Citation Nr: 1310779 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 09-13 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for service-connected residuals of fracture of the thoracic spine. 2. Entitlement to an evaluation in excess of 10 percent for service-connected left lower extremity radiculopathy, associated with the service-connected residuals of fracture of the thoracic spine. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1979 to April 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. During the course of the appeal, in an October 2012 rating decision, the RO granted a 10 percent disability rating for the Veteran's service-connected thoracic spine disability, effective January 25, 2008, when the Veteran filed his increased rating claim. Additionally, in May 2012, the RO granted a separate 10 percent rating for associated radiculopathy, from April 10, 2012 forward. Notably, regulations direct that disability ratings involving the spine require consideration of both orthopedic and neurologic manifestations. As such, the issue of the propriety of the rating assigned for the associated neurologic disability is also before the Board, and the issue has been appropriately added above. Furthermore, because the subsequent rating decisions awarded higher ratings for the service-connected back disability, but less than the maximum available benefit, the increases granted do not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). In addition, as will be discussed fully below, the Veteran has alleged unemployability due to his service-connected back disability. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran asserts that he is unemployable due to the disability currently on appeal, the issue of a TDIU is before the Board and has been added to the issues on appeal. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to 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. The evidence shows that the Veteran's service-connected thoracic spine disability is manifested by pain and limitation of motion. The evidence does not show forward flexion of the thoracolumbar spine of 60 degrees or less, combined range of motion of the thoracolumbar spine of 120 degrees or less, 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. 2. The Veteran's associated radiculopathy of the left lower extremity was not objectively found until VA examination in April 2012, and the evidence demonstrates that it is mild, causing intermittent pain only. 3. The evidence does not show that the Veteran experiences incapacitating episodes requiring bed rest prescribed by a physician and treated by a physician due to his thoracic spine disability. 4. The evidence of record does not show that the Veteran's service-connected thoracic spine disability is so exceptional or unusual that referral for extraschedular consideration by a designated authority is required. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for the Veteran's service-connected thoracic spine disability are not met at any time during the appellate period. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235, 5243 (2012). 2. The criteria for a disability rating in excess of 10 percent for the Veteran's service-connected left lower extremity radiculopathy are not met at any time during the appellate period. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 3. Application of the extraschedular rating provisions is not warranted for the Veteran's service-connected thoracic spine disability. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to an increased disability rating for his service-connected thoracic spine disability. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Duty to Notify VA must notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by a letter mailed in March 2008, prior to the initial adjudication of his claim. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes the statements from the Veteran, service treatment records, as well as VA treatment records. The Veteran was afforded VA examinations in June 2009 and April 2012. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports contain sufficient information to rate the Veteran's thoracic spine disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board observes that although the June 2009 VA examiner indicated that the Veteran's claims folder was available and reviewed, the April 2012 VA examiner did not indicate such. However, such did not have an adverse effect on the adequacy of the examination. Notably, as previously indicated, the examiner fully considered the Veteran's complaints, to include his complaints of functional impairment and pain with respect to his thoracic spine disability. A physical examination was then performed that addressed all the relevant rating criteria. The Board also notes that the Veteran stated at the April 2012 VA examination that since the June 2009 VA examination he had been treated "conservatively" as an outpatient for his thoracic spine disability. Although the record only contains treatment records dated through April 2009 for the Veteran's thoracic spine disability, the Board finds that remand for any subsequent treatment records is not necessary. Pertinently, the Veteran stated that his outpatient treatment did not include physical therapy or chiropractic manipulation of his spine. Furthermore, he denied any invasive treatment or hospitalization. Moreover, as discussed above, the April 2012 VA examination was based on a thorough examination of the Veteran and consideration of his complaints associated with his thoracic spine disability. As such, the record contains sufficient information to evaluate the Veteran's claim under the appropriate disability rating criteria. Additionally, the Veteran has indicated that he received treatment from January 1982 to January 2008 at the VA Medical Center in Dallas, Texas for his thoracic spine disability. In July 2009, the RO attempted to locate these records. However, a response from the VA Federal Records Center (FRC) dated August 2009 only included treatment records dated in 1988 with a note that these were the only records which could be located. A memorandum from the RO dated September 2009 notes that only records from February to May 1988 are available. The RO notified the Veteran of the unavailability of the remainder of records in a letter dated September 2009. Accordingly, the Board finds that remand for the remainder of these VA treatment records is not necessary as the RO made a sufficient attempt to locate these records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. In his April 2009 substantive appeal [VA Form 9], the Veteran declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision. Higher evaluation for thoracic spine disability Pertinent legal criteria Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). 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 (2012). A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. § 4.1 (2012); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). However, where entitlement to compensation has already been established and 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, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40 (2012). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. §§ 4.40, 4.45 (2012); see also DeLuca v. Brown, 8 Vet.App. 202 (1995). The Veteran's service-connected thoracic spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5235 [vertebral fracture or dislocation], pursuant to the General Rating Formula for Diseases and Injuries of the Spine. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The evidence of record indicates that the Veteran has been diagnosed with T10 vertebral compression fracture, old, mild, as well as lumbosacral degenerative disc disease and intervertebral disc syndrome. The Board will consider the Veteran's disability under both the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome, and determine which results in the higher evaluation. See 38 C.F.R. § 4.71a (2012). The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. 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 when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted 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 is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted 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. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes, the following ratings will apply. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Note (1): For purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and prescribed by a physician and treatment by a physician. General Rating Formula for Diseases and Injuries of the Spine The Veteran's thoracic spine disability is currently evaluated 10 percent disabling. To warrant a higher disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran must show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine of 120 degrees or less; or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A VA treatment record dated January 2008 documents the Veteran's complaints of upper back pain and use of NSAIDs and muscle relaxants for treatment. A November 2008 VA evaluation noted mild lumbosacral tenderness and that the Veteran demonstrated normal gait and station and was able to walk on his heels and toes. Mildly decreased range of motion was also noted. The Veteran was afforded a VA examination in June 2009. He complained of pain in his back when standing for long periods of time and at night. He did not report flare-ups and did not use assistive devices or a brace. He did not identify any bowel or bladder impairment. Upon examination, the VA examiner reported a normal gait. He also reported that the Veteran's tenderness was in his thoracic spine at about the T10 level with right thoracic paraspinous muscle tenderness without spasm. Range of motion testing revealed flexion to 90 degrees without pain, extension to 10 degrees with pain in the right middle back, right and left lateral rotation to 30 degrees without pain, right lateral flexion to 20 degrees without pain, and left lateral flexion to 25 degrees with a cramping sensation in the right thoracic spine paraspinous muscles. This results in a combined range of motion of 205 degrees. There were no additional limitations following repetitive use other than increased pain without further loss of motion. There were no flare-ups or effect of incoordination, fatigue, weakness, or lack of endurance on spine function. An X-ray report of the Veteran's thoracic spine revealed an impression of an old compression fracture of T-10 vertebra; degenerative changes at T9-T10, T-10-T11, and T11-T12 levels. The other vertebrae appeared unremarkable. The VA examiner diagnosed the Veteran with myofascial thoracolumbar syndrome secondary to a prior T10 compression fracture with degenerative changes from T9 through T12. The Veteran was provided an additional VA examination in April 2012. He complained of daily mild to severe mechanical thoracolumbar pain. He did not report flare-ups. He did not identify any bowel or bladder impairment. Upon physical examination, the VA examiner reported range of motion testing which revealed flexion up to 80 degrees with pain at 80 degrees, extension to 30 degrees with pain at 30 degrees, right lateral flexion to 30 degrees with pain at 30 degrees, left lateral flexion to 20 degrees with pain at 20 degrees, and right and left lateral rotation to 30 degrees with pain at 30 degrees. This results in a combined range of motion of 220 degrees. The examiner noted that the Veteran was able to perform repetitive-use testing with three repetitions with no additional limitation in range of motion of the thoracolumbar spine. However, the examiner noted that the Veteran had less movement than normal and pain on movement after repetitive use. Further, he reported that the Veteran had tenderness of the lower thoracic and lumbar spinous processes. The Veteran did not evidence guarding or muscle spasm of the thoracolumbar spine or muscle atrophy. An X-ray report of the Veteran's thoracic spine revealed an old compression of the body of T10, small marginal hypertrophic spurs of lower thoracic vertebral bodies unchanged since the previous examination. Other structures were normal in appearance. An X-ray report of the lumbosacral spine revealed early degenerative changes of the lumbosacral joint with narrowing of the joint space and an increased lumbosacral angle. The examiner diagnosed the Veteran with T10 vertebral compression fracture, old, mild, as well as lumbosacral degenerative disc disease. As discussed above, to warrant a 20 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran must show forward flexion of the thoracolumbar spine between 30 degrees and 60 degrees; the combined range of motion of the thoracolumbar spine of 120 degrees or less; or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. However, review of the evidence of record does not reveal symptomatology consistent with a 20 percent disability evaluation at any time during the course of the appeal. Specifically, range of motion testing conducted during the June 2009 and April 2012 VA examinations (the only range of motion testing of record which were measured) revealed forward flexion between 80 and 90 degrees, and combined range of motion between 205 and 220 degrees. These measurements are well beyond the forward flexion of not greater than 60 degrees or combined range of motion of 120 degrees or less, as contemplated by the higher rating. Additionally, the evidence of record does not indicate that the Veteran has exhibited muscle spasms or guarding severe enough to result in abnormal gait or abnormal spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Crucially, the VA examinations and x-ray reports show no evidence of abnormal gait or of abnormal spinal contour. The Board has reviewed the Veteran's statements relative to his symptomatology. They do not contradict these findings. In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. § 4.40 and 4.45 (2012). See DeLuca, supra. The Board recognizes the Veteran's complaints of functional loss as a result of his thoracic spine disability, notably his difficulty with standing for long periods of time and sleeping. See, e.g., the June 2009 VA examination report. However, the Board places greater probative value on the objective clinical findings which do not support the Veteran's contentions regarding the severity of his disability. In this regard, the competent medical evidence of record does not indicate significant functional loss attributed to the Veteran's back complaints to warrant an increased disability rating. Specifically, during the most recent VA examination in April 2012, the Veteran was able to maintain almost full flexion to 80 degrees, with pain at 80 degrees, out of a normal 90 degrees. Extension, rotation, and right lateral flexion were all normal, at 30 degrees even considering pain. Left lateral flexion was minimally limited to 20 degrees, out of a normal 30 degrees. The examiner noted that the Veteran was able to perform repetitive-use testing with three repetitions with no additional limitation in range of motion of the thoracolumbar spine. Similarly, the June 2009 VA examiner reported normal flexion and rotation, without pain. Extension and bilateral lateral flexion were minimally limited. Although increased pain was noted with additional limitations following repetitive use, there was no further loss of motion at that time. Based on this record, the Board is unable to identify any clinical findings that would warrant an increased evaluation for the Veteran's thoracic spine disability under 38 C.F.R. § 4.40 and 4.45. The current 10 percent rating adequately compensates the Veteran for any functional impairment attributable to the orthopedic component of his service-connected thoracic spine disability. See 38 C.F.R. §§ 4.41, 4.10 (2012). Referable to any neurological component of the Veteran's service-connected disability, the Board notes that under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2012); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Specific to spinal disabilities, Note (1) under the General Rating Formula for Diseases and Injuries of the Spine directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See also Bierman v. Brown, 6 Vet. App. 125 (1994) [holding that under former Diagnostic Code 5293, a separate rating for neurological disability may be appropriate when its manifestations are distinct from the musculoskeletal disorder]. The Veteran is currently in receipt of a separate 10 percent disability rating for radiculopathy of the left lower extremity as secondary to the thoracic spine disability, which was granted effective April 10, 2012. The Board will first consider whether this additional 10 percent rating is warranted from the date of the Veteran's claim for an increase. The record is negative for objective neurological findings prior to April 10, 2012. Specifically, the Veteran noted in outpatient clinical records dated in January 2008 and November 2008 that he had back pain, that was specifically non-radiating. Furthermore, the January and November 2008 VA treatment records document the absence of paresthesias, numbness, seizures, or weakness in the Veteran's lower extremities. The Veteran complained of radiating pain in his June 2009 VA examination; however, objective neurological testing at that time was negative. He had normal reflexes, strength, and sensation. On examination in April 2012, however, the Veteran manifested objective signs of mild left lower extremity radiculopathy, involving the sciatic nerve, which the examiner found directly related to the service-connected back disability. Notably, with regard to the right lower extremity, the April 2012 VA examiner reported normal muscle strength testing, no muscle atrophy, normal sensory examination, negative straight leg testing, and no intermittent pain in the right lower extremity. Therefore, there was no objective neurological finding with respect to the right side. As a result of this examination, the separate rating for the left side only was granted. As the evidence of record prior to the April 2012 examination did not demonstrate an objective neurological component to the Veteran's service-connected back disability, a separate neurological rating prior to that date is not warranted. Furthermore, as the only neurological impairment that has been found is in the left lower extremity, a separate rating for the right lower extremity is not warranted. The Board will now consider the propriety of the 10 percent rating assigned for the neurological component. For the reasons below, the Board finds that the 10 percent adequately compensates for the neurological deficit. In particular, criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8520, outline the degrees of disability compensation available for impairment of the sciatic nerve. A maximum schedular rating of 80 percent is awarded for complete paralysis of the foot. A 60 percent rating is awarded for severe incomplete paralysis with marked muscular atrophy; a 40 percent rating is awarded for moderately severe incomplete paralysis; a 20 percent rating is awarded for moderate incomplete paralysis; and a 10 percent rating is awarded for mild incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). The term "incomplete paralysis" with peripheral nerve injuries such as this indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Pertinently, on the April 2012 VA exam, the Veteran reported only mild intermittent pain in the left lower extremity, without paresthesias and/or dysesthesias, and without numbness in the lower extremity. Objectively, the Veteran's muscle strength was noted as normal, and there was no demonstrated atrophy. Sensory examination was normal. His knee reflexes were normal, though his ankle reflexes were absent. Straight leg testing was positive on the left, suggesting radiculopathy. No other signs of neurological impairment were found on examination. Based this record, the Board finds that a rating in excess of 10 percent is not warranted for neurological impairment of the Veteran's left lower extremity from April 10, 2012 forward. The Veteran appears to have only intermittent pain into his left leg, without any loss of strength or reflex. There are no additional sensory symptoms (e.g., numbness or tingling) associated with the pain. The Board finds that this is no more than sensory involvement. Given the intermittency of the pain, the Board finds that the separate 10 percent rating for the neurological component of his disability is warranted, but no higher. In sum, the Board finds that the currently assigned 10 percent rating for the entire appeal period for the back disability is warranted, and no higher. The Board further finds that the staged rating, adding a separate 10 percent rating from April 2012 forward, for the associated radiculopathy is warranted, and no higher. These ratings are set in accordance with the General Rating Formula. Intervertebral Disc Syndrome Based on Incapacitating Episodes The Veteran carries a diagnosis of intervertebral disc syndrome, or IDS. The rating schedule directs that IDS be rated 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. Currently, as discussed above, a 10 percent rating for the back disability, and a 10 percent rating for the associated radiculopathy, are in effect. These combine to create a 20 percent rating for the Veteran's overall back disability. 38 C.F.R. § 4.25 (2012). The IDS criteria rate disability based on the presence and frequency of incapacitating episodes. Such an episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Pursuant to the criteria, a 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. The Veteran has contended that his thoracic spine disability causes pain and interference in daily activities. However, the medical evidence does not indicate, and the Veteran does not contend, that he has been prescribed bed rest by a physician based on incapacitating episodes. Furthermore, he has denied requiring anything but conservative treatment by a physician for his disability. Therefore, the Veteran's service-connected thoracic spine disability does not warrant a compensable rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes at any time during the course of this appeal. Accordingly, the Board finds that the method of rating the Veteran's spine disability that results in the higher evaluation is that of evaluating it under the General Rating Formula for Diseases and Injuries of the Spine, rather than under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Extraschedular consideration In evaluating the severity of his service-connected disability, the Board also has considered whether the Veteran is entitled to a greater level of compensation for the disability at issue on an extra-schedular basis. Ordinarily, the VA 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) (2012). 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 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 evaluation for the Veteran's service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability, with the established criteria shows that the rating criteria reasonably describe the level and symptomatology thereof. The criteria specifically provide for evaluation of the disability based upon impairment of the thoracic spine, to include neurological symptoms, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability. See 38 C.F.R. § 4.1. Accordingly, the Board does not find that an extraschedular rating is warranted. ORDER Entitlement to an evaluation in excess of 10 percent for service-connected residuals of fracture of the thoracic spine is denied. Entitlement to an evaluation in excess of 10 percent for service-connected left lower extremity, beginning April 10, 2012, associated with residuals of fracture of the thoracic spine is denied. (CONTINUED ON NEXT PAGE) REMAND The Veteran reported at the April 2012 VA examination that he last worked in October 2010 as a sign installer. Further, he reported that he had to leave this position as the duties required aggravated his chronic mechanical thoracolumbar pain. He also stated that he has intolerable thoracolumbar back pain with any strenuous physical activities. The Board therefore finds that the issue of a total disability rating for compensation based on individual unemployability (TDIU) has arguably been raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). The U.S. Court of Appeals for Veterans Claims has held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. Accordingly, the matter should be remanded to the RO for development and adjudication of whether referral of the Veteran's claim for consideration of TDIU on an extraschedular basis is warranted, in accordance with the holding in Rice. Accordingly, the case is REMANDED for the following action: 1. Issue a notice letter that satisfies all VCAA notice obligations with regard to the issue of entitlement to TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002); 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and any other applicable legal precedent. This notice letter should specifically apprise the Veteran of the evidence and information necessary to substantiate his claim for TDIU. Also, inform the Veteran of the division of responsibility between him and VA in producing or obtaining that evidence or information. The letter should include an explanation as to the information or evidence needed to establish a disability rating and an effective date in the event of award of the benefit sought, as outlined by the Court in Dingess/Hartman. Additionally provide the Veteran with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. The Veteran should be scheduled for an appropriate VA examination to determine whether his service-connected disabilities alone prevent him from securing and following substantially gainful occupation. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. Thereafter, consideration of whether referral for TDIU on an extraschedular basis is warranted must be adjudicated. Notice of the determination, and his appellate rights, should be provided to the Veteran and his representative. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs