Citation Nr: 1316817 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-18 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating for right leg peripheral neuropathy, currently rated 40 percent disabling. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran had active duty service from April 1983 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied an increased rating for right leg peripheral neuropathy, rated as 20 percent disabling. In January 2007, the RO increased the rating for right leg peripheral neuropathy to 40 percent disabling, effective December 29, 2004 - the date which was recognized as the date of the claim for increase. The Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) in December 2008; a transcript of the hearing is associated with the claims file. The Board remanded the claim for further development in June 2009. The case was returned to the Board in February 2010. The VLJ who held the Veteran's hearing had retired from the Board by that time. Later in February 2010, the Veteran indicated that he wished to have another hearing. The Board remanded the case in July 2010 in order for another hearing to be scheduled. The Veteran was scheduled for a hearing before a VLJ in November 2011; however, he failed, without explanation, to appear. Therefore, the hearing request is considered withdrawn, and the Board will proceed without the benefit of another hearing in this case. See 38 C.F.R. § 20.702(d) (2012). This matter was remanded in October 2012. The issue of entitlement to TDIU is REMANDED to the RO via the Appeals Management Center (AMC). The Veteran will be advised if further action is required on his part. FINDING OF FACT The Veteran's peripheral neuropathy, right leg, is manifested by moderately severe incomplete paralysis but not manifested by marked muscular atrophy or complete paralysis. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 40 percent for peripheral neuropathy, right leg, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Codes 8520, 8620 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the Veteran in a VCAA letter issued in December 2005. The letter predated the June 2006 rating decision. See id. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his increased rating claim, what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA. In August 2008, notice was issued with regard to the types of evidence necessary to establish a disability rating and effective date. Id.; see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A decision from the Court that provided additional guidance on the content of the notice that is required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increase compensation benefits. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Board points out that the U.S. Court of Appeals for the Federal Circuit reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In any event, notice per Vazquez was issued to the Veteran in August 2008, thus the Veteran has received proper notice per Vazquez. The Board also finds that VA has complied with all assistance duties of VCAA. The evidence of record contains the Veteran's VA treatment records, private treatment records, and lay statements and testimony of the Veteran. In December 2006, the Social Security Administration (SSA) stated that the Veteran was not entitled to disability or SSI benefits and there was no medical on file. The evidence of record contains VA examination reports dated in March 2006, May 2007, and September 2009. In the October 2012 Board Remand, it was noted that at the September 2009 VA examination it was noted that the Veteran was intoxicated and the examiner noted that his imbalance might be due to his service-connected disabilities or related to intoxication, but he was unable to determine which in the Veteran's current state. Thus, the Board remanded the issue to afford the Veteran another VA examination. A notice letter in the claims folder shows that the Veteran was scheduled to attend a VA examination in January 2013; however, he failed to appear. The supplemental statement of the case (SSOC) also indicates that he was scheduled to attend VA examinations on November 2 and November 16, 2012; however, he failed to appear. The Veteran was notified of the examinations and the SSOC discusses his failure to appear. Examples of good cause for failure to appear for the examination include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). To date, the Veteran has not offered an explanation for his failure to attend the scheduled examinations. The Board's remand explained why this examination was necessary. While VA has a duty to assist the Veteran in the development of his claim, the Veteran has a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Under the provisions of 38 C.F.R. § 3.655 (2012), where a claimant fails to report for a necessary examination in conjunction with a claim for increase, the claim will be denied. The AMC did not provide the Veteran with notice of these provisions and told the Veteran that his failure to report meant only that the claim would be decided on the basis of the evidence of record. Because the AMC did not provide notice, the Board will adjudicate the claim on the merits. The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) (2012) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's hearing the issues were identified. There was a discussion of possible evidence that could substantiate the claims. Questioning at the hearing resulted in the remand for examinations and efforts to obtain additional records. The Bryant requirements were thereby complied with. For the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disability. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The RO has assigned a 40 percent disability rating for peripheral neuropathy, right leg, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, sciatic nerve. Per Diagnostic Code 8520 "moderately severe" incomplete paralysis warrants a 40 percent rating; "severe, with marked muscular atrophy" incomplete paralysis warrants a 60 percent rating; and, "the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost" complete paralysis warrants a 80 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis," with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a, note before Diagnostic Code 8510 (2012) During service the Veteran was involved in a motorcycle accident resulting in a right tibia fibular fracture at midshaft. Service connection was established for nerve damage, right lower extremity, rated 20 percent disabling, and status post tibia-fibula fracture of the right lower extremity, rated noncompensably disabling, both effective August 16, 1999. A 40 percent disability rating was assigned to nerve injury, right posterior tibial nerve, effective December 29, 2004. A May 2005 VA neurology evaluation reflects complaints of pain in the distal right leg and unsteadiness. He might veer to either side. On physical examination, he complained of current right leg pain at an 8 or 9 out of 10 and burning. The examiner stated this was an overestimate judging from his appearance and his ability to move. The legs did not appear to have atrophy. There did appear to be atrophy of the right extensor digitorum brevis muscle (a muscle of the upper surface of the foot). He could dorsiflex his right foot. He had decreased sharpness for the distal leg, but not the undersurface of the foot, but he said the back of the heel was numb. The distribution did not follow peripheral nerve distribution or root distribution clearly. There was ability to feel movement of the right great toe. When he walked he put less pressure on his right lower extremity. He could not stand on his heels or toes. The gait was antalgic when seen in the office, but as he was watched walking down the hall his gait appeared to be normal. The examiner's impression was that as there was a family history suggesting Huntington's disease, this evaluation is appropriate. A second diagnosis would be traumatic neuropathy of the right lower extremity with excess pain complaining behavior which would not be considered entirely physiologic. There is, however, documented injury to nerve root. A July 2005 VA outpatient evaluation reflects that the Veteran was able to walk without an aide. He had a limp and antalgic gait grimacing with every step. He could not demonstrate any active movement of the toes or the foot on the right side. The deep tendon reflexes were normal on the right side, the patella reflex was 2+ and Achilles reflex was not attempted because of the severe pain in the area. There was no obvious sign of circulatory problem in the lower extremities. The examiner stated that he had a known nerve injury on his right leg and his symptoms correspond with causalgia (intense burning pain and sensitivity to the slightest vibration or touch) mostly at the distribution of the posterior tibial nerve distribution distal to the injury site. VA treatment records from 2005 also reflect the Veteran's complaints of balance problems and on neurological examination he appeared unstable with bending down. Sensory exam was not normal as he had decrease pinprick in the upper and lower extremities, and back. The assessments were ataxia versus Huntington's Chorea versus other. The examiner noted that the Veteran's alcohol misuse was to the point of alcoholism. VA treatment records reflect treatment for right leg neuropathic pain syndrome with nerve blocks and Doxepin cream. A March 2006 VA examination report reflects that while the Veteran had mild, dull pain at the site of the fracture, his most significant problems were in the sensation distal to the fracture that basically involves a progressive dysaesthesia in a stocking distribution. The Veteran reported that the pain was unvarying, without flare-ups. Repetitive motion was precluded in the foot due to the inability to withstand pressure on the area so that he is limited to short distances supported by a cane, with intermittent unweighting by standing predominantly on the left foot. He medicated with Naproxen 500 mg twice daily and Amitriptyline 100 mg at night. He used a cane all the time and wore over-the-counter sneakers, rather than specialized shoes, which he replaced on a weekly basis to ensure support and cushioning. He reported using a wheeled walker that he inherited from an uncle. On physical examination, there was bilateral symmetry of the length of the legs. There was no edema or overlying skin alteration of the right extremity. In the stocking distribution, the right leg was slightly cooler than the left and slightly less moist. The Veteran carried a cane in the right hand, placing less weight on the right foot and moving with a slightly shuffling gait. He did, however, strike the heel and roll onto the forefoot but did not push off the toes. The hip and knee joints on the right side were unaffected. The circumference of the thighs at 6 inches above the upper pole of the patella were 151/2 inches on the right and 16 on the left. The circumference of the calves 6 inches below the lower pole of the patella were 13 inches on the right and 12 inches on the left. The ankles were similar in configuration and the circumference of the forefoot was 10 inches bilaterally. He had exaggerated hypersensitivity response to touch that varied at times and when distracted. The examiner got a variable response to position testing in the toes. Peripheral pulses were intact. Reflexes at the knees were 2/4 bilaterally, at the ankles 0/4. Plantar and extension strength in the left ankle was 5/5, of the right ankle extension was 3+ and flexion was 4. Passive range of motion of the right foot was similar to measures of active range of motion of the left foot. There were no flare-ups in the Veteran's symptoms. With regard to peripheral nerves, the above evaluation of bones provided the symptoms and findings for the peripheral nerve examination. The examiner noted that the Veteran's also had lumbar spine pain and symptomatology. The examiner noted that the Veteran primarily uses his cane to tale weight off the right leg. It did provide some stability and the Veteran indicated that sometimes the ankle would give way. The examiner believed that the Veteran's gait was affected by the pain coming from his right leg rather than his back. Nerve conduction studies revealed peripheral neuropathies involving the peroneal and posterior tibial nerves, as well as branches feeding these nerves. The examiner diagnosed degenerative joint and disc disease of the lumbar spine; degenerative disease of the small bones of the right foot; and, peripheral neuropathy involving the posterior tibial and peroneal nerves on the right, as well as more proximal injuries of the branches of the sciatic nerve contributing to the posterior tibial and peroneal nerves. The examiner commented that at the time of the original injury at the site of the break, the only nerve cited as a source of neuropathy was the posterior tibial, as the case has evolved, it would seem as likely as not that the peroneal nerve on the right was also involved. The peripheral neuropathy, with paresthesias appeared to be aggravated by the original fracture and the resulting injury to the posterior tibial and likely peroneal nerves on the right. In May 2007, the Veteran underwent a VA joints examination. He complained of burning pain in the right toes and foot. He also reported numbness from the break mid-calf through the toes. He reported difficulty moving the ankle. His gait was antalgic but there was no evidence of abnormal weight bearing. There was weakness in the right ankle but no ankle instability, abnormality, or angulation. Dorsiflexion was to 10 degrees, plantar flexion was to 30 degrees. The resisted isometric movement was normal. There was no ankylosis. Bilateral foot pulses were 2/4. The examiner diagnosed status post tibial/fibula fracture right lower leg; peripheral neuropathy secondary to fracture of right lower leg. He also underwent a May 2007 VA peripheral nerve examination. He reported the same subjective symptoms as noted above. On motor examination, the dorsiflexor muscle strength was 4. There was weakness of dorsiflexion in the peroneal nerve. Plantar flexion muscle strength was 4. The weakness of plantar flexion was in the tibial nerve. On sensory examination of the right lower extremity, pain was absent. In the plantar and dorsal foot to mid calf there was decreased sensation to light touch and the position sense was decreased. The location of the abnormality was in the first toe. The affected nerves were L4, 5 and S1. On detailed reflex examination, right ankle reflex was 1+. There was muscle atrophy present in the thighs due to disuse and in the right calf due to nerve damage. There was no abnormal muscle tone or bulk; no tremors, tics, or other abnormal movements; and, no joint affected by the nerve disorder. His gait was antalgic. The examiner diagnosed peripheral neuropathy, right leg, due to traumatic injury and tibia/fibula fracture right lower leg. Neuritis and neuralgia were present but there was no paralysis. He is prevented from doing chores, exercise, and sports. There is a moderate effect on shopping and recreation. There is a severe effect on traveling. There was no effect on grooming, toileting, dressing, bathing, and feeding. At the December 2008 hearing the Veteran testified that he used a cane at all times. His representative said that he had looked at the Veteran's right leg and it was "extremely skinny, showing some muscle atrophy." The Veteran testified that he had no right leg function from the knee down. In September 2009, the Veteran underwent another VA peripheral nerve examination. The examiner noted a history of substance abuse, not currently under treatment and a pain syndrome. The Veteran indicated that due to his balance problems he was unable to drive and could not do anything. He said that he had difficulty walking at night and would stumble if he closed his eyes when ambulating. He used no supportive device for the leg but did carry a cane in his right hand to make up for the 1 inch shortening. He wore no special shoes. There was no cordal lesion but a history of degenerative disc disease of the L4-L5 and L5-S1 interspaces. On physical examination, it was observed that he carried a cane in his right hand and coming down somewhat harder on his right foot with a broader based gait than normal. Motor function revealed normal bulk, tone, lack of fasciculation and strength (5/5), including grasp in the major anterior and posterior muscle groups of the upper and lower extremities bilaterally. The circumference of the thighs measured 15 centimeters above the upper pole of the patella were 40 centimeters on the right and 39.8 on the left. Circumferences of the calves measured at their widest point 16 cm below the lower pole of the patella were 31 on the right and 31.5 on the left. Sensation was intact to the monofilament in the upper and lower extremities with the exception of the lateral and plantar surfaces of the Veteran's foot and about 1/3 of the way up the lateral aspect of his left lower leg. When stroking the foot with the monofilament, this was the only area not perceived by the Veteran. Position sense was intact in all 4 extremities and temperature equivocal in the right foot. Elsewhere it was normal. Cerebella function revealed a broad-based gait without attempt at tandem walking. No truncal ataxia was noted. Romberg test was negative. Deep tendon reflexes at the right Achilles were questionable. No pathological reflexes were elicited. The examiner commented that some of the responses and findings might have been compromised by alcohol consumption that left a strong odor on the Veteran's breath at 1:30 in the afternoon. The examiner diagnosed right peroneal and right posterior tibial peripheral neuropathy secondary to traumatic injury as described; and, degenerative joint and disc disease of the lumbar spine, specifically the L4-5 and L5-S1 levels, with pars defects at the L4-L5 level and anterolisthesis of L4 over L5, secondary thereto. The Veteran reported that he did not drive because he could not feel the gas pedal. He socialized on a daily basis at a VFW club nearby. He stated that he could not walk more than 200 feet due to the imbalance and pain. He managed to dress, feed, toilet, and bathe. He stated his restrictions are mostly due to his imbalance. The examiner commented that a slight imbalance would be expected from the unequal length of the Veteran's legs and the sensory loss on his right leg and foot. Such deficits would not result in the degrees of imbalance described by the Veteran. The examiner observed that the Veteran's gait improved somewhat, though remained somewhat broad-based, due to the Veteran's acute state of insobriety or more chronic affects on peripheral nerves, specifically the posterior columns or even the paleocerebellum. This could not be determined in the Veteran's current state. Early blood studies indicated a possible nutritional deficiency that would be consistent with low B12 and folate levels that could, with chronicity, affect the posterior columns. Analysis Although the Veteran's disability has been noted to involve the posterior tibial and peroneal nerves. Disability of these nerves is potentially ratable under separate diagnostic codes. 38 C.F.R. § 4.124a, Diagnostic Codes 8521, 8525 (2012). Diagnostic Code 8521 provides a 20 percent rating for moderate incomplete paralysis of the common peroneal nerve and a 30 percent rating for severe paralysis of that nerve; while Diagnostic Code 8525 provides a 10 percent rating for moderate incomplete paralysis of the posterior tibial nerve and a 20 percent rating for severe incomplete paralysis. Ratings under these codes would result in lower combined ratings than are afforded under Diagnostic Code 8520, pertaining to the sciatic nerve. See 38 C.F.R. § 4.25 (2012). These nerves are, as described by one examiner, branches of the sciatic nerve; hence, the Veteran's disability is being rated under Diagnostic Code 8520. As previously noted the severe rating under Diagnostic Code 8520 contemplates a severe disability with marked atrophy. Findings during the course of this appeal have ranged from no atrophy to "some" atrophy of the right calf muscles. Reported measurements of the circumferences of the left and right lower extremities have shown that the right lower extremity was at most .5 cm. less than the left. While the Veteran's representative has reported his observation that the right lower extremity was "very skinny," the representative did not report any comparison of the left to the right lower extremity; and the more detailed observations on examinations have not yielded any findings that could be read as showing marked atrophy. The Veteran testified that he had no use of the right leg below the knee. His testimony is competent evidence of complete paralysis under Diagnostic Code 8520. Examinations before and after his testimony; however, have shown that he retains significant function throughout the right lower extremity. He has been able to move his ankle and knee and retains active movement. The most recent examination in September 2009, revealed normal muscle strength in the right lower extremity. There is also ample reason to doubt the credibility of the Veteran's reports as to the severity of his disability. Reasons to doubt the Veteran's credibility begin with the May 2005 examination when the Veteran's estimate of his pain level was found to be inconsistent with his observed disability and ability to move; and he exhibited an antalgic gait during the examination, but could walk normally when out of the examination room. In March 2006, he was noted to provide exaggerated and variable reports of symptoms that were apparently not present when he was distracted. It is also expected that if the Veteran had complete loss of use of the leg below the knee, there would have been some objective findings to this effect on the numerous examination provided during the course of the appeal, but such has not been the case. The Veteran has also pointed to a finding in a Social Security Administration decision that he had a number of "severe" disabilities including the service connected right leg disability. There is no explanation; however, as to the basis for the finding, and there is no indication that it was made in accordance with VA rating criteria; hence it is of limited probative value and is outweighed by the specific findings on examinations. The Board finds that a disability rating in excess of 40 percent is not warranted for peripheral neuropathy, right lower extremity. The credible and competent evidence of record does not reflect a disability that approximates severe incomplete paralysis with marked muscular atrophy nor complete paralysis. 38 C.F.R. §§ 4.7, 4.21; See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Extraschedular Consideration In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. The Veteran's inferred claim for a TDIU is discussed in the Remand below. ORDER Entitlement to a disability rating in excess of 40 percent for right leg peripheral neuropathy is denied. REMAND During the pendency of the appeal, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The evidence of record reflects that the Veteran worked as a cabinet maker but he asserts he "retired" many years ago due to his right leg disability, specifically his neuropathy. There is no specific medical opinion which addresses his unemployability due to service connected disabilities, although he has been awarded Social Security disability benefits on the basis of multiple disabilities, including the service connected right leg disability. As there is evidence of unemployability during the entire appeal period, the Veteran is presumed to be seeking the highest rating possible. Thus, given the evidence of a medical disability, the claim for the highest rating possible, and evidence of unemployability, the record raises a claim for a TDIU under Roberson and Rice and the issue is properly before the Board as part of the appeal for an increased rating for peripheral neuropathy, right lower extremity. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Service connection is in effect for right leg, peripheral neuropathy, rated 40 percent disabling, effective December 29, 2004, and status post tibia-fibula fracture of the right lower extremity, rated noncompensably disabling, effective August 16, 1999. The Veteran's service-connected disabilities do not currently meet the percentage requirements for a TDIU pursuant to 38 C.F.R. § 4.16(a). As the Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also 38 C.F.R. § 3.321(b)(1) (providing for an extra-schedular disability when there is an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization). Under 38 C.F.R. § 4.16(b), all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Before a finding may be made that entitlement to submission of the Veteran's claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular consideration is warranted, there must be a showing of marked interference with employment, or an inability to secure or follow a substantially gainful occupation by reason of service-connected disability. Bowling v. Principi, 15 Vet. App. 1 (2001). The Court has held that in the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the Veteran's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The record does not include an opinion as to the combined effect of the service connected disabilities on employment. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran complete an application for TDIU that includes reports of his education, occupational experience, and dates of employment. 2. Schedule the Veteran a VA examination to determine whether the Veteran's service connected disabilities (peripheral neuropathy, right lower extremity, and status post tibia-fibula fracture of the right lower extremity) in combination preclude gainful employment for which his education and occupational experience would otherwise qualify him. The claims folder including this remand must be made available to the examiner and reviewed in conjunction with the examination. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. Then, if the Veteran does not meet the percentage requirement for TDIU adjudicate entitlement to a TDIU pursuant to § 4.16(b). 4. If the Veteran fails, without good cause, to report for any scheduled VA examination, insure that a copy of any notice sent to him is included in the claims folder. Then adjudicate the TDIU question, considering, if necessary, the provisions of 38 C.F.R. § 3.655(b) (requiring that certain claims be denied when a claimant fails without good cause to report for necessary examinations). 5. If the benefit sought is not granted in full, a supplemental statement of the case should be issued. The appeals should then be returned to the Board, if otherwise in order The Veteran and his representative have 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). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs