Citation Nr: 1313181 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 06-23 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for low back strain with degenerative changes, prior to March 20, 2012. 2. Entitlement to a disability rating in excess of 40 percent for low back strain with degenerative changes, since March 20, 2012. 3. Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities an extraschedular basis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1976 to August 1977. The increased rating appeal comes to the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In September 2006, a hearing before a Decision Review Officer (DRO) was held at the RO. A transcript of that hearing is of record. In July 2009, the Board denied entitlement to a rating in excess of 20 percent for a low back strain with degenerative changes. The Veteran appealed. In May 2010, the United States Court of Appeals for Veterans Claims (Court) issued an order granting a Joint Motion for Remand. In May 2011, the Board remanded the matters to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The claims were then returned to the Board. In a February 2012 decision, the Board denied entitlement to a disability rating in excess of 20 percent low back strain with degenerative changes, and remanded the claim of entitlement to individual unemployability back to the AMC for further development. The Veteran appealed the February 2012 decision to the Court, and in November 2012, the Court issued an order granting a new joint motion for remand. While the case was on appeal to the Court, the AMC in a July 2012 rating decision assigned a 40 percent evaluation for the low back strain with degenerative changes effective March 20, 2012. In light of the actions of the Court and the AMC, the issue of entitlement to an increased rating for a low back disorder now involves a staged rating. Since a July 2012 supplemental statement of the case the Veteran has submitted additional evidence. He has waived his right to have this evidence first considered by the RO. 38 C.F.R. §§ 20.800, 20.1304 (2012). The Veteran's Virtual VA paperless claims file has also been reviewed in preparing this decision and remand. The issue of entitlement to individual unemployability on an extraschedular basis, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. Prior to March 20, 2012, the Veteran was able to flex his spine to more than 30 degrees, and there was no evidence of ankylosis of the lumbar spine, even with consideration of the pain and flare-ups in his spine. 2. Since March 20, 2012, the Veteran's service-connected low back disability has not been manifested by unfavorable ankylosis of the lumbar spine, even with consideration of the pain and flare-ups in his spine. CONCLUSIONS OF LAW 1. Prior to March 20, 2012, the criteria for entitlement to a rating in excess of 20 percent for a low back strain with degenerative changes were not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5003, 5237, 5242, 5243 (2012). 2. Since March 20, 2012, the criteria for entitlement to a rating in excess of 40 percent for low back strain with degenerative changes, have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5003, 5237, 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this 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 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). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in August 2005 and June 2011 of the information and evidence needed to substantiate and complete a claim, notice of what evidence is to be provided by the claimant, notice of what part VA will attempt to obtain, and notice of how disability ratings and effective dates are assigned. The Board finds the letters fully time- and content-compliant. 38 C.F.R. § 3.159(b). The claim was readjudicated in a July 2012 supplemental statement of the case. VA has fulfilled its duty to assist the appellant. VA has secured the service treatment records, pertinent treatment records, Social Security records and afforded the appellant VA examinations of his low back disorder. The examination reports contain all findings necessary to properly evaluate his disability. 38 C.F.R. § 4.2 (2012). Hence, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's appeal. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Increased Rating Legal Criteria In July 2005, the Veteran submitted a claim of entitlement to an increased rating for his service-connected low back disability. This disorder has been assigned a 20 percent disability rating, prior to March 20, 2012, and a 40 percent rating, since March 20, 2012, under 38 C.F.R. § 4.71a, Diagnostic Codes 5237 and 5242. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When there is a question as to which of two evaluations should 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. 38 C.F.R. § 4.7. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pursuant to the general rating formula for diseases and injuries of the spine, a rating of 20 percent is assigned for forward flexion of the thoracolumbar spine that is greater than 30 degrees but not greater than 60 degrees or a combined range of motion of the thoracolumbar spine that is 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. An evaluation of 40 percent is assigned when forward thoracolumbar flexion is to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned where there is unfavorable ankylosis of the entire thoracolumbar spine. These ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. There are alternative criteria for rating an intervertebral disc syndrome based upon incapacitating episodes. Under the alternative criteria, a 20 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least two, but less than four, weeks during the previous 12 month period. A 40 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least four, but less than six, weeks during the previous 12 month period. A 60 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the previous 12 month period. Id. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." Id. at Note 1. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, the Court has 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert, 1 Vet. App. at 49; 38 C.F.R. §§ 3.102, 4.3. A. Entitlement to an evaluation in excess of 20 percent prior to March 20, 2012 The Veteran's service-connected low back disability is currently assigned a 20 percent rating, prior to March 20, 2012. The Veteran asserts that a higher disability rating is warranted. In applying the facts of the case to the legal criteria, the Board finds that entitlement to an increased rating for the appellant's lumbosacral disability is not warranted at any time prior to March 20, 2012. The clinical records and VA examinations do not document that the service-connected back disability was productive of limitation of flexion of the spine to 30 degrees for less. Indeed, the range of thoracolumbar flexion was consistently greater than 30 degrees, and as noted above, it must always be remembered that pain is specifically contemplated when looking at what rating is in order. No medical record suggests either ankylosis of the spine or symptomatology approximating the presence of ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242. At an August 2005 VA examination, the Veteran reported intermittent low back pain associated with motion, such as bending and twisting. He reported working as a mechanic in an auto parts salvage yard. He reported experiencing back pain when he performed his job and had to bend or twist into an awkward position. He was able to manage the pain with anti-inflammatory medication. He did not describe any difficulty with walking. He had an unlimited ability to walk. Physical examination using a standard goniometer revealed forward flexion to 80 degrees with increased pain at 80 degrees. Lower extremity muscle strength was 5/5. Knee and ankle reflexes were 2+. The diagnosis was chronic activity related back pain with history of discectomy L5-S1. Restricted motion without evidence of neurological deficit save for diminished sensation in the left lateral calf from back surgery was also diagnosed. The examiner opined that the current diagnosis was consistent with a chronic lumbar strain and mechanical back pain with history of discectomy L5-S1. In a December 2005 VA clinical record, the Veteran reported that he had recently fallen at work and injured his tailbone. He found it difficult to keep up at work due to back problems. At a September 2006 RO hearing, the Veteran testified that he was unable to sit or stand for long periods of time. He alleged that his back would go out on him at times if he turned wrong. The appellant stated that he previously was able to take cars apart at a junk yard, but was no longer able to do that; and he alleged that he lost quite a bit of work due to his back problems. In March 2006, the Veteran sought treatment for neck pain, reporting that his low back pain was only a dull ache and tolerable. In August 2006, it was noted there was a decreased range of motion in the Veteran's back. The range of motion was not recorded. In September 2006, the Veteran reported he continued to experience chronic intermittent low back pain and got some relief from medication. He was working at a counter and standing most of the day. In January 2009, it was noted the Veteran was working in apartment maintenance and snow removal. He reported he had chronic back pain. In February 2009, the Veteran was seen by a VA psychiatrist for his psychiatric disorder. However, at the outpatient treatment visit, the Veteran described a current flare-up from his chronic back pain. He also stated that he was currently employed, refurbishing rental apartment units. No clinical findings or diagnosis pertaining to the back were provided. In March 2009, the Veteran sought treatment for lower back pain. Physical examination revealed limited spinal motion in left lateral flexion and pain with hyperextension. If performed slowly, the Veteran was able to reach his knees in forward flexion. The precise extent of any limitation of motion was not recorded. An April 2009 clinical record documented the Veteran's complaints of back pain since his 1976 disc surgery. He reported that he worked managing an apartment building, but offered that his job did not entail much heavy work. He stated that he had constant pain that was aggravated by motion. Tenderness was present in the entire lumbar spine with some muscle spasm. In November 2009, the Veteran reported a long history of back pain, which he had learned to live with. He used a TENS machine, back exercises, and hot tubs. There was an acute episode of increased pain the past few weeks. He had spasms to his back with standing or sitting too long and had problems sleeping. In December 2009, the Veteran presented at the emergency room with chronic back pain that was keeping him from sleeping. It was his typical pain with no changes other than right foot tingling. In January 2010, the Veteran reported chronic back pain, which was 10/10 (with 10 being the worst) when standing. There was intermittent sharp pain down the right leg. The right toes were constantly tingling. Physical examination revealed very limited forward flexion and slightly better hyperflexion. At a February 2010 Social Security examination for disability benefits, the Veteran was diagnosed with lumbar spine pain, following a physical examination of the Veteran. The physician noted pain and spasms in the Veteran's lumbar spine. The Veteran had limited range of motion of the left lateral flexion of the lumbar spine. He had pain with hyperextension and could forward flex slowly to his knees. The Veteran walked slightly hunched over. No other pertinent information was provided. At a June 2011 VA examination, the Veteran denied urinary symptoms, fecal symptoms, numbness, paresthesias, leg and foot weakness, and unsteadiness. He did report decreased motion, stiffness and spasm, but denied incapacitating episodes of spine disease. The Veteran reported that he was limited to walking a quarter mile. Physical examination revealed that a normal appearing spine. There was no weakness or evidence of fatigue. No ankylosis was present. The range of motion for flexion was determined to be from 0 to 80 degrees. Objective studies showed pain on active and repetitive motion. The examiner was unable to quantify objective evidence of pain following repetitive motion, as the Veteran was unable to complete the test due to complaints of too much pain. The examiner noted that, while the appellant's range of motion was reduced, this should be considered normal for this particular Veteran as he had a morbidly obese abdomen and was swayback due to obesity. The Board finds the VA examinations and treatment records document limitations in the range of the appellant's spinal motion. Significantly, no physician and no other health care professional who has examined the Veteran's spine has ever found that forward thoracolumbar flexion was limited to 30 degrees or less prior to March 2012. Likewise no examination reveals the presence of any ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board finds that an increased rating is not warranted prior to March 2012, even after considering pain on use or flare-ups of pain. As noted above, the general rating criteria applies with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Simply put, the rating schedule for back disorders contemplates the presence of pain. Moreover, there is no evidence that any thoracolumbar weakness, incoordination or fatigue equates to a restriction thoracolumbar flexion to 30 degrees or less, or ankylosis of the spine. The vast preponderance of medical evidence of record dated prior to March 2012 does not document that the Veteran's spine was manifested by severely limited forward flexion upon repetitive motion or during flare-ups, or ankylosis following repetitive motion or during flare-ups. The treatment records document difficulty walking, trouble bending, stiffness, flare-ups, and muscle spasms; however, none of the treatment records document any functional loss or increased loss of motion upon repetitive use or during a flare-up in light of these symptoms, despite numerous examinations of the Veteran's spine. The Board finds it reasonable to conclude that, if the Veteran had experienced a restricted flexion to 30 degrees of less upon repetitive use or ankylosis of the spine, the clinical records would have recorded such an objective finding. Based on the above, the Board finds the preponderance of the probative evidence of record weighs against a finding that the Veteran experiences restriction in forward flexion to 30 degrees or less or ankylosis of the spine. Hence, prior to March 2012, the requirements for a higher rating, even when pain on use or during flare-ups is considered, are not shown. Hence, the claim is denied. 38 C.F.R. § 4.71a. Regarding entitlement to a higher rating under Diagnostic Code 5243, the preponderance of the evidence is against finding that the back disability is productive of any incapacitating episodes. While there are references in the clinical records to the presence of severe back pain, there are no references in the clinical records to the presence of periods of physician prescribed bed rest. As such, there were no incapacitating episodes as that term is defined by regulation. 38 C.F.R. § 4.71a. The Veteran denied incapacitating episodes at his June 2011 VA examination. Thus, an increased rating is not warranted for the lumbosacral spine disability based on intervertebral disc syndrome and incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Regarding potential neurological impairment, in February 2007, VA granted entitlement to a separate 10 percent rating for degenerative changes in the lumbar spine with numbness in the left lower extremity. That rating was not appealed, and the Board has no jurisdiction to address this matter. In sum, the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the service-connected low back disability prior to March 20, 2012. The claim is denied. 38 U.S.C.A. § 5107. B. Entitlement to a rating in excess of 40 percent since March 20, 2012 The Veteran's service-connected low back disability has been assigned a 40 percent rating, since March 20, 2012. The Veteran asserts that a higher disability rating is warranted. On March 20, 2012, the Veteran was afforded a VA spine examination. He reported daily flare-ups of back pain with activities such as walking, some bending, and twisting. The Veteran stated that intermittent discomfort at night disrupts his sleep, and that he had increased discomfort with weather changes. He described daily flare-ups depending on activity, and that flare ups tended to last two to three days. The Veteran attempted to avoid aggravating activities and rested by sitting down when his pain became too uncomfortable. The Veteran took hydrocordone 1-2 times daily to alleviate his pain, and used a TENS unit 2-3 times a week. The Veteran also reported wearing a back support a couple days each week. At the March 2012 VA examination, lumbar motion was demonstrated as follows: forward flexion to 40 degrees, with painful motion beginning at 15 degrees; extension to 20 degrees, with painful motion beginning at 20 degrees; right lateral flexion to 10 degrees, with painful motion beginning at 10 degrees; left lateral flexion to 15 degrees, with painful motion beginning at 15 degrees; and, bilateral lateral rotation to 15 degrees, with painful motion beginning at 15 degrees on each side. Based on the March 2012 examination showing motion in multiple planes of movement the Veteran did not have ankylosis of the spine. Regarding forward flexion, the examiner noted that the Veteran was unable to flex thoracolumbar spine without using his hands on his legs as support, and he recovered in stages, walking his hands up his legs until he was erect. Following a physical examination of the Veteran and a review of his claims file, the VA examiner found that the Veteran was not able to perform repetitive-use testing with three repetitions because he reported being in extreme pain with the initial range of motion testing. Thus the appellant declined to participate in repetitive motion testing due to this pain. Thus, the examiner was unable to address whether the Veteran had additional limitation in the ranges of motion of the thoracolumbar spine following repetitive use testing. However, the examiner did find that the Veteran had functional loss and/or functional impairment of the thoracolumbar spine due to pain on movement and less movement than normal. The examiner determined that the Veteran could not lift, stand for prolonged periods, sit for prolonged periods, bend, or twist without significant pain. The treatment records dated since March 20, 2012, do not provide contrary evidence to that obtained at the VA examination. Without evidence of unfavorable ankylosis of the thoracolumbar spine at any time since March 12, 2012, the Veteran is not entitled to a 50 percent rating, even when considering pain and painful flare-ups. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Here, the Veteran has retained lumbar motion in all directions, albeit limited, even when considering his pain, functional loss, and flare-ups of the spine. By this very fact, the Veteran's lumbar spine is not ankylosed, and he is not entitled to a higher disability rating. C.F.R. § 4.71a, DC 5237. As above, the evidence preponderates against finding that the service-connected back disability is productive of any incapacitating episodes. While there are references in the clinical records to the presence of severe back pain, there are no references to the presence of incapacitating episodes. The Veteran denied this symptomatology at the March 2012 VA examination, and no health care provider is on record as prescribing bed rest to treat the Veteran's back. Hence, an increased rating is not warranted for this lumbosacral spine disability based on intervertebral disc syndrome and incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Veteran is competent to give evidence about what he observes or experiences. He is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno, 6 Vet. App. at 465. His belief that his disability is worse than the assigned rating, however, is outweighed by the competent and credible medical examination that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiner has the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran's lay statements. In sum, the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for the service-connected low back disability since March 20, 2012. The claim is denied. 38 U.S.C.A. § 5107. C. Extraschedular Consideration The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). However, the regulations also provide for exceptional cases involving compensation. Pursuant to § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if 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." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then a veteran's disability picture is contemplated by the rating schedule. The assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). In this case, the schedular criteria are adequate to rate the back disability under consideration. The Veteran has reported pain and stiffness which results in limitation of motion in the spine. Diagnostic Codes 5237 and 5242 specifically contemplate the presence of pain and limited motion. Thus, the rating criteria are more than adequate to describe the disability. Accordingly, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. Thun. ORDER Prior to March 20, 2012, entitlement to a disability rating in excess of 20 percent for low back strain with degenerative changes, is not warranted. Since March 20, 2012, entitlement to a disability rating in excess of 40 percent for low back strain with degenerative changes, is not warranted. REMAND A remand is required in order to afford the Veteran a videoconference hearing at the Hartford RO to address his claim of entitlement to individual unemployability only. In an August 2012 statement, the Veteran requested a Board videoconference hearing before a Veterans Law Judge on that claim only. As such, a remand is required. Accordingly, the case is REMANDED for the following actions: Schedule the Veteran for a videoconference hearing in Hartford, Connecticut, for testimony only on the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, on an extraschedular basis. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs