types of findings are not readily undertaken by a lay person. Both August 2007 and April 2011 VA examiners provided specific measurements for range of motion in degrees, and additionally, the August 2007 examination showed that the Veteran did have a 10 degree decrease of forward flexion due to pain, with consideration of the DeLuca criteria. See DeLuca at 202. Therefore, with respect to objective measurements for range of motion in the thoracolumbar spine, the medical findings provided in the VA medical examination reports have accorded probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The Board has also considered whether a higher evaluation is warranted under Diagnostic Code 5243 both prior to and from April 4, 2011, forward. Diagnostic Code 5243 contemplates ratings for intervertebral disc syndrome based on incapacitating episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The Board has considered whether the Veteran's service-connected back disability has resulted in incapacitating episodes and the duration of any such episodes as described under Diagnostic Code 5243. During the August 2007 VA examination, the Veteran reported having flare-ups with varied frequency (from two to three per month to two to three per week) and severity of 9 out of a scale of 10. The Veteran also described having two incapacitating episodes in the past 12 months. Importantly however, the Veteran himself admitted that these were not shown to be incapacitating under 38 C.F.R. § 4.71a, Note (1), such that he required bed rest prescribed by a physician. The April 2011 VA examination report explicitly indicated that the Veteran had no incapacitating episodes of the back during the past year. And, no incapacitating episodes due to back pain were indicated by the Veteran's VA and private treatment records throughout both periods on appeal. The Board finds, therefore, that both prior to and from April 4, 2011, forward, the Veteran is not shown to have incapacitating episodes which required bed rest prescribed by a physician secondary to his back disability. Therefore, a higher evaluation is not assignable under Diagnostic Code 5243. After careful review of the available diagnostic codes and all the evidence of record, lay and medical, the Board does not find evidence that the ratings assigned for the Veteran's back disability should be increased for any other separate period based on the facts found during either appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within either period on appeal. The findings of more serious impairment were first found in April 2011 during the VA examination. As such, evaluations in excess of 20 percent disabling for a back disability prior to April 4, 2011, and in excess of 40 percent disabling from April 4, 2011, forward, are not warranted. See Fenderson, 12 Vet. App. at 119; Hart, 21 Vet. App. at 509. Hence, the claim must be denied. The evidence in this case is not so evenly balanced 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). Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's back disability has manifested in arthritis, painful movement, and limited range of motion. The schedular criteria for rating the back disability (General Rating Formula for Diseases and Injuries of the Spine) specifically provide for ratings based on the presence of painful arthritis; limitations of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca); other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. In this case, comparing the Veteran's disability level and symptomatology of the back to the rating schedule, the degree of disability of the back throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, 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." 38 C.F.R. § 4.1. Here, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the back disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased rating in excess of 20 percent disabling prior to April 4, 2011 for a back disability, and in excess of 40 percent disabling thereafter, is denied. REMAND VA regulations provide that where the Veteran is unemployable by reason of service-connected disabilities and fails to meet the percentage standards under 38 C.F.R. § 4.16(a), the case must be submitted to the Director of Compensation and Pension Service for extraschedular consideration. See 38 C.F.R. § 4.16(b) (2012); Barringer v. Peake, 22 Vet. App. 242 (2008); see also Rice v. Shinseki, 22 Vet. App. 447 (2009) (Since the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the Veteran or is reasonably raised by the evidence of record.). The Veteran does not meet the percentage standards under 38 C.F.R. § 4.16(a) with the exception of a brief period from April 4, 2011 to June 25, 2012. In light of the evidence of record regarding the effect of his service-connected disabilities, particularly his back and bilateral lower extremity radiculopathy, on his employment during the applicable time period, the Board finds that the issue of entitlement to TDIU on an extraschedular basis should be referred to the Director of the Compensation and Pension Service for appropriate development. In this regard, the April 2011 VA examination report shows that the Veteran reported that he was unemployed and had stopped working in 2007 due to back pain and having to drive too much. He also indicated that medication made his sleepy. At the hearing in December 2010, he testified that he had to leave is job due to excess standing and the trauma to the back. The VA examiner noted that due to the severity of pain in standing and walking and limited range of motion of the spine, the Veteran would have difficulty working a full-time job. Remand of the claim for a TDIU is also warranted for additional medical inquiry. The April 2011 examination report regarding the back and neurological disabilities did not adequately address whether the Veteran's service-connected disabilities, alone, render him unemployable under VA guidelines. While the examiner discussed physical impacts and sedentary employment, she did not render an opinion as to whether the Veteran's service-connected disabilities, alone, render him unable to secure or maintain substantially gainful employment. See 38 C.F.R. §§ 3.321, 4.16 (2012). Accordingly, the issue of a TDIU is REMANDED for the following action: 1. If possible, request that the medical professional who conducted the April 2011 VA examination review the claims file and provide an addendum medical opinion. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report (another examination of the Veteran is not required). If the April 2011 examiner is not available, obtain the requested opinion from another medical professional. If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion as to the service-connected disabilities' impact on employability, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities, either individually or in concert, render him unable to obtain or retain substantially gainful employment? The opinion should consider the Veteran's education, special training, and previous work experience, but should not consider his age or the effect of any non-service-connected disorders. The service-connected disabilities are a back disability, left and right lower extremity radiculopathy, minimal bone spur with tenderness of the left ankle, tinnitus, left hand residual fracture of the right base of the fourth finger, and bilateral hearing loss. The term "at least as likely as not" does not mean merely within the realm of possibility, but that the evidence for and against a conclusion is so evenly divided that it is as sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. The opinion should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 2. Refer the Veteran's claim for a TDIU to the Director of Compensation and Pension Service for consideration of the assignment of an extraschedular rating. 38 C.F.R. § 4.16(b) (2012). 3. After completion of the above and any additional development deemed necessary, entitlement to a TDIU should be adjudicated in light of all the evidence of record, to include on an extraschedular basis. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs