Citation Nr: 1319123 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 06-24 661 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for a herniated nucleus pulposus, L4-S1, status post spinal fusion, currently rated as 60 percent disabling. 2. Entitlement to an increased rating for hypertension with hypertensive heart disease (previously characterized as hypertension with cardiomegaly), currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1971, and from November 1971 to February 1988. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2005 rating decision in which the RO denied a rating in excess of 60 percent for a herniated nucleus pulposus, L4-S1, status post spinal fusion, and entitlement to a rating greater than 10 percent for hypertension with mild cardiomegaly. The Veteran filed a notice of disagreement (NOD) in January 2006, and the RO issued a statement of the case (SOC) in June 2006. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in July 2006. By decision of June 2006, the RO awarded a 30 percent rating for hypertensive heart disease (previously evaluated as hypertension with mild cardiomegaly) effective to the date of claim; April 8, 2004. The Veteran failed to report for a Board video-conference hearing in August 2008. He has not requested that the hearing be rescheduled. Accordingly, his request for a Board hearing has been deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). In August 2010 and September 2011, the Board remanded both claims then on appeal to the RO, via the Appeals Management Center (AMC), for further action, to include additional development of the evidence. After completing the requested development, the AMC continued both claims (as reflected in an August 2012 supplemental SOC (SSOC)), and returned the appeal to the Board for further appellate consideration. The Board has rephrased the issue involving the Veteran's service-connected hypertension with hypertensive heart disease to better reflect the claim on appeal and the applicable diagnostic criteria. A review of the Virtual VA electronic storage system reveals that additional VA clinic records were associated with the record in May 2013. These records, which have not been considered by the RO with respect to the thoracolumbar spine claim on appeal, deal exclusively with hypertension-induced kidney disease and are not pertinent to the claim being decided on appeal. Notably, Virtual VA reflects that the RO recently granted service connection for chronic kidney disease as secondary to service-connected hypertension. The Board's decision on the claim for higher rating for service connected lumbar spine disability is set forth below. The claim for an increased rating for hypertension with hypertensive heart disease is addressed in the remand following the order; this matter is being remanded to the RO, via the AMC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the matter herein decided has been accomplished. 2. At no point pertinent to the March 2005 claim for increase has the Veteran's service-connected herniated nucleus pulposus, L4-S1, status post spinal fusion, been shown to result in unfavorable ankylosis of the thoracolumbar spine or entire spine ankylosis, or chronic, compensable, neurological. manifestations; the Veteran has the maximum rating assignable for incapacitating episodes of intervertebral disc syndrome (IVDS). 3. The schedular criteria are adequate to rate the lumbar spine disability under consideration at all pertinent points. CONCLUSION OF LAW The criteria for a rating greater than 60 percent for herniated nucleus pulposus, L4-S1, status post spinal fusion, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321. 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating IVDS on the Basis of Incapacitating Episodes (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In a claim for increase, the VCAA requires notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced DC under which the disability is rated). Here, the Veteran filed a claim for an increased rating in March 2005. An April 2005 RO letter advised the Veteran of the types of evidence needed to substantiate this claim which included describing his symptoms, their frequency and severity, and other involvement, extension and additional disablement caused by his disability. Additionally, the Veteran was advised of the respective duties upon himself and VA in obtaining evidence to substantiate the claim. A post-adjudicatory RO letter in June 2008 advised the Veteran how VA determines disability ratings and effective dates of awards. Any potential timing deficiency was cured with readjudication of the claim in the August 2012 SSOC. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). On review of the record, the Board finds that no prejudicial error has occurred pertaining to the VCAA notice provided to the Veteran as he has had a meaningful opportunity to participate effectively in the processing of this claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in the procurement of STRs and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and that no further RO action in this regard, prior to appellate consideration, is required. The RO has obtained the Veteran's STRs, relevant VA clinical records, and those private medical records which the Veteran has both identified and authorized VA to obtain on his behalf. The Board is unaware of any relevant records in the possession of the Social Security Administration. The Veteran has been afforded multiple VA examinations during the appeal period-the most recent of which was in November 2001. This examination report contains all findings necessary to decide this appeal. Notably, the criteria for a rating greater than 60 percent for herniated nucleus pulposus, L4-S1, status post spinal fusion, is very limited and the medical and lay evidence does not reflect a plausible basis for a higher rating still. The Board further notes that the Veteran has been awarded VA compensation based upon entitlement to a total disability rating based upon individual unemployability (TDIU) so there is no issue involving the extent of unemployability due to the lumbar spine disability. The Board is satisfied that the RO has substantially complied with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board in a prior remands dated August 2010 and September 2011, the RO secured additional VA treatment records, afforded the Veteran the opportunity to submit any additional evidence pertinent to the claims, arranged for the Veteran to undergo VA examination, and readjudicated the claim. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which evidence might be obtained, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the claimant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran contends that he is entitled to a rating greater than 60 percent for his service-connected herniated nucleus pulposus, L4-S1, status post spinal fusion. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The 60 percent disability rating for the Veteran's service-connected herniated nucleus pulposus, L4-S1, status post spinal fusion, has been assigned under former DC 5293 (IVDS) under the criteria in effect in 1989. This represented pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or the neurologic findings appropriate to site of diseased disc, little intermittent relief.. The Veteran filed his current increased rating claim on appeal in March 2005. Under the criteria for evaluating spine disabilities in effect since September 2003, IVDS is evaluated under the criteria of either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) provides for assignment of a rating of 10 percent for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The next higher rating of 40 percent is warranted for disability of the thoracolumbar spine either where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. The criteria are to be applied with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by disease or injury. 38 C.F.R. § 4.71a. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees each, are considered normal range of motion of the thoracolumbar spine. "Combined range of motion" refers to the sum of the ranges of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. Normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Under Note (1) of the General Rating Formula, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating. Under the Formula for Rating IVDS on the basis of Incapacitating Episodes (Formula for Rating IVDS), ratings are assigned on the basis of the quantity and duration of incapacitating episodes over a prior 12-month period. For purposes of evaluation under this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS, Notes 1 and 2. Under the Formula for Rating IVDS, a 10 percent rating requires incapacitating episodes having a total duration of at least one week, but less than 2 weeks, during the past 12 months. A 20 percent rating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Pertinent to matter of evaluation of neurological impairment, neuritis, cranial or peripheral, 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. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. In rating diseases of the peripheral nerves, the term "incomplete paralysis" 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. DC 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a, DC 8520. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. DC 8620 refers to neuritis of the sciatic nerve while DC 8720 refers to neuralgia of the sciatic nerve. Considering the pertinent evidence in light of the above, the Board finds that a rating in excess of 60 percent for the Veteran's lumbar spine disability is not warranted at any time pertinent to this appeal.. Historically, the Veteran underwent spinal fusion of L4-L5 in 1986. He subsequently developed bilateral radicular symptoms with a May 1987 computed tomography (CT) scan demonstrating degenerative disc disease at L4-5 with herniation of disc material. VA examination in February 1989 revealed bilateral L4 radiculopathies as well as a possible right L5 radiculopathy by electromyography (EMG) examination. By means of a rating decision dated June 1989, the RO granted service connection for herniated nucleus pulposus of L4-5, status post fusion, and assigned an initial 60 percent rating under DC 5293 then in effect. The Veteran filed his current claim for an increased rating in March 2005. The relevant evidence for the contemporaneous time period includes an April 2005 VA radiograph report which was significant for degenerative disc disease, ranging from mild to severe, from L2-3 to L5-S1 as well as a probable previous L4-5 fusion as indicated by a right-sided bone graft projecting over the transverse process. VA examination in April 2005 demonstrated painful lumbar flexion beginning at 30 degrees, but otherwise active motion in all planes. This finding would be compatible with the highest 40 percent rating under the General Rating Formula. However, the active range of thoracolumbar motion demonstrated on VA examinations in April 2005 and November 2011 as well as various clinical descriptions (e.g., the Veteran was described as capable of flexion to within 6 inches of the floor in March 2005) do not meet, or more nearly approximate, the criteria for "unfavorable ankylosis" under the General Rating Formula. According to Note 6, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Here, the Veteran has undergone surgical fixation of L4-L5 which, while limiting some movement of the spinal column, does not prevent movement of the "entire" thoracolumbar spine and, more importantly, does not result in "unfavorable ankylosis" of the entire thoracolumbar spine. As the highest rating has been awarded based upon motion loss, the provisions of 38 C.F.R. § 4.40 and 4.45 are inapplicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (consideration of 4.40 and 4.45 is unnecessary where an appellant is in receipt of the maximum rating for limitation of motion). Thus, under the General Rating Formula, the Veteran's orthopedic manifestations of lumbar spine IVDS would, at most, be rated as 40 percent disabling under the rating criteria currently in effect. Further, the credible lay and medical evidence demonstrates that the Veteran does not manifest any, chronic, compensable, neurological manifestations of thoracolumbar spine IVDS, Thus, a rating greater than the currently assigned 60 percent rating is not warranted by combining the ratings for the orthopedic and neurologic manifestations of thoracolumbar spine IVDS under 38 C.F.R. § 4.25. Pertinent to the March 2005 claim for increase, the Veteran has described transient symptoms in his lower extremities during exacerbations of back pain. For example, a March 2005 VA clinic record recorded the Veteran's description of having two flares of back pain in the last two months. His previous episode had lasted 4 days in duration. He described having a "knot" in his lower back with some lateral thigh numbness which varied from side-to-side depending upon the episode. He denied weakness, or changes in bowel or bladder. At that time, the Veteran appeared to be in pain with limitation of extension and right lateral bending. The Veteran could flex within 6 inches of the floor but with pain. Left patellar reflex was absent. There was 1+ right patellar reflex and 2+ Achilles reflex bilaterally. The Veteran described a similar history to a VA Compensation and Pension (C&P) examiner in April 2005. At this time, the Veteran described symptoms of lateral thigh numbness during flare-ups of back pain, which occurred 3 to 4 times per month, which usually lasted "for a couple of hours," then decreased to a tingling, and slowly resolved. The Veteran's neurological examination demonstrated normal reflexes and good coordination with tandem gait. Additionally, a November 2011 VA C&P examiner found no signs or symptoms of radiculopathy with muscle testing demonstrating normal strength in hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension; no muscle atrophy; normal knee and ankle reflexes; normal sensory examination of the upper anterior thigh (L2 dermatome), the thigh/knee (L3/4 dermatome), the lower leg and ankle (L4/L5/S1 dermatome), and the foot/toes (L5 dermatome); a negative straight leg raising test (a positive test being suggestive of radiculopathy); no radicular complaints; and no other neurological abnormalities such as bowel or bladder problems. Overall, the record reflects the Veteran's credible report of transient thigh numbness symptoms present during exacerbations of back pain which may occur 3 to 4 times per month. The March 2005 VA clinic record demonstrates that, during an exacerbation of back pain, the Veteran may demonstrate decreased reflexes. However, the Veteran has also credibly reported that his thigh numbness symptoms resolve after a short period of time and are not chronic in nature. Here, the credible evidence demonstrates that the Veteran experiences a slight and brief sensory and reflex disturbance during acute exacerbations of back pain only. He has no chronic sensory or motor disturbance, does not demonstrate signs of disuse such as atrophy, or other trophic changes. When considering the relatively minor and brief episodes of sensory and reflex disturbance in light of the absence of chronic radicular complaints and lack of any significant functional impairment, the Board finds that this disability picture does not meet, nor more nearly approximate, the criteria for a compensable rating for either lower extremity under DCs 8520, 8620 or 8720. Thus, the Veteran is not entitled to a rating greater than 60 percent under the General Rating Formula, to include Note 1, at any time pertinent to this appeal. The Veteran has credibly reported exacerbations of low back pain which render him incapacitated and unable to work. However, the currently assigned 60 percent rating is the maximum schedular rating which may be assigned for incapacitating episodes of IVDS under the Formula for Rating IVDS. Thus, no higher rating is assignable pursuant to the Formula for Rating IVDS on the basis of incapacitating episodes. For all the foregoing reasons, the Board finds a rating in excess f 60 percent for service-connected lumbar spine disability is not warranted under any potentially applicable rating criteria. In so holding, the Board has found the Veteran's report of symptomatology competent and credible evidence in support of his claim. Notably, the Veteran has not described unfavorable ankylosis of the thoracolumbar spine, and he has not described chronic neurological impairment of either lower extremity. The Board is aware that the Veteran experiences exacerbations of low back pain with transient symptoms of his upper thighs which has been considered in determining whether separate ratings could be warranted for chronic neurological manifestations of thoracolumbar spine IVDS. The Board is of the opinion that these minor and temporary symptoms do not support any assignment of "staged" ratings at any point pertinent to this appeal. See Hart, 21 Vet. App. at 509-10. Thus, there are no material facts in dispute and there is no further doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 . III. Other considerations To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extra-schedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. The Court stated that 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 extra-schedular consideration is not required, and the analysis stops. Id. 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 extra-schedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extra-schedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral 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). The Board finds that the schedular rating assigned for the Veteran's lumbar IVDS reasonably contemplates his symptomatology. Accordingly, the schedular criteria are adequate to evaluate the disability at all points pertinent to this appeal. In this respect, the Veteran reports chronic low back pain with recurrent exacerbations accompanied by transient numbness symptoms in his thighs. Here, the Veteran has been assigned a rating compatible with the maximum available rating for incapacitating episodes of IVDS. No higher rating is warranted if rated on the basis of limited motion, as no unfavorable ankylosis or entire spine ankylosis is shown (even with functional loss due to pain and other factors). Moreover, an alternative method of separately evaluating his chronic orthopedic and neurological manifestations has been considered, but, as explained, did not warrant a higher rating. The Board further notes that there has been no specific allegation by the Veteran or his representative that the applicable schedular criteria for rating the disability under consideration are inadequate . Accordingly, the fundamental requirement for invoking the procedures for assignment of an extra-schedular rating is not met. Finally, as for Veterans allegation of unemployability due his lumbar spine disability, in a May 2008 rating decision, the RO awarded a total disability rating based upon individual unemployability (TDIU), effective October 16, 2006, the last day he worked at the U.S. Postal Service. See VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) received in October 2006. The Board notes that, under certain circumstances, a claim for TDIU could be considered a component of a claim for increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009)). Here, the effective date of the award of a TDIU is after the date of the filing of the May 2005 claim for increase for the spine disability under consideration. However, as indicated the Veteran was working prior to the effective date of the award of service connection, and there is otherwise, no evidence or specific allegation that, pertinent to the claim for increase, and prior to the filing of the claim for a TDIU, the Veteran was otherwise rendered unemployable due to his service-connected lumbar spine disability. Hence, the matter of a TDIU due to the service-connected lumbar spine disability for the limited period under consideration need not be addressed. ORDER A rating greater than 60 percent for herniated nucleus pulposus, L4-S1, status post spinal fusion, is denied. REMAND The Veteran was initially awarded service connection for hypertension by means of a June 1989 RO rating decision, and awarded an initial 10 percent rating assigned based upon a history of diastolic pressures in excess of 100 under DC 7101. The Veteran filed his current claim for an increased rating in March 2005. An RO rating decision in June 2006 awarded a 30 percent rating for "HYPERTENSIVE HEART DISEASE (previously evaluated as hypertension with mild cardiomegaly)" under DC 7101-7007. A note to DC 7101 instructs VA raters to evaluate hypertension separately from hypertensive heart disease and other types of heart disease. 38 C.F.R. § 4.104, DC 7101, NOTE (3). In turn, the criteria for evaluating hypertensive heart disease under DC 7007 include an assessment of a veteran's workload capacity in terms of metabolic equivalents (METs). The Veteran's representative has asserted that the November 2011 VA examination is inadequate for rating purposes as it failed to evaluate the Veteran's workload capacity in terms of METs. As the Board agrees, the November 2011 examination report, therefore, must be returned as inadequate for rating purposes. See Barr v. Nicholson, 21. Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the appellant why one will not or cannot be provided). Therefore, the Veteran should be scheduled to undergo further examination to obtain all information needed to properly evaluate the claim remaining on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is hereby notified that failure to report to the scheduled examination without good cause, may well result in denial of the claim for increase. See 38 C.F.R. § 3.655(a), (b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that the record before the examiner(s) is complete, and that all due process requirements are met, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. As regards VA records, the claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in Pittsburgh, Pennsylvania since August 9, 2012 that are pertinent to the matter remaining on appeal. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Pittsburgh VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran since August 9, 2012, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Further, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide, or provide appropriate authorization to obtain, all outstanding, pertinent, private medical records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. The RO's adjudication of the claim should include consideration of whether the Veteran is entitled to separate ratings under Diagnostic Codes 7007 and 7107, as well as whether staged rating, pursuant to Hart (cited above) is appropriate. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Pittsburgh VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated since August 9, 2012. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to be examined by an appropriate physician to assess the severity of his hypertension and hypertensive heart disease. The entire claims file, to include a complete copy of this REMAND, and copies of any relevant records on Virtual VA (if the examiner does not have access) must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should provide assessments as to the blood pressure readings, impairment due to hypertensive heart disease measured in terms of metabolic equivalents (METs), and measurement of left ventricular function by echocardiogram. The examiner should set forth all examination findings and testing results, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim remaining on appeal. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the claim for increase, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate the claim in light of all pertinent evidence (to particularly include all evidence added to the claims file since the RO's last adjudication of the claims) and legal authority. The RO's adjudication of the remaining claim for higher rating should include consideration of whether the Veteran is entitled to separate ratings under DCs 7007 and 7101, as well as whether staged rating, pursuant to Hart (cited above), is warranted. 8. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes citation to and discussion of all additional legal authority considered, along with reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs