Citation Nr: 1309064 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 00-18 696A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right hand/arm carpal tunnel syndrome, including due to undiagnosed illness. 2. Entitlement to service connection for a left arm condition, also including due to undiagnosed illness. 3. Entitlement to an increased initial rating for a skin disorder involving seborrheic dermatitis with post-inflammatory pigmentary alteration, rated as 30-percent disabling prior to February 8, 2007, and as 60-percent disabling since. 4. Entitlement to an extra-schedular rating for this skin disorder. 5. Entitlement to an extra-schedular rating for a low back disability involving degenerative joint disease, i.e., arthritis, as a residual of an injury. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active military service from August 1987 to August 1990 and from November 1990 to June 1991, including in the Southwest Asia Theater of Operations (Operation Desert Storm/Desert Shield) from January to May 1991. This appeal to the Board of Veterans' Appeals (Board/BVA) is from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In a May 2010 decision since issued, the Board, in pertinent part, denied the claims of entitlement to service connection for right hand/arm carpal tunnel syndrome and for a left arm condition. However, the Board increased the rating for the Veteran's skin disorder from 10 to 30 percent for the initial period at issue, that being prior to February 8, 2007, but denied a rating higher than 60 percent for this skin disorder since February8, 2007. The Board also denied his claim for a rating higher than 20 percent for his low back disability. He appealed to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). In a February 2012 single-judge memorandum decision, the Court VACATED the Board's decision denying the claims of entitlement to service connection for right hand/arm carpal tunnel syndrome and a left arm condition. The Court also VACATED the Board's decision denying an initial rating higher than 30 percent for the Veteran's skin disorder, as well as the portion of the Board's decision finding that extra-schedular consideration was unwarranted concerning the ratings for this skin disorder and low back disability. The Court therefore REMANDED these claims to the Board for further proceedings consistent with its decision. The Court, however, AFFIRMED the Board's decision to the extent it had denied a schedular rating higher than 20 percent for the low back disability. The claims for service connection for right hand/arm carpal tunnel syndrome and a left arm condition are being REMANDED to the RO. Whereas the Board instead is going ahead and readjudicating the claims for a higher initial rating for the skin disorder and regarding whether extra-schedular ratings are warranted for this skin disorder and the low back disability. FINDINGS OF FACT 1. The Board's prior May 19, 2010 decision increased the initial rating for the Veteran's skin disorder from 10 to 30 percent for the initial period in dispute, prior to February 8, 2007, and the Appeals Management Center (AMC) since has issued a decision in November 2010 effectuating that grant of this higher rating for this disability; this higher 30 percent rating was made retroactively effective from April 24, 1997, so back to the date of receipt of this claim. 2. During this initial period at issue prior to February 8, 2007, this skin disorder was manifested by constant itching, but not also ulceration, extensive exfoliation, crusting, or systemic or nervous manifestations; it also was not exceptionally repugnant and involved at most 6 percent of the Veteran's total body surface. 3. Effectively since February 8, 2007, he has had an even higher 60 percent rating for this skin disorder, which is the highest possible schedular rating for this disorder under the applicable diagnostic code. 4. This service-connected skin disorder and his low back disability do not present such exceptional or unusual disability pictures with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards regarding these disabilities. CONCLUSIONS OF LAW 1. The criteria are not met for an initial rating higher than 30 percent for the skin disorder prior to February 8, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Codes 7800, 7806 (effective prior to and since August 30, 2002). 2. The criteria also are not met for extra-schedular ratings for this skin disorder and the low back disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.321(b)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance upon receipt of a complete or substantially complete application for benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To this end, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). These VCAA notice requirements apply to all elements of a service-connection claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). As specifically concerning the claims for higher ratings for the skin disorder and low back disability, including on an extra-schedular basis, these claims arise from the initial ratings the RO assigned after granting service connection for these disabilities. In this circumstance, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and lower Veterans Court (CAVC) have held that, where the underlying claim for service connection has been granted and there is disagreement regarding a "downstream" issue, such as an initial rating, the claim as it arose in its initial context has been substantiated, so the purpose of § 5103(a) notice served, and there is no need to provide additional VCAA notice concerning the "downstream" rating issue. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a statement of the case (SOC) if the disagreement concerning the "downstream" issue is not resolved. Since the RO provided the Veteran this required SOC citing the statutes and regulations governing the assignment of disability ratings (including, as here, initial disability ratings) and discussing the reasons and bases for not assigning higher initial ratings, he has received all required notice concerning his claims. There is no pleading or allegation that he has not received all required notice concerning his claims. There was no mention of this in the Court's February 2012 single-judge memorandum decision or even in the additional argument the Veteran's attorney since has submitted in December 2012. And as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing a VCAA notice error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claims. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Thus, absent this pleading or showing, the Board finds that the duty to notify him concerning his claims has been satisfied. VA also fulfilled its duty to assist him by obtaining all potentially relevant evidence in support of these claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO and AMC obtained all pertinent records that he and his representative identified as possibly relevant to these claims. These records include VA and private treatment records, as well as records pertaining to his award of Social Security Administration (SSA) benefits. 38 C.F.R. § 3.159(c)(1) and (c)(2). See also Lind v. Principi, 3 Vet. App. 493, 494 (1992); Marciniak v. Brown, 10 Vet. App. 198, 204 (1997); and Murincsak v. Derwinski, 2 Vet. App. 363 (1992). See, too, Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (clarifying that VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim). In addition, he was provided several VA compensation examinations assessing and reassessing the severity of his service-connected skin disorder and low back disability. The findings from these examinations provide the information needed to properly rate these disabilities, including insofar as determining whether they warrant extra-schedular consideration. 38 C.F.R. §§ 3.327, 4.2. See also Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board is not obligated to remand a claim merely because of the passage of time since an otherwise adequate VA examination, so not just as a matter of course. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Given all that has occurred, at least as concerning these claims being readjudicated in this decision, it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate these claims. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any meaningful or useful purpose or result in any significant benefit to the Veteran). II. Higher Initial Rating for the Skin Disorder Involving Seborrheic Dermatitis with Post-Inflammatory Pigmentary Alteration By way of history, in April 1997, the Veteran filed a claim for service connection for a rash on his back, shoulders, and neck. In August 1999, the RO granted service connection for this condition and assigned an initial 10 percent rating retroactively effective from April 24, 1997, the date of receipt of this claim. He appealed for a higher initial rating for this disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (holding that, when a Veteran timely appeals his initial rating, VA must consider whether to "stage" the rating to compensate him for times since the effective date of his award when his disability may have been more severe than at other times during the course of his appeal). During the pendency of his appeal, his rash was recharacterized as seborrheic dermatitis with post- inflammatory pigmentary alteration. In an October 2008 rating decision, the RO granted an increased rating to 60 percent for this disability as of February 8, 2007, the date on which a VA examination had showed it met the requirements for this higher rating under the applicable rating criteria. Also, in the Board's more recent May 2010 decision, the initial 10 percent rating prior to February 8, 2007, was increased to 30 percent. As such, the rating for the Veteran's skin disorder already has been "staged" since he had a 30 percent rating for this condition until February 8, 2007, when the rating increased to 60 percent. 60 percent is the highest possible schedular rating under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806. There remains for consideration, however, whether he was entitled to an initial rating higher than 30 percent for this skin disorder prior to February 8, 2007, more specifically, from April 24, 1997 to February 7, 2007. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed a Veteran is seeking the highest possible rating for a disability for all time periods at issue, absent express indication to the contrary). Also still at issue is whether he is entitled to a higher rating for this disability on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1), so even since receiving the highest possible schedular rating of 60 percent for this disability as of February 8, 2007. See Bagwell v. Brown, 9 Vet. App. 337 (1996). In the February 2012 Memorandum Decision the Court found that the Board had failed to provide adequate reasons and bases for why the Veteran did not deserve a rating higher than the assigned 30 percent prior to February 8, 2007. In particular, the Court found that the Board did not provide an adequate statement of reasons and bases as to why the appellant's condition was not "exceptionally repugnant." The Court explained that this "exceptionally repugnant" standard is a subjective rather than objective question requiring the Board to make a determination concerning this on its own, such as from the observations gleaned from the various examiners that have had occasion to evaluate the Veteran's skin disability. Additionally the Court found that the Board had failed to provide adequate reasons and bases with regards to the question of whether the Veteran's skin condition involved more than 40 percent of exposed area. Specifically, the Board had failed to explain why it was a "safe assumption" that the Veteran's skin condition covered less than 40 percent of his entire body or 40 percent of exposed areas. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). 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 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. For this initial period at issue, the Veteran has a 30 percent rating which acknowledges there is constant exfoliation or itching, extensive lesions, or marked disfigurement. The next higher rating of 50 percent is assigned for dermatitis with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or an exceptionally repugnant condition. See 38 C.F.R. § 4.118, DC 7806 (prior to August 30, 2002). Since the Veteran's skin condition also involves his neck, and on one occasion his face, the Board will additionally consider DC 7800 for disfigurement of the head, face and neck. At the time he filed his claim, a 10 percent rating was warranted for moderate disfigurement of the head, face, or neck; a 30 percent rating for severe disfigurement of the head, face, or neck, especially if producing a marked and unsightly deformity of eyelids, lips, or auricles; and a 50 percent rating for disfigurement with complete or exceptionally repugnant deformity of one side of face or marked or repugnant bilateral disfigurement. See 38 C.F.R. § 4.118, DC 7800 (prior to August 30, 2002). During the course of this appeal, VA issued new regulations for evaluating skin disabilities, effective August 30, 2002. See 67 Fed. Reg. 49590-49599 (July 31, 2002). The Board is required to consider the claim in light of both the former and revised schedular rating criteria to determine whether an increased rating for the Veteran's skin condition is warranted. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. The amended rating criteria, if more favorable to the claim, can be applied only prospectively, however, for periods from and after the effective date of the regulatory change. But the Veteran gets the benefit of having both the former and revised standards considered for the period after the change was made. See VAOPGCPREC 3-2000 Under the revised criteria, DC 7806 provides a 30 percent rating if there is evidence of exposure from 20 percent to 40 percent of the entire body, or 20 percent to 40 percent of exposed areas affected; or the need for systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. 38 C.F.R. § 4.118, DC 7806 (effective August 30, 2002). The highest rating allowable pursuant to this Code, 60 percent, requires evidence of exposure of more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or the need for constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. Id. Under the new criteria of DC 7800, a 10 percent rating is assigned for a scar of the head, face, or neck with one characteristic of disfigurement. A 30 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with two or three characteristics of disfigurement. 38 C.F.R. § 4.118 (effective August 30, 2002). A 50 percent evaluation is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement. Id. Finally, an 80 percent evaluation is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Id. The eight characteristics of disfigurement include: (1) Scar 5 or more inches (13 or more cm.) in length; (2) Scar at least one-quarter inch (0.6 cm.) wide at its widest part; (3) Surface contour of scar elevated or depressed on palpation; (4) Scar adherent to underlying tissue; (5) Skin hypo or hyperpigmented in an area exceeding six square inches (39 sq. cm.); (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id. Applying these criteria to the facts of this case, the Board finds that, although the Veteran's skin condition meets the criteria for an initial 30 percent rating for the entire period prior to February 8, 2007, under the old criteria, the evidence does not support a disability rating higher than 30 percent during this initial period. From the initial grant of service connection on April 24, 1997 until February 8, 2007, the evidence shows his skin condition was manifested by constant itching, as he described during a March 1998 VA examination, during a personal hearing held at the RO in May 2000, as well during subsequent VA examinations. Since constant itching, alone, is sufficient for a 30 percent rating under the old criteria of DC 7806, his skin condition clearly meets the criteria for a 30 percent rating for the entire period prior to February 8, 2007. See Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). But the Board finds no basis to assign an even greater rating during this initial period, under either the former or revised standards. There is no suggestion his skin condition caused ulceration, extensive exfoliation or crusting; that there has been any associated systemic or nervous manifestations; or that it was exceptionally repugnant, as required for a higher 50 percent rating under the old criteria. Three VA examination reports provide evidence against this higher rating. The March 1998 VA examination report notes that a melanotic rash was present on the Veteran's mid and upper back, upper chest, and neck, which the examiner specifically stated did not involve any ulceration, exfoliation, or crusting. The examiner also found no associated systemic or nervous manifestations. The diagnosis was melanotic rash, extensive, on the neck and trunk. A June 2000 VA examination report also notes that slightly hypopigmented dermatitis was observed on the Veteran's back, chest, shoulders, and posterior neck area. However, the examiner made no indication that this condition caused ulceration, exfoliation, or crusting, or that there were associated systemic or nervous manifestations. Moreover, while there is evidence of hypopigmented dermatitis, which is one of the eight characteristics of disfigurement, there is no evidence this covered an area greater than 39 square cm, and as it is only one of the eight characteristics it would not entitle the Veteran to a rating greater than 10 percent. See 38 C.F.R. § 4.118, DC 7800 (effective August 30, 2002). There was no indication the Veteran's skin disorder was repugnant, demonstrated visible tissue loss, deformity of one side or the face or bilateral disfigurement, or covered more than 40 percent of his entire body. See 38 C.F.R. § 4.118, DCs 7800 and 7806 (effective prior to and after August 30, 2002). Not all of the VA examinations pertaining to the skin included an estimation of the total body area involved or the percentage of exposed areas affected. However, an April 2003 VA examination report noted the Veteran's rash on his chest and neck covered just 6 percent of his total body area. The rash was described as a symmetrical, hyperpigmented, maculopapular rash, extending from the anterior neck to an inch above his nipples, and measured 37 cm x 16 cm. A similar rash extended from the posterior hairline and covered his neck. Again, while it is noted that the rash covered the neck and was hyperpigmented, it did not cover an area greater than 39 cm squared as required to be considered a characteristic of disfigurement or involvement of more than 40 percent of the total body area or exposed area. See 38 C.F.R. § 4.118, DC 7800 (effective August 30, 2002) and DC 7800 (effective prior to August 30, 2002). Additionally there was no evidence of deformity of the face or bilateral disfigurement, visible tissue loss, gross distortion, or suggestion the skin condition was repugnant. In sum, none of these examination reports indicates the Veteran's skin disorder was manifested by ulceration, extensive exfoliation, or crusting. Indeed, to the contrary, the March 1998 report specifically commented there was no evidence of these symptoms. The March 1998 report also notes there were no associated systemic or nervous manifestations. So, as even the Court's single-judge memorandum decision concedes, the Appellant-Veteran has not pointed to any evidence refuting the "objective" part of the test under DC 7806. Instead, he argues with the Board's finding in the second "subjective" part of the test, that there is no evidence that his skin condition is "exceptionally repugnant"; specifically, the Board's finding that none of the reports describe the skin condition as such. Citing to its holding in Buczynski v. Shinseki, 24 Vet. App. 221, 225 (2011), the Court pointed out that it had found a similar statement by the Board insufficient for concluding the Veteran's skin condition was not exceptionally repugnant. But while it is true the Board, itself, must make this assessment, it is equally true the Board makes this determination from the observations of the examiners that have had occasion to evaluate the Veteran's disability. So seeing as though the examiners were specifically requested to comment on the severity of the skin disorder in relation to the applicable rating criteria, the mere fact that none described this skin disorder in this or similar descriptive terms suggest it did not have this required level of appearance. It seems illogical that there would have been exceptional repugnance, something that seemingly would be very evident even to casual observation since so readily apparent, and yet the examiner not give this indication in some form or fashion - especially, again, since specifically charged with the responsibility of commenting on the various aspects of the skin disorder, so including its appearance. Thus, the Board deems it reasonable to conclude this was not shown, else, it would have been reported since relevant to the rating for this disability. Consequently, there simply is no basis for assigning an initial rating higher than 30 percent under the former criteria. There also is no basis for assigning a rating higher than 30 percent under the revised criteria, which require evidence of exposure of more than 40 percent of the entire body or more than 40 percent of exposed areas. The April 2003 examination report noted the rash on the Veteran's chest and neck covered only 6 percent of his total body area. While there was some suggestion his skin disorder also at times may have involved his back, chest, and shoulders, there is no indication the rash covered more than 40 percent of his total body area. Unfortunately, the examiner did not comment on the percentage of exposed areas affected, but since the posterior neck was the only exposed area affected at that particular time, the disorder cannot be said to have involved more than 40 percent of exposed areas. The neck simply does not equate to this amount of required effect. Further, there is no indication the Veteran required constant or near-constant systemic therapy during any 12-month period. In short, then, there is no basis to assign a disability rating higher than 30 percent under the new criteria of DC 7806 for the entire period prior to February 8, 2007. And lastly, a 50 percent rating is not available under the revised criteria of DC 7800 since the area of involvement on his neck was not manifested by visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); nor did it have four or five characteristics of disfigurement. In conclusion, the Board finds that the Veteran's skin condition meets the criteria for an initial 30 percent rating for the entire period prior to February 8, 2007, but that the preponderance of the evidence is against an even greater rating during this initial period. And since, for the reasons and bases discussed, the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in his favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. III. Whether Extra-Schedular Ratings are Warranted for the Skin Disorder and Low Back Disability In exceptional cases, where schedular evaluations are found to be inadequate, the RO or Board may refer a claim to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). "The governing norm in these exceptional cases is 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 as to render impractical the application of the regular schedular standards." Id. The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional 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 under 38 C.F.R. § 3.321(b)(1). The Board's May 2010 decision denied the Veteran's claim of entitlement to an initial schedular rating higher than 20 percent for his low back disability, and the Court's February 2012 single-judge memorandum decision AFFIRMED that finding. So in this decision the Board need only address whether the Veteran is entitled to additional compensation for this disability on an extra-schedular basis under the alternative provisions of 38 C.F.R. § 3.321(b)(1). Also in that prior May 2010 decision, the Board granted a higher 30 percent initial rating for the Veteran's skin disorder for the initial period prior to February 8, 2007, though no greater rating, but denied a schedular rating higher than 60 percent since. In the Court's February 2012 single-judge memorandum decision it was noted that the Board had failed to adequately discuss how the Veteran's low back disability and skin disorder are reasonably contemplated by the Rating Schedule, in other words, why extra-schedular ratings are not warranted for these disabilities. The Board is precluded from granting extra-schedular ratings in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996) Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Notably, in the prior May 2010 decision, the Board found that the Veteran's symptomatology and limitation in occupational functioning resulting from his service-connected skin disorder and low back disability were reasonably contemplated by the Rating Schedule under the first prong of the Thun analysis. Consequently, the second and third prongs did not need to be addressed. The Court found that further explanation was needed, however, as to how the schedular criteria reasonably contemplate the severity of these disabilities. In this regard, the Board sees the Veteran was provided various examinations addressing the severity of both his low back disability and skin disorder. The VA skin examinations noted that his skin condition was manifested by a melanotic rash with slightly hypopigmented dermatitis causing constant itching. There was no indication his skin disorder was repugnant, demonstrated visible tissue loss, deformity of one side of his face, or bilateral disfigurement, covered more than 40 percent of his entire body or exposed areas, or caused ulceration, extensive exfoliation or crusting to include any associated systemic or nervous manifestations. The examination reports did not note any symptomatology associated with his skin condition that was not addressed by the applicable schedular rating criteria. The severity of his low back disability was also addressed in several VA examination reports and by other evidence, including in particular six VA examination reports as well as several VA outpatient treatment records, all of which included range-of-motion testing of his lumbar spine. These records essentially show motion in every direction, with flexion at least greater than 30 degrees. In addition, none of these records makes any reference to a severe lumbar strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, some of the foregoing with abnormal mobility on forced motion, or evidence of ankylosis. In addition, the examinations noted that he reported pain on motion during most of his examinations, but the schedular rating criteria adequately addressed his complaints of consequent functional loss due to pain, weakness, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995). Finally, the examinations indicated he ambulated with a normal gait and had full strength of 5/5 in both lower extremities. The examination reports did not note any additional symptomatology that was not covered by the schedular rating criteria. Going one step further, to the second prong of the Thun analysis, there is no evidence that either disability causes marked interference with employment, meaning above and beyond that contemplated by the assigned rating, or requires frequent periods of hospitalization, or otherwise renders impractical application of the regular Rating Schedule standards. The record shows the Veteran was awarded SSA benefits in a July 2007 decision. In that decision, SSA concluded he had been disabled from substantially gainful employment since January 2002 on account of disabilities involving degenerative disc disease (which may involve his nonservice-connected cervical spine), arthritis, carpal tunnel syndrome, and posttraumatic stress disorder, with no mention of his skin disorder. But that determination is not tantamount to concluding that the degenerative joint disease, i.e., arthritis, affecting his lumbar spine (low back disability) independently causes the marked interference with employment required for an extra-schedular rating since there apparently also are many other factors impacting his ability to work. During an October 2009 VA examination the examiner was asked to address whether either the Veteran's service-connected skin condition or low back condition caused functional limitations. The examiner opined that the Veteran's skin condition did not impact his ability to maintain physical or sedentary employment. With regard to his low back disability, it was noted it would prevent him from maintaining any type of physically active employment such as repetitive forward bending or heavy lifting. Additionally, he could not stand or walk for extended periods of time or carry any heavy loads. However, the examiner also concluded this would not impact the Veteran's ability to do sedentary work as long as the situation allowed him intermittent breaks to stretch his back. According to 38 C.F.R. § 4.1, 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. So the Board is not disputing that the Veteran's service-connected disabilities interfere with his ability to work. But this alone is not tantamount to concluding there is marked interference with his employment, meaning above and beyond that contemplated by the assigned ratings. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated that the disability rating itself is recognition that industrial capabilities are impaired. Moreover, the SSA's findings, while relevant and probative evidence to be considered, is not altogether dispositive of the Veteran's claims with VA, including specifically in terms of whether he is entitled to extra-schedular consideration. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). Also, the evaluation and treatment the Veteran has received for his skin disorder and low back disability has been primarily, if not entirely, on an outpatient basis, not as an inpatient, certainly not frequent inpatient. In short, the evidence does not support the proposition that these service-connected disabilities present such an exceptional or unusual disability pictures as to render impractical the application of the regular schedular standards and warrant the assignment of extra-schedular ratings under 38 C.F.R. § 3.321(b)(1) (2012). Thus, this referral is not justified. ORDER A disability rating greater than 30 percent for the skin disorder prior to February 8, 2007 is denied, and ever since the Veteran has had the highest possible schedular rating of 60 percent for this disorder under the applicable DC. Extra-schedular ratings under 38 C.F.R. § 3.321(b)(1) are not shown to be warranted for this skin disorder and the low back disability. REMAND Additional development is necessary before readjudicating the remaining claims of entitlement to service connection for right hand/arm carpal tunnel syndrome and a left arm condition. In the February 2012 Memorandum Decision, the Court indicated the Board had failed to provide adequate reasons and bases for denying the Veteran's claim for right hand/arm carpal tunnel syndrome. Specifically the Court noted that the Board had failed to adequately explain why his testimony with regards to his right arm was incredible. The Court also found that the Board should have remanded the claim for a left arm condition so that it could be considered following adjudication of an additional (and underlying) claim of entitlement to service connection for a cervical spine disorder, especially given the fact that the evidence in the file indicated the Veteran's left arm condition was associated with his cervical spine disorder. The Board had referred the underlying claim for service connection for the cervical spine disorder, to have the RO/AMC initially consider this claim, so it was also then incumbent on the Board to remand, rather than immediately decide, the derivative claim for the left arm condition inasmuch as this claim was predicated on the claim for a cervical spine disorder. This is another way of saying the two claims were "inextricably intertwined." See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (indicating claims are "inextricably intertwined" when they are so closely tied together that a final decision concerning one or more of the claims cannot be rendered until a decision on another. These types of claims should be considered concurrently to avoid piecemeal adjudication of claims with common parameters). See also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) and Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). The Veteran and his attorney since have explained in the December 2012 brief that both the right arm/hand carpal tunnel syndrome and left arm disability are potentially the result of the cervical spine disability and, as such, the claim of entitlement to service connection for the cervical spine disability must be decided before these derivative claims for the left and right arm disabilities. The Veteran first reported neurological problems in his right upper extremity in 2006, which initially were attributed to the degenerative disc disease of his cervical spine (which, as mentioned, has yet to be determined service connected, although there is a pending claim to try and establish this entitlement). Further testing in February 2007 revealed that he also had carpal tunnel syndrome of his right hand. Thus, there were at least two possible sources of the neurological impairment affecting his right hand and arm. In contrast, evidence of record establishes that his neurological complaints referable to his left arm are entirely radicular, so a manifestation of the degenerative disc disease of his cervical spine. A December 2006 report noted that all of his neck and upper extremity pain is secondary to his cervical disc disease. The underlying claim to establish his entitlement to service connection for this cervical disc disease therefore must be resolved before determining whether service connection is additionally warranted for this derivative impairment involving his left and right upper extremities. Holland v. Brown, 6 Vet. App. 443, 446 (1994); and Hoyer v. Derwinski, 1 Vet. App. 208 (1991). The Board also finds that the Veteran should be provided a VA examination regarding these derivative claims for his right and left arm disabilities for further medical comment regarding their relationship with his cervical disc disease. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that in service-connection claims, VA must provide a VA medical examination for a medical nexus opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). When determining whether a VA examination and medical nexus opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). There is this evidence in this instance. Accordingly, the Board is also remanding these claims to provide the Veteran the requisite VA compensation examination for the necessary medical nexus opinions. Finally, the most recent VA treatment records in the claims file are dated in October 2011, so from nearly 11/2 years ago. Therefore, on remand, records of all more recent evaluation and treatment should be obtained and considered. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. §§ 3.159(c)(2). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); and Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA has constructive, if not actual, notice of these additional records because they are generated and maintained within VA's healthcare system and, therefore, deemed to be in VA's possession, even if not physically in the file). Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Ask the Veteran whether he has received any further evaluation or treatment for his left and right arm disabilities since October 2011, including, but not limited to, at the VA Medical Center (VAMC) in Augusta, Georgia. If he has, obtain these additional records and associate them with the claims file for consideration in this appeal. If the records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are, such as those at the Augusta VAMC. So make as many requests for the identified records as are necessary to comply with this VA regulation, depending on who has custody of them. Also appropriately notify the Veteran if unable to obtain identified records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule a VA compensation examination to first identify all current left and right arm/hand disorders. Medical opinion is then needed concerning the likelihood (very likely, as likely as not, or unlikely) these disorders are related or attributable to the Veteran's military service, including secondarily by way of his cervical spine disorder, meaning caused OR aggravated by this cervical spine disorder (cervical disc disease). The examiner therefore should remain mindful that the Veteran has a pending claim of entitlement to service connection for this cervical spine disorder (cervical disc disease), so if this underling claim is eventually granted, this also would provide the pathway for service connecting all consequent left and right arm/hand disability that was caused or is being aggravated by the cervical spine disorder. 38 C.F.R. § 3.310(a), (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The examiner must discuss the rationale for his/her responses, if necessary citing to specific evidence in the file. If an opinion cannot be expressed without resorting to mere speculation, discuss why such is the case. In other words, the examiner merely saying he/she cannot comment will not suffice. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Then first adjudicate a previously referred claim of entitlement to service connection for a cervical spine disorder, including degenerative disc disease (DDD). Only after adjudicating this underlying claim should there be readjudication of these derivative claims of entitlement to service connection for right and left arm/hand disorders since these claims are predicated on the claim for a cervical spine disorder. If these derivative claims for right and left arm/hand disorders remain denied, send the Veteran and his attorney a supplemental statement of the case (SSOC) concerning these derivative claims and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. Also, if denied, provide the Veteran notice of the decision concerning his underlying claim for a cervical spine disorder and give him opportunity to perfect an appeal of this claim, as well. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs