Citation Nr: 1308167 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 07-30 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability rating for lumbosacral myositis in excess of 30 percent from July 19, 2004 to August 12, 2009 and 40 percent therefrom. 2. Entitlement to an initial compensable disability rating for arterial hypertension associated with diabetes mellitus, type 2. 3. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity neuropathy, right common peroneal nerve, associated with lumbosacral myositis. 4. Entitlement to an initial disability rating in excess of 10 percent for right knee disability. 5. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service in the United States Army from September 1979 to September 1983; January 1991 to June 1991; and, January 2003 to July 2004. These matters are before the Board of Veterans' Appeals (the Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. By that rating action, the RO, in part, awarded service connection for lumbosacral myositis, and an initial 40 percent disability rating was assigned, effective July 19, 2004--the day following the Veteran's discharge from military service. The RO also awarded service connection for the following disabilities: (i) arterial hypertension, an initial noncompensable disability rating was assigned, effective July 19, 2004; and (ii) right knee disability and right lower extremity radiculopathy, right common peroneal nerve associated with the service-connected low back disability, an initial 10 percent disability ratings were assigned, effective July 19, 2004. The RO also denied serviced connection for a depressive disorder. The Veteran appealed the RO's assignment of the initial disability ratings assigned to the above-cited service-connected disabilities and the denial of service connection for a depressive disorder to the Board. By a March 2010 rating action, the RO assigned an initial 40 percent disability rating to the service-connected low back disability, effective August 12, 2009--the date of a VA examination report reflecting an increase in severity of this disability. The Veteran is presumed to be seeking the maximum possible evaluation. See AB v. Brown, 6 Vet. App. 35 (1993) (while a claimant is presumed to be seeking the maximum benefit available under law, the claimant can choose to limit the claim to a lesser benefit). Thus, the issue with respect to the above-cited service-connected disability remains on appeal and has been framed as that reflected on the title page. Also developed for appellate consideration was the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). By a February 2011 rating action, the RO granted an award of entitlement to TDIU, effective October 1, 2009--the date the Veteran met the basic schedular criteria for an award of TDIU. This represents a complete grant of the benefit of TDIU. Thus, the Board does not have jurisdiction over this issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (Board cannot possess jurisdiction over an issue where a rating decision constituted a full award of the benefit sought on appeal). The issues of entitlement to an initial compensable disability rating for arterial hypertension associated with diabetes mellitus, type 2; entitlement to an initial disability rating in excess of 10 percent for right lower extremity neuropathy, right common peroneal nerve, associated with lumbosacral myositis; entitlement to an increased disability rating in excess of 10 percent for right knee disability; and, entitlement to service connection for an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period from July 19, 2004 to August 12, 2009, the service-connected lumbosacral myositis was manifested by subjective complaints of pain and clinical evidence of forward flexion of the thoracolumbar spine limited, at most, to 60 degrees; favorable ankylosis of the thoracolumbar spine and intervertebral disc syndrome were not demonstrated. 2. For the period from August 12, 2009 to the present, the service-connected lumbosacral myositis has been manifested by subjective complaints of acute and sharp pain into the right lower extremity, with clinical evidence of spasms, pain on motion, and weakness; unfavorable ankylosis of the entire thoracolumbar spine and intervertebral disc syndrome are not demonstrated. CONCLUSIONS OF LAW 1. For the period from July 19, 2004 to August 12, 2009, the criteria for an initial disability rating in excess of 30 percent for lumbosacral myositis were not met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5237 (2012). 2. For the period from August 12, 2009 to the present, the criteria for an initial disability rating in excess of 40 percent for lumbosacral myositis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Before addressing the merits of the issue of entitlement to an initial disability rating in excess of 30 percent from July 19, 2004 to August 12, 2009 and 40 percent therefrom, VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. With respect to the Veteran's claim for a higher initial disability rating for his service-connected thoracolumbar spine disability, the Board notes 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. See Dingess, 19 Vet. App. at 490-91; see also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, because service connection for the Veteran's thoracolumbar spine disability has already been granted, VA's VCAA notice obligations with respect to the issue of entitlement to a higher initial evaluation for this disability are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) [where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements]. Concerning VA's duty to assist, the Board notes that the Veteran's service treatment records (STRs), post-service VA and private treatment records, Social Security Administration records, and his lay statements have been obtained. In addition, private treatments records that have been translated from Spanish into English are contained within the claims files. Neither the Veteran nor his representative has identified any outstanding evidence, to include any other medical records that could be obtained to substantiate the Veteran's appeal. With respect to VA examinations conducted in conjunction with this appeal, the Board observes that the findings contained therein are more than adequate to adjudicate the Veteran's claim. The Veteran appeared for VA spine examinations in March 2005, October 2006 and August 2009. These examination reports reflect that each VA examiner reviewed the Veteran's past medical history, recorded the Veteran's complaints, conducted an appropriate examination, and rendered appropriate diagnoses consistent with the other evidence of record. Although the Veteran's spine was last evaluated over three years ago, the Board does not believe that the medical evidence of record in this case is too old to adequately evaluate the severity of the Veteran's service-connected thoracolumbar spine disability. The Veteran has not stipulated that his thoracolumbar spine disability symptoms have worsened in severity since his August 2009 examination, and no evidence of record submitted after that time suggests that there has been a change in the severity of such disability. Thus, the Board does not believe that the medical evidence of record in this case is too old to adequately evaluate the Veteran. See VAOPGCPREC 11-95 [a claim need not be remanded solely because of the passage of time when an otherwise adequate VA examination was conducted]; see also Palczewski v. Nicholson, 21 Vet. App. 174 (2007) [another VA examination is not warranted based on the mere passage of time]. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claim has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issue on appeal were insignificant and nonprejudicial to the Veteran. Moreover, he has been accorded ample opportunity to present evidence and argument in support of the claim decided herein. See 38 C.F.R. § 3.103 (2012). Accordingly, the Board will address the issue of entitlement to an initial disability rating in excess of 30 percent from July 19, 2004 to August 12, 2009 and 40 percent therefrom in the decision below. II. Legal Criteria The Board has thoroughly reviewed all of the evidence in the Veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the increased evaluation claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with [as in this case], it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. 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. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates functional loss due to pain, weakness, excess fatigability, or incoordination, pursuant to 38 C.F.R. §§ 4.40 and 4.45, if such factors are not contemplated in the relevant rating criteria. The diagnostic codes pertaining to range of motion do not subsume 38 C.F.R. §§ 4.40 and 4.45. Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 20 (1995). The current schedular criteria under the General Rating Formula for Diseases and Injuries of the Spine provides as follows: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). For purposes of VA compensation, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71, Plate V (2012) as well as Note (2) to the General Rating Formula for Diseases and Injuries of the Spine. III. Legal Analysis The Veteran seeks an initial disability rating for lumbosacral myositis in excess of 30 percent from July 19, 2004 to August 12, 2009 and 40 percent therefrom. He contends that higher disability ratings in excess of 30 and 40 percent are warranted for the prescribed periods on appeal. The Board will address each period separately in its analysis below. By a September 2005 rating action, the RO awarded service connection for lumbosacral myositis, and an initial 30 percent rating was assigned, effective July 19, 2004, under Diagnostic Code-5237 [lumbosacral strain]. The RO indicated that the 30 percent disability rating encompassed findings of forward flexion of the lumbar spine to 60 degrees at a March 2005 VA examination, a finding that is commensurate with a 20 percent disability rating under the current schedular criteria, and an extra 10 percent for pain on flexion of the lumbar spine at 40 degrees. (See September 2005 rating action, page (pg.) 2)). The above-cited March 2005 VA examination report reflects that the Veteran was diagnosed, in part, as having lumbosacral strain-myositis. (See March 2005 VA spine examination report). This same examination report also reflects that a magnetic resonance imaging scan (MRI) of the Veteran's lumbar spine, performed in March 2004, showed the presence of degenerative disc disease at L3-4 and L5-S1. (See March 2005 VA spine examination report, page (pg.) 8)). Thus, the Board could also evaluate the Veteran's service-connected low back disability under Diagnostic Code 5242 [degenerative arthritis of the spine]. The Board notes that because all disorders of the spine are covered under Diagnostic Codes 5235-5242 and are rated under the General Rating Formula for Diseases and Injuries of the Spine, the Board will use Diagnostic Code 5237 for evaluating the Veteran's low back disability. In light of the Veteran's disc disease diagnosis, the Board has also considered rating the Veteran's entire thoracolumbar disability alternatively under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes instead of the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Crucially, however, a compensable rating under this Formula requires the Veteran to have experienced incapacitating episodes, with bed rest as prescribed by a physician. See Note (1). In this case, the medical evidence does not reflect, nor does the Veteran contend, that he has ever been prescribed bed rest for his low back disability. In fact, at the March 2005 VA examination, the examiner specifically concluded that the Veteran had not been hospitalized in the previous year due to IVDS. An August 2009 VA examiner reported that the Veteran had not had any incapacitating episodes relating to his lumbar spine. (See March 2005 and August 2009 VA spine examination reports). Thus, the Veteran's service-connected low back disability will be rated using the General Rating Formula for Diseases and Injuries of the Spine, and not the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board has considered rating the Veteran's thoracolumbar spine disability under Diagnostic Code 5003 [arthritis], but has determined that doing so would also not avail the Veteran. Diagnostic Code 5003 specifies that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. As noted above, all thoracolumbar spine disabilities, with the exception of intervertebral disc syndrome, are rated using the same criteria-the General Rating Formula for Diseases and Injuries of the Spine-which already include consideration of any limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). (i) Period from July 19, 2004 to August 12, 2009 The Board finds that for the period from July 19, 2004 to August 12, 2009, an increased disability rating in excess of 30 percent is not warranted. As noted above, to warrant a 40 percent rating under the General Ratings Formula, there must be evidence of flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Neither one of these criteria has been met during the prescribed period. At a March 2005 VA examination, flexion of the lumbar spine was limited, at most, to 60 degrees. At an October 2006 VA examination, the examiner noted that the Veteran had refused range of motion testing of the spine because it caused him to develop severe pain. At both of these examinations, the examiners specifically concluded that there was no evidence of any ankylosis of the lumbar spine. (See March 2005 and October 2006 VA examination reports. Thus, because the Veteran's limitation of flexion has never been shown to be 30 degrees or less, nor is there evidence of favorable ankylosis of the entire thoracolumbar spine, the assignment of a higher 40 percent rating is not warranted for service-connected low back disability for the period from July 19, 2004 to August 12, 2009. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca for the above-cited rating period. The Board finds that an increased evaluation for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness for the period from July 19, 2004 to August 12, 2009. During this period, the Veteran has complained of daily low back pain that lasted for several hours. He indicated that he used a cane to ambulate and that he could only walk for 10 minutes. (See March 2005 VA examination report). Yet, that same report showed that the Veteran had forward flexion of the lumbar spine to 60 degrees. Although the Veteran refused range of motion testing of his lumbar spine at an October 2006 VA examination, a March 2005, a VA examiner concluded that there was no evidence of any lack of endurance, fatigue or weakness on repeated flexing of the lumbosacral area. In addition, despite the Veteran's complaints of pain on range of motion testing of the lumbar spine during the March 2005 VA examination, he demonstrated forward flexion to 60 degrees, which is greater than that required for a 40 percent disability rating (i.e., forward flexion of the thoracolumbar spine to 30 degrees or less) under the General Rating Formula. The Board finds that the Veteran is competent to report that he has pain and to observe and report any functional limitations. However, here, the clinical evidence pertaining to the Veteran's back disability is more probative for the purposes of assigning a current rating for the disability at issue in conjunction with the relevant rating criteria - and the Board finds that the pain and functional impairment reported has been appropriately considered in assigning the current ratings consistent with the documented symptoms. Therefore, the Board finds that the evidence does not more closely approximate the criteria contemplated by the assignment of a higher disability rating [40 percent] under 38 C.F.R. §§ 4.40 and 4.45 during this period of time. For these reasons, the Board concludes that the preponderance of the evidence is against the claim. Therefore, the benefit-of-the-doubt doctrine does not apply. (ii) Period from August 12, 2009 to the present The Board finds that for the period from August 12, 2009 to the present, an increased disability rating in excess of 40 percent for the service-connected low back disability is not warranted. As noted above, to warrant a 50 percent rating under the General Ratings Formula, there must be evidence of unfavorable ankylosis of the entire thoracolumbar spine. This has not been met in this case. At the August 2009 VA examination, the examiner specifically noted that there was no evidence of any ankylosis. Thus, the assignment of a higher 50 percent rating is not warranted for service-connected low back disability for the period from August 12, 2009, to the present. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca for the period from August 12, 2009 to the present. The Board observes that the Veteran complained of acute and severe low back pain and tenderness, stiffness and weakness of the lumbar spine, as well as spasms, which render him unable to walk more than a few yards The Board finds the Veteran's descriptions of his own spine symptomatology both competent and credible. The Board that the forward flexion of the Veteran's lumbar spine was limited to five (5) degrees at an August 2009 VA spine examination. (See August 2009 VA spine examination, pg. 9). At that examination, the Veteran maintained that his lumbar spine was too painful to perform repetitions of range of motion of the lumbar spine. Although the August 2009 VA examiner found that the Veteran's low back disability prevented him from performing chores and severely limited his ability to perform daily activities, such as bathing, shopping, and exercising, there is no indication in any other treatment report of record, that pain, weakness, fatigability, or stiffness causes such additional limitation of motion of the spine that resulted in unfavorable ankylosis of the entire thoracolumbar spine, as is required for the assignment of the next highest disability rating [50 percent] under the General Rating Formula. Thus, while it is clear that the Veteran experiences function loss due to his pain, weakness and stiffness, such loss does not closely approximate the criteria contemplated by the assignment of a higher disability rating [50 percent] under 38 C.F.R. §§ 4.40 and 4.45. The Board finds that the Veteran is competent to report that he has pain and to observe and report any functional limitations. However, here, the clinical evidence pertaining to the Veteran's back disability is more probative for the purposes of assigning a current rating for the disability at issue in conjunction with the relevant rating criteria - and the Board finds that the pain and functional impairment reported has been appropriately considered in assigning the current ratings consistent with the documented symptoms. Therefore, the Board finds that the evidence does not more closely approximate the criteria contemplated by the assignment of a higher disability rating [50 percent] under 38 C.F.R. §§ 4.40 and 4.45 during this period of time. For these reasons, the Board concludes that the preponderance of the evidence is against the claim. Therefore, the benefit-of-the-doubt doctrine does not apply. (iii) Other Considerations The Board has also considered whether a separate disability rating would be appropriate for neurological findings under the diagnostic codes pertinent to rating neurological disorders. Indeed, Note (1) under the General Rating Formula directs VA to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See Bierman v. Brown, 6 Vet. App. 125 (1994); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994) [separate disabilities arising from a single disease entity are to be rated separately]. A separate service-connection award is already in effect for diabetic peripheral neuropathy of the left lower extremity and right lower extremity neuropathy of the right common peroneal nerve that have been attributed to his service-connected diabetes mellitus and low back disability, respectively. An October 2006 VA Peripheral Nerve examination report reflects that the Veteran had symptoms that were suggestive of peripheral neuropathy and radiculopathy in the lower extremities, as confirmed by electrodiagnostic studies. The examiner concluded that the Veteran's diabetic peripheral neuropathy of the lower extremities and right common peritoneal diabetic neuropathy were not due to his serviced-connected lumbosacral myositis, but were the result of his service-connected diabetes. The October 2006 VA examiner reasoned that diabetes was the most frequent cause of metabolic neural neuropathies. As such, the evidence of record does not reflect that any other additional neurological deficiency exists that would warrant the assignment of a separate disability rating under the diagnostic codes pertinent to rating neurological disorders. The Veteran's right low back symptoms have remained constant throughout the course of the period on appeal as demonstrated by similar findings on VA examinations in 2005, 2006 and 2009. As such, staged ratings are not warranted for the low back disability other than those previously awarded for the prescribed periods on appeal. See Fenderson, supra. In evaluating the Veteran's claims for initial ratings for his lumbosacral myositis in excess of 30 and 40 percent for the prescribed periods on appeal, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, VA's Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, 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. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. 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 first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the 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 Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected low back disability are inadequate. A comparison between the level of severity and symptomatology of the service-connected low back disability, with the established criteria found in the rating schedule for this disability shows that the rating criteria reasonably describes the Veteran's low back disability level and symptomatology, as discussed above. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his low back disability. There is no persuasive evidence in the record to indicate that the service-connected low back disability on appeal would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 (2012) specifically sets out that "[g]enerally, the degrees of disability specified 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." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected disabilities have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disabilities contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this instance, the benefit of the doubt doctrine, however, is not applicable with regard to the Veteran's claim because the preponderance of the evidence is against ratings in excess of those currently assigned for the service-connected low back disability for the prescribed periods on appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. As noted in the Introduction, by a February 2011 rating action, the Board awarded the Veteran TDIU. Thus, no further discussion on this matter is warranted. ORDER An initial disability rating in excess of 30 percent for the period from July 19, 2004 to August 12, 2009 and 40 percent therefrom is denied. REMAND By a September 2005 rating action, the RO, in part, determined awarded service connection for the following disabilities: (i) arterial hypertension, and an initial noncompensable disability rating was assigned, effective July 19, 2004; (ii) and, right knee disability and right lower extremity radiculopathy associated with the service-connected low back disability, and initial 10 percent disability ratings were assigned, effective July 19, 2004. The RO also denied serviced connection for a depressive disorder. The Veteran was informed of the RO's decision in October 2005. The Veteran disagreed with the initial noncompensable and 10 percent disability ratings assigned to the above-cited service-connected disabilities and the denial of service connection for a depressive disorder. (See VA Form 210413, Statement in Support of Claim, received by the RO in January 2006, wherein the Veteran referenced the September 2005 rating action and indicated that he did not agree with the "disability rating assigned to service connected condition." The Veteran also disagreed with the RO's denial of service connection for his depressive disorder). The RO has not issued a statement of the case (SOC) that addresses the above-cited initial evaluation and service connection claims. The Board notes that, where a claimant files a notice of disagreement and the RO has not issued a SOC, the issue must be remanded to the RO for a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Thus, on remand, the RO should provide the Veteran with a SOC that addresses the above-cited initial evaluation and service connection claims. Accordingly, the case is REMANDED to the RO for the following action: Provide the Veteran and his representative with a SOC on the following issues: (i) entitlement to an initial compensable disability rating for arterial hypertension; (ii) entitlement to an initial disability rating in excess of 10 percent for right knee disability; (iii) entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy; neuropathy, right common peroneal nerve associated with the service-connected low back disability; and, (iv) entitlement to service connection for major depressive disorder. These issues should be returned to the Board only if the Veteran perfects a timely appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ SUSAN J. JANEC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs