Citation Nr: 1315519 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 07-34 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho. THE ISSUES 1. Entitlement to a rating greater than 10 percent prior to April 6, 2011 and a rating greater than 20 percent thereafter for degenerative disc disease of the lumbar spine. 2. Entitlement to a rating greater than 10 percent for hypertension. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1981 to October 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from adverse rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In March 2011, the Board remanded the Veteran's claims for additional development. The claims have since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU rating claim is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, the April 2011 VA examiner stated that the Veteran "does not and cannot work due to his back pain. As such the Board finds that the issue of TDIU has been raised by the record. Therefore, as the issue of TDIU has been raised, it is considered part and parcel of the increased rating claims, and is properly before the Board. See Id. Thus, the issues are as noted on the title page. 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. Giving the Veteran the benefit of the doubt, the evidence shows that throughout the rating period on appeal, the Veteran's back disability has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 2. The Veteran's hypertension is not manifested by diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 20 percent, but no higher, have been met for the Veteran's back disability prior to April 6, 2011. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). 2. The criteria for a rating in excess of 20 percent for the Veteran's back disability from April 6, 2011 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). 3. The criteria for an evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2., 4.3, 4.6, 4.7, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2012). Back The Veteran contends he is entitled to an increased disability rating in excess of 10 percent prior to April 6, 2011 and a rating in excess of 20 percent thereafter for his service-connected back disability. Under the general rating formula for diseases and injuries of the spine set forth in Diagnostic Codes (DC) 5235-5242, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; when muscle spasm, guarding, or localized tenderness does not result in either an abnormal gait or abnormal spinal contour; or when there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires either that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that favorable ankylosis of the entire thoracolumbar spine is shown. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Note 2. The Board must consider functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 when deciding whether a higher disability evaluation is warranted. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. A private May 2007 lumbar spine x-ray showed multi-level spondylosis affecting the whole lumbar spine with anterior osteophyte formation. Also present was fairly well maintained lordosis but mild degenerative scholiosis resulting from multi-level degenerative disc disease. A private June 2007 lumbar bone scan showed multiple areas of increased activity in the lower thoracic and the lumbosacral spine consistent with facet arthropathy and degenerative disease. The Veteran underwent a VA examination in December 2006. The examiner diagnosed lumbar spine degenerative disc disease. The examiner found the Veteran's thoracolumbar spine had flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 12 degrees, left lateral rotation to 30 degrees, right lateral flexion to 13 degrees, and right lateral rotation to 30 degrees. Pain was noted on motion with right and left lateral flexion with an additional loss of motion of 13 degrees and 12 degrees respectively. A history of stiffness, spasms, and pain was noted but decreased motion was not. The Veteran reported weekly flare-ups and said he was only able to walk a quarter of a mile. The examiner found spasm and pain with motion on the left and right of the thoracic spine. The examiner stated that the Veteran had an antalgic gait and spinal list, but that the symptoms were not severe enough to be responsible for abnormal gait or spinal contour. A sensory examination of the Veteran's lower extremities was normal. No thoracolumbar spine ankylosis was noted. The Veteran underwent another VA examination on April 6, 2011. The examiner diagnosed multilevel thoracic and lumbar facet arthropathy, severe multilevel degenerative disc disease, and mild lumbar radiculopathy caused by degenerative disk disease. The Veteran reported at the examination that he is unable to sit upright or stand stationary because of intense pain. He said he experiences decreased motion, stiffness, weakness, spasm, and spine pain that radiates to the right and left of the spine. He stated he is able to walk more than a quarter of a mile but less than a mile using a cane. The Veteran reported he experiences flare-ups weekly that last one to two days, precipitated by standing upright and sitting erect. He stated that he is unable to cook, clean, or drive during flare-ups. The examiner noted the Veteran walks with an antagic gait due to back pain, scoliosis, and bilateral hip replacements. He found no spine ankylosis. On examination he found spasm, guarding, and pain with motion to the left and right; however, he stated the symptoms were not severe enough to be responsible for the Veteran's abnormal gait or spinal contour. The examiner found the Veteran's thoracolumbar spine had flexion to 36 degrees, extension to 4 degrees, left lateral flexion to 5 degrees, left lateral rotation to 15 degrees, right lateral flexion to 25 degrees, and right lateral rotation to 20 degrees. Pain was noted on motion. The examiner found evidence of pain following repetitive motion, but stated that the Veteran was unwilling to proceed with further range of motion testing due to intense pain on motion. The examiner noted that the Veteran required frequent rest periods throughout the examination and there were multiple episodes of spasm and radiating pain to the left and right of the spine during the examination. The examiner stated that the Veteran cannot lift, squat, bend, turn, stand, or sit without significant pain in his lower back. The examiner noted that the Veteran's back disability was part of the reason he was deemed disabled by Social Security and that the Veteran cannot work due to his back pain. Sensory examination of the Veteran's lower extremities was normal. The examiner stated that he detected no current nerve impairment in the Veteran's lower extremities and therefore did not conduct a new EMG or nerve conduction test. In an October 2007 statement the Veteran contended his April 2011 examination more accurately represents the severity his back disability over the past four to five years than the December 2006 VA examination. He specifically disagreed with the December 2006 examiner's finding that his flexion was 90 degrees with no pain or change with repetition. He stated that repetitive motion testing was not done because he was in too much pain. In July 2011, the Veteran filed a statement arguing that his December 2006 examination should have shown the same level of disability as his April 2011 examination. He stated that his condition has not changed over the past four to five years. He further argued the nurse practitioner who was the examiner in December 2006 was not qualified to perform the examination. Therefore, he argued that the effective date for his increased rating should be prior to April 2011. Although the Veteran's December 2006 range of motion testing does not meet the criteria for a 20 percent rating, private physical therapy records from 2006 and 2007 suggest that the Veteran's overall condition may have been worse than represented in that examination at that time. At an August 2006 private physical therapy appointment following his hip replacement surgery, the Veteran's lumbar spine active range of motion was measured at 55 degrees forward flexion, 20 degrees extension, 10 degrees right flexion, and 30 degrees left flexion. In September, the therapist noted the Veteran's lumbar spine active range of motion "continues to show significant limitations in extension to the lower lumbar spine with other numbers equal to evaluation listing." In October, his therapist stated that his range of motion "continues to show limitations in extension greatest with primary active motion roughly equal to past letter." In December, his therapist stated that his lumbar spine range of motion continued to be limited. January 2007, his therapist measured his forward flexion to 65 degrees including hip flexion mobility, extension to 5 degrees with pain, left flexion to 10 degrees with pain, right flexion to 30 degrees with mild pain on the left side, left rotation in sitting to 35 degrees with pain, and right rotation in sitting to 40 degrees. In May 2007 the Veteran was seen at a private orthopedic clinic where he was diagnosed with multi-level spondylosis of the lumbar spine. The private doctor stated that the Veteran was able to flex to his mid-tibias, extension was about ten degrees, and en bloc rotation testing was negative on the right and positive on the left. Notably, in the months prior to the December 2006 VA examination and in the month after, range of motion testing done at the Veteran's private physical therapy appointments show markedly less range of motion than is shown on the VA examination, particularly with regard to forward flexion. While his forward flexion was measured at 90 degrees at his VA examination in December 2006, it was measured at 55 degrees in August 2006, five months prior, and 65 degrees including hip flexion in January 2007, one month later. The Board gives significant weight to the repeated testing shown in treatment records that reflects less range of motion than the full 90 degrees of flexion noted on his VA examination. Further, through the course of the appeal the Veteran has raised doubts as to the accuracy of the December 2006 examination results, particularly with regard to his forward flexion. His April 2011 VA examination also shows markedly less range of motion than reflected on his December 2006 examination, specifically forward flexion to only 36 degrees. The Veteran has stated that the severity of his lumbar spine disability has remained the same over the past four to five years. That contention is supported by his private physical therapy records from 2006 and 2007. The Board finds the Veteran's statements to be competent and credible. A 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees. In August 2006 the Veteran's forward flexion was measured by his physical therapist at 55 degrees. In January 2007 it was measured at 65 degrees including hip flexion. Awarding the benefit of the doubt to the Veteran, the Board finds a 20 percent rating more accurately represents the Veteran's disability prior to April 6, 2011. The Board does note that VA is not prohibited from having nurse practitioners or physician assistants conduct examinations. VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The evidence in this case does not support that the nurse practitioner who performed the December 2006 examination was not qualified. The Veteran is not entitled to a 40 percent evaluation for any period. A 40 percent evaluation requires either that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that favorable ankylosis of the entire thoracolumbar spine is shown. No range of motion testing has shown the Veteran has forward flexion of 30 degrees or less, nor is there any evidence in the record that he has ankylosis. The Board has also considered functional loss due to pain. See 38 C.F.R. §§ 4.40 and 4.45, DeLuca, 8 Vet. App. 202. The examiner who conducted the April 2011 VA examination observed that repetitive motion testing of the spine caused pain and the Veteran declined to proceed with repetitive range of motion testing, reporting that he was having intense pain and sharp stabbing pain. While this evidence might suggest an additional loss in range of motion due to pain from repetition, the evidence as a whole is not indicative of an additional functional loss significant enough to reduce the Veteran's range of motion to 30 degrees or less forward flexion or comparable to a 40 percent disability evaluation. Notably, the Veteran's VA medical records mention back pain only generally and periodically with no suggestion of such serious functional loss on repeititon. For example, in August 2009 at a VA appointment he reported hip and groin pain with exercise and shoulder pain after fishing, but did not mention back pain. In February 2009 he reported that back pain only sometimes affects his daily activities. While more recently in April 2011 a VA doctor noted the Veteran moved slowly with a limp and had difficulty getting out of a chair, those difficulties were not specifically attributed to his back and no functional limitations attributed to his back are mentioned in his recent VA medical records. It is important to note that the Board is not basing its decision solely on the range of motion testing done at the Veteran's VA examinations. The Board has carefully considered all of the Veteran's medical records and the Veteran's statements, including his descriptions of painful motion. However, the Veteran should understand that without problems associated with his back disability there would be no basis for a compensable evaluation, let alone the current evaluation, which by definition must cause the Veteran some limitation in his activities. Even taking into consideration the Veteran's statements, the evidence does not support a higher rating. Accordingly, the Board finds the Veteran is entitled to a 20 percent rating for his back disability prior to April 6, 2011 and thereafter. The preponderance of the evidence is against the assignment of a rating in excess of 20 percent for any period under DC 5235-5242. The benefit of the doubt doctrine is not applicable because the preponderance of the evidence is against a rating in excess of 20 percent. See Gilbert v. Derwinski, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Veteran's VA examination reports did not show he has any associated neurological abnormalities and there is no other evidence of neurological abnormalities associated with the Veteran's back disability. Thus, separate ratings are not warranted for associated neurological abnormalities. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Because the Veteran has been diagnosed with degenerative disc disease, his disability of the low back may also be rated using the criteria for evaluating intervertebral disc syndrome under DC 5243. See 38 C.F.R. § 4.71a, Note (6). Under DC 5243, intervertebral disc syndrome (pre-operatively or post-operatively) is to be evaluated 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 when all disabilities are combined under 38 C.F.R. § 4.25. Id. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks. See 38 C.F.R. § 4.71a (DC 5243). An incapacitating 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. See 38 C.F.R. § 4.71a Note (1). Although the Veteran reported some lost time from work and subsequently stopping working due to back pain, the evidence does not show that he has ever been prescribed bed rest and treatment by a physician due to back pain. Thus, the Board finds that the Veteran has not had any incapacitating episodes within the meaning of DC 5243. Accordingly, a higher rating based on the alternative ratings formula for intervertebral disc syndrome is not warranted. Further, the Board finds an extraschedular rating is not warranted. In an exceptional case where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made 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"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's back disability that would render the schedular criteria inadequate. The Veteran's main complained of symptoms are pain and reduced range of motion, both of which are contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, there is no evidence of any hospitalization associated with the Veteran's back disability. In addition, the Board finds the record does not reflect that the Veteran's back disability markedly interferes with his ability to work apart from his separate non-service-connected hip disability. See 38 C.F.R. § 4.1 (indicating that generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). The manifestations of the Veteran's disability are considered by the scheduler rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Hypertension The Veteran seeks an increased rating in excess of 10 percent for his service-connected hypertension, rated under DC 7101, which rates hypertensive vascular disease, including hypertension and isolated systolic hypertension. See 38 C.F.R. § 4.104. The rating schedule provides a 10 percent evaluation when diastolic pressure is predominantly 100 or more, or when systolic pressure is predominantly 160 or more, or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. A 40 percent evaluation requires diastolic pressure of predominantly 120 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran underwent a VA examination in February 2007. He was noted to have started on blood pressure medications in October 1997 and his condition was noted to have gotten progressively worse since its onset in 1981. He was noted to have recently started new medication. His blood pressure was measured at 142/98. The Veteran was then administered three blood pressure readings, which were 135/98, 134/92, and 139/96. The Veteran underwent another VA examination in January 2008. His blood pressure was measured at 130/76. His blood pressure was measured during VA appointments as the following: February 2009, 113/68; March 2009, 121/77; May 2009, 118/66; December 2009, 136/87; April 2010, 103/61. The Veteran another VA examination in April 2011. He was noted to have been on blood pressure medication for the last 15 years and his condition to be stable. His blood pressure was measured at 137/85, 130/84, and 125/85. An an April 2011 VA appointment his blood pressure was 121/84 and noted to be well-controlled. At a September 2011 appointment his blood pressure was 118/77. An evaluation in excess of 10 percent is not warranted for any time during the appeal period as the Veteran's diastolic blood pressure has never been shown to be 110 or more nor his systolic pressure 200 or more on readings taken at the time of the VA examinations or as part of outpatient visits. Nor has the Veteran reported readings that high. The preponderance of the evidence is against the assignment of an evaluation in excess of 10 percent for the Veteran's service-connected hypertension. 38 U.S.C.A. § 5107(b) . The benefit of the doubt doctrine is not applicable because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Duties to Notify and Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). RO letters dated in November 2006 and January 2007 informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b), as stated above. In a May 2008 letter the RO provided notice with regard to how VA assigns disability ratings for back disabilities and hypertension. As such, the VCAA duty to notify was satisfied. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records identified by the Veteran. The Veteran also submitted statements. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded VA medical examinations in December 2006, February 2007, and April 2011. The examiners, medical professionals, reviewed the Veteran's records, obtained an accurate history, listened to the Veteran's assertions, and performed appropriate tests. The examiners provided the Board with sufficient information to rate the Veteran's disability. Therefore, the Board finds that the examinations are adequate and contain sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran 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, 16 Vet. App. 183. ORDER A disability evaluation of 20 percent prior to April 6, 2011 is granted. A disability evaluation of greater than 20 percent from April 6, 2011 is denied. A disability evaluation in excess of 10 percent for hypertension is denied. REMAND With regard to the Veteran's claim of entitlement to a TDIU, in Rice v. Shinseki, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The April 2011 VA examiner stated that the Veteran "does not and cannot work due to his back pain." The law provides that TDIU may be granted upon a showing that a Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16 (2012). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Additionally the Board notes that rating boards are required to submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who failed to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The Court has held that, when a Veteran does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b), but may refer the claim to the C&P Director for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). After giving the Veteran an opportunity to file a formal claim for a TDIU, the RO should adjudicate this matter in the first instance, to avoid any prejudice to the Veteran. See e.g. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Accordingly, the case is REMANDED for the following action: 1. Provide appropriate Veterans Claims Assistance Act notice with respect to the claim for a TDIU. Ask the Veteran to complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based upon Unemployability. Also ask the Veteran to furnish any additional information and/or evidence pertinent to the claims for a TDIU (if the Veteran does not wish to file such a claim, he may withdraw the claim in writing). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. 3. Once the above development is completed, schedule the Veteran for a VA examination. The examiner should be provided with the Veteran's claim file and asked to fully review it. The examiner should specifically indicate whether the Veteran is precluded from obtaining or maintaining any gainful employment (consistent with his education and occupational experience) solely due to his service-connected disabilities (back disability, shoulder disability, hypertension, residual scars, residuals of tonsillectomy, and erectile dysfunction). Any opinion should be supported by a rationale. 4. When the development requested has been completed, the claim should be adjudicated. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant 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 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs