Citation Nr: 1313535 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-08 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a low back disability, to include entitlement to a total disability rating based on individual unemployability (TDIU). 2. Entitlement to a rating in excess of 10 percent for neurological pathology in the left lower extremity. 3. Entitlement to a rating in excess of 10 percent for neurological pathology in the right lower extremity. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from October 1980 to August 1983. This matter is on appeal from a September 2009, rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran's low back disability has been characterized by pain, lack of endurance and limitation of motion; forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, have not been shown. 2. The neurological symptoms in the Veteran's lower extremities have been characterized by radiating pain and some diminishment in reflexes; paralysis of the lower extremities to a "moderate" level has not been shown in either lower extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DCs) 5003, 5243 (2012). 2. The criteria for a disability rating in excess of 10 percent for neurological pathology in the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DCs 8520, 8521 (2012). 3. The criteria for a disability rating in excess of 10 percent for neurological pathology in the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DCs 8520, 8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in June 2009 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records, and also acquired the records that were submitted to the Social Security Administration (SSA). Further, the Veteran submitted private treatment records in support of his claim, in addition to statements regarding his symptoms. Additionally, VA examinations relevant to the issue on appeal were also obtained in July 2009, May 2011 and April 2012. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case is more than adequate, they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Next, the Veteran was also afforded a hearing before the undersigned Veterans Law Judge in March 2011. This hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the Veteran was specifically asked about the extent of his low back symptoms and how they affect his daily living. Finally, it is noted that this appeal was remanded by the Board in December 2011 in order obtain the Veteran's SSA records and to provide the Veteran with a new VA examination in order to assess the current extent of his low back disability. The Board is satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, as noted above, the RO acquired the Veteran's SSA records, and he underwent a new VA examination addressing his low back disorder in April 2012 which, as stated above, the Board finds adequate for evaluation purposes. Following these actions, the issue was readjudicated, and a supplemental statement of the case was sent to the Veteran in May 2012. Accordingly, the Board finds that the December 2011 Remand directives were substantially complied with to the extent that the claim is being adjudicated, and there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45 (2012). The Court of Appeals for Veterans Claims has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires the VA to regard as 'seriously disabled' any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the CAVC in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran is rated at 20 percent for his low back disorder under 38 C.F.R. § 4.71a, DC 5243 (2012) (addressing intervertebral disc syndrome). Ratings under this diagnostic code are assigned based on the General Rating Formula for Diseases of the Spine or based on incapacitating episodes, whichever results in the higher evaluation. Under these bases, a rating in excess of 20 percent is warranted when the evidence shows: * forward flexion of the thoracolumbar spine to 30 degrees or less; * favorable ankylosis of the entire thoracolumbar spine; or * intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. See Id (all 40 percent). Based on the evidence of record, the Board determines that a rating in excess of 20 percent is not warranted. As an initial matter, even though the Veteran submitted the claim on appeal in 2009, it is appropriate to consider the results from prior to the period on appeal order to better assess the extent of his low back disability at the time he submitted his claim. See Moore v. Shinseki, 555 F.3d 1369 (2009) (holding that records from other than a relevant period on appeal must nevertheless be considered, as 38 C.F.R. § 4.1 requires that "a veteran's disability must be evaluated in light of its whole recorded history"). Such prior evidence includes a VA examination in March 2007, which indicated that the Veteran had received three epidural steroid injections in the past, which led to "fair to moderate improvement." However, the relief was only short lasting. He complained of fatigue, stiffness, weakness and spasms and, while his pain was predominantly in his left parispinal musculature, he also reported pain over the spine itself. Upon examination, there was no evidence of spasm or atrophy, although tenderness and weakness were observed on the left side. There was no indication of kyphosis or lordosis, although some scoliosis was noted. While the Veteran exhibited 90 degrees of flexion, pain was present at 45 degrees. While there was pain upon repetitive use, this resulted in no additional loss in range of motion. In addition to this VA examination, the Veteran received outpatient treatment in April 2007, where he stated that his pain was a "10/10," and that it was most severe with increased activity. In June 2007, he complained that his pain had been recently exacerbated and he regularly takes Vicodin in order to control his pain. However, he has never displayed a range of motion of 30 degrees of less on any of these occasions, nor has ankylosis been shown. The evidence since the Veteran submitted the claim on appeal also does not indicate that a rating in excess of 20 percent is warranted. Specifically, at a VA examination in July 2009, he stated that he noted a "gradual development of pain" in the lumbar region that has become progressively worse. He also complained of muscle spasms in the lumbar region on the right side, which negatively impacts his ability to walk and sit, as well as flare-ups on a weekly basis, each of which lasted 1 to 2 days. During such flare-ups he stated he had to sit and rest intermittently. However, upon examination, no kyphosis, listing, lordosis or ankylosis was observed. There was also no indication of spasm, atrophy, guarding or pain with motion. He exhibited a range of motion that included 87 degrees of flexion, although this was limited by pain to 82 degrees. Moreover, while he experienced incapacitating episodes in the past, such episodes were in 2008 and 2009, and in each case lasted a week or less. There have been no incapacitating episodes in the past 12 months. At his most recent VA examination in April 2012, the Veteran stated that his left leg was shorter than his right leg, which caused his back pain. He also stated that he has been treated at a pain management clinic, and that he has chronic pain made more evident when he gets out of bed in the morning. However, he denied that his daily functioning is additionally limited by flare-ups. Upon examination, the Veteran exhibited 90 degrees or greater of forward flexion with no objective evidence of painful motion. Moreover, he was able to exhibit a forward flexion of 90 degrees or greater even after repetitive motion. Finally, the VA examiner determined that the Veteran did not have intervertebral disc syndrome. While the Veteran has also received outpatient treatment for his low back symptoms, the symptoms observed on these occasions do not differ significantly from the VA examinations. For example, in April 2009, a private physician noted pain that was caused by muscle strain, and instructed the Veteran to rest in bed for the next one or two days. However, there is no indication that he was had any other prescribed periods of bed rest. Moreover, while he stated in October 2010 that he has experienced low back pain doe the past few years, he did not indicate on either occasion that his flexion was significantly limited or that he has experienced any incapacitating episodes. The Board has also considered a functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, an increased evaluation for the Veteran's service-connected low back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the ratings already assigned. Specifically, the VA examiners provided information relating to the amount of limitation that is caused by pain and fatigue. Notably, at the most recent VA examination, the examiner explicitly stated that there was no additional range of motion loss due to fatigue, lack of endurance, or incoordination. Put another way, the effect of this symptomatology is contemplated in the currently assigned disability evaluation. Therefore, as forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months have not been shown, a rating in excess of 20 percent is not warranted on this basis. Next, the Board also notes that the Veteran is already in receipt of a 10 percent disability rating for neuropathy in each lower extremity under 38 C.F.R. § 4.124a, DC 8521 (2012), and has considered whether a increased rating is warranted based on his neurological symptoms. Under 38 C.F.R. § 4.71(a), any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, is also to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a) (2012). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2012). Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a (2012). The rating schedule does not define the terms "mild," "moderate," or "severe" as used in this diagnostic code. However, when the involvement is only a sensory deficit, the rating should be considered "mild," or at most, "moderate" in degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2012). The maximum rating to be assigned for neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, should be that for "moderate" incomplete paralysis. 38 C.F.R. § 4.124 (2012). In this case, DC 8521 addresses paralysis of the popliteal nerve. However, the Veteran's symptoms do not make clear whether DC 8521 or DC 8520 (which addresses paralysis of the sciatic nerve) is the most applicable diagnostic code. However, the Board need not resolve this question at this point, as the criteria are identical for both diagnostic codes when assigning low-severity ratings and, based on the Veteran's symptoms, it would be inappropriate to assign separate ratings. Under both DC 8520 and 8521, a rating in excess of 10 percent is warranted under when the evidence shows incomplete paralysis that is "moderate" in nature. In this case, a rating in excess of 10 percent is not warranted for either lower extremity, as paralysis that is "moderate" in nature has not been shown. For example, at his VA examination in March 2007, he stated that his pain radiates to his left buttock and down the left thigh, and some atrophy was observed in the left lower extremity. An examination of his lower extremities did reveal some diminishment in functioning, but not to a level that is "moderate" in severity. Specifically, motor functioning in the ankle, knees were normal, and the motor functioning in the left great does was only slightly limited (4/5). Additionally, his sensory functioning was only slightly diminished in the left lower extremity to pin prick and light touch. Sensory functioning was normal to vibration. His knee and ankle jerk reflexes were limited, but still substantially present. The Veteran's July 2009 VA examination also does not indicate "moderate" paralysis. On this occasion, he again denied a history of urinary or fecal incontinence, nor was there any erectile dysfunction. Moreover, the VA examiner did not observe any muscle atrophy in the lower extremities and his motor functioning was normal in the lower left extremity and only slightly diminished in his right lower extremity. The Board notes that this is opposite from the results in March 2007. Also, unlike the March 2007 VA examination, the Veteran's sensory functioning was substantially normal. While his detailed reflex examination indicated diminished reflexes in the knees and absent in the ankles, the Board does not conclude that this diminishment in reflexes, by itself, rises to the level of "moderate" paralysis. Outpatient evaluations also do not reflect "moderate" paralysis in the lower extremities. For example, at a VA outpatient evaluation in April 2007, he denied any bowel or bladder incontinence. In June 2007, the Veteran stated a history of radiating pain, but there was no radiating pain currently. At an October 2010 electrodiagnostic evaluation, he stated that he has difficulty walking around the grocery store, and he sometimes has to lean on his grocery cart. Upon examination, his motor functioning was normal in both lower extremities and his sensation was "grossly intact to light touch and pinprick." The electrodiagnostic study revealed findings that were consistent with right L4-L5 chronic radiculopathy. However, there was no indication of moderate paralysis. Significantly, the Veteran denied radicular symptoms in the left lower extremity. Moreover, at another neurological evaluation in May 2011, his motor functioning was again normal in the lower extremities (5/5 at all points tested). There was some diminished sensory functioning in the left lower extremity, and there were some diminished reflexes. However, there was no indication that there was paralysis to a "moderate" level. Finally, at his most recent VA examination in April 2012, a neurological evaluation again indicated normal muscle functioning in the lower extremities, and there was no atrophy observed. Reflex testing was normal in the right lower extremity and only slightly diminished in the left lower extremity. His sensation to light touch was normal in both lower extremities. Therefore, the Board concludes that ratings in excess of 10 percent for the neurological disorders in the Veteran's lower extremities are not warranted. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his low back disability is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his hearing loss according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran's low back disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board also finds that a referral for an extraschedular evaluation, which is a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). In this regard, the Court of Appeals for Veteran's Claims has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the symptoms related to his low back disability were applied to the applicable rating criteria, general counsel opinions, and case law. Although the diagnostic code in this case allows for higher ratings, the Board fully explained why the higher ratings were not warranted. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Moreover, although the Board has determined that a remand is necessary to properly evaluate the issue of entitlement to TDIU, entitlement an extraschedular rating is not affected by any evidence obtained in the course of this remand. In conclusion, the Board concludes that a rating in excess of 20 percent is warranted for the Veteran's low back disorder, and that a rating in excess of 10 percent is not warranted for the neurological symptoms in either of his lower extremities. Therefore, the benefit of the doubt rule is not applicable and the appeal is denied. ORDER A rating in excess of 20 percent for a low back disability is denied. A rating in excess of 10 percent for neurological pathology in the left lower extremity is denied. A rating in excess of 10 percent for neurological pathology in the right lower extremity. REMAND With regard to the Veteran's claim for TDIU, the Board determines that additional development is required before this claim may be adjudicated. In its August 2012 supplemental statement of the case (SSOC), the RO denied the Veteran's claim for TDIU partially on the basis of the negative opinion provided by the VA examiner who examined the Veteran in May 2011 and stated that the Veteran was able to perform sedentary and physical employment despite his service connected disabilities, which include his low back, neuropathy in the lower extremities and left knee disability. The Board remanded this claim to the RO in December 2011 in part to afford the Veteran a new VA examination and for an opinion as to whether his service-connected disabilities prevent him from securing gainful employment. An opinion was provided in April 2012. However, it does not appear that the RO considered this evidence in the August 2012 SSOC. Moreover, the Board notes that the April 2012 VA examination was performed by the same VA examiner who previously provided an opinion in May 2011. Thus the opinions are largely the same. It is implicit in the Board's remand that the May 2011 opinion was inadequate and, given that the April 2012 opinion is largely the same and from the same examiner, there has not been substantial compliance with the Board's instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Moreover, since the most recent SSOC addressing the issue of TDIU, the Veteran has submitted a statement from a private physician in November 2012, who concluded that the Veteran was unemployable due to his service-connected disabilities. In providing this opinion, the private examiner reflected that the Veteran not only works with pain in the back and knee, but that his use of Vicodin diminishes his ability to concentrate. The Veteran waived his right of initial review by the RO prior to consideration by the Board. See 38 C.F.R. § 20.1304(c) (2012). Nevertheless, the Board is unable to address this aspect of his claim at this point. Specifically, a total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service (C&P) for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). In this case, the Veteran is service-connected for a left knee disability (with a 30 percent disability rating), low back disability (20 percent) and for neuropathy in the lower extremities (10 percent for each extremity). His total disability rating is 60 percent. Therefore, he does not meet the schedular criteria. However, given the new evidence submitted by the Veteran, the Board determines that there is sufficient evidence to refer his case to C&P for an evaluation of his unemployability. Accordingly, the case is REMANDED for the following action: 1. Acquire any treatment records that may be available from the VA Medical Center in Cincinnati, Ohio, since August 2012. If the Veteran has undergone any private treatment for his service connected disabilities, and the records of such treatment have not been associated with the claims file, such records should also be acquired after obtaining his authorization. 2. Schedule the Veteran for an appropriate VA examination, with an examiner other than the one who performed the examinations in May 2011 and April 2012, to assess the effects of his service-connected disabilities on his ability to maintain employment consistent with his education and occupational experience. The claims file and a complete copy of this Remand must be made available to the VA examiner for review in conjunction with the employment examination. All necessary special studies or tests are to be accomplished. The VA examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on a review of the case and the claims file, the VA examiner must provide an opinion as to whether the Veteran's service-connected disabilities collectively preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. The term "substantially gainful employment" is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The examiner must consider the Veteran's lay statements regarding his disorders. All findings and comments should be set forth in a legible report and any opinions should be accompanied by a thorough discussion explaining the basis for the given opinion. Such an explanation may include, but is not limited to, a discussion of the Veteran's symptoms, his current service-connected disabilities, his symptoms during active duty service, and the presence of any underlying pathology. 3. Thereafter, RO should refer the matter to the Director of Compensation and Pension for a determination as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). If the benefit sought on appeal remains denied, the Veteran should be furnished an appropriate SSOC and provided opportunity to respond. Then, return the case to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs