Citation Nr: 1319127 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-38 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for spondylosis, lumbar spine, evaluated as 10 percent disabling prior to March 30, 2012, and as 20 percent disabling on and after March 30, 2012. 2. Entitlement to an increased rating for spondylosis, cervical spine, evaluated as 10 percent disabling prior to March 30, 2012, and as 20 percent disabling on and after March 30, 2012. 3. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from April 1969 through August 1989. These matters come to the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2010 the Veteran provided testimony at the RO before the undersigned Veterans Law Judge (VLJ), and a transcript of that hearing is of record. In March 2011, the Board remanded this issue for further development. As will be discussed below the Board finds the requested development has been completed and there is no prejudice for the Board to proceed with adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The issue of 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. The weight of the evidence of record does not establish the Veteran had forward flexion of the lumbar spine between 30 and 60 degrees or combined range of motion of the thoracolumbar spine limited to 120 degrees or less at any point prior to March 2012. 2. The weight of the evidence of record does not establish the Veteran had forward flexion of the cervical spine between 15 and 30 degrees or combined range of motion of the cervical spine limited to 170 degrees or less at any point prior to March 2012. 3. The weight of the evidence of record does not establish the Veteran had forward flexion of the lumbar spine limited to 30 degrees or less or ankylosis of the lumbar spine at any point during the period on appeal. 4. The weight of the evidence of record does not establish the Veteran had forward flexion of the cervical spine limited to 15 degrees or less or favorable ankylosis of the cervical spine at any point during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent disabling prior to March 30, 2012, and in excess of 20 percent disabling on and after March 30, 2012, for the Veteran's lumbar spine condition have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, and 4.71a Diagnostic Code 5240 (2012). 2. The criteria for a rating in excess of 10 percent disabling prior to March 30, 2012, and in excess of 20 percent disabling on and after March 30, 2012, for the Veteran's cervical spine condition have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, and 4.71a Diagnostic Code 5240 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is seeking an increased rating for his service connected cervical and lumbar spine conditions. The Veteran was initially assigned a 10 percent rating for each condition based on limitation of motion, and during this appeal was granted a rating of 20 percent for each condition, effective March 2012. The Veteran's back conditions are currently rated under Diagnostic Code 5240, for ankylosing spondylitis (AS). Note 6 before this code provides that disabilities of the thoraclumbar and cervical spine segments will be separately rated under this code. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for a lower back disability when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; when combined range of motion of the cervical spine is not greater than 170 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned when forward flexion of the cervical spine is 15 degrees or less; or favorable ankylosis of the entire cervical spine is present. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; and a rating in excess of 40 percent is not available unless either ankylosis or a fractured spine is present. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Veteran filed his current claim in March 2007. As such, all evidence from a year prior to the claim has been reviewed and considered. Relevant evidence is summarized below. The Board will first discuss whether the Veteran is entitled to a rating in excess of 10 percent based on limitation of motion prior to March 2012, second a rating in excess of 20 percent after March 2012, and then finally discuss whether the Veteran is entitled to an increased rating under any other applicable Diagnostic Code. Limitation of Motion Prior to March 2012 In February 2007 the Veteran began physical therapy for his thoracic and lumbosacral regions of his back. The physical therapist opined the Veteran had sacroilitis, allergic rhinitis, and acute rheumatic arthritis. In April 2007 the Veteran reported moist hot packs helped relieve his symptoms, but he continued to have low back pain. The physical therapist described the Veteran had a swayback posture which caused his center of gravity to be shifted significantly posterior of the hip joint. The physical therapist gave the Veteran exercises to correct his posture. In March 2007 a VA rheumatologist opined the Veteran had definite AS. The physician explained the Veteran had one radiologic criterion, right saroilitis, and one clinical criterion, low back pain and stiffness with duration of more than three months. The Veteran described his low back pain improved with exercise but was not relieved with rest. In April 2007 the Veteran was provided with a VA examination. The examiner was not able to review the Veteran's claims file, but reviewed his VA treatment records and his report reflects a good understanding of the Veteran's medical background. The Veteran reported recurrent flare ups of neck pain with rare episodes of pain radiating into either or both arms. The Veteran could not note any particular aggravating factors for these flare ups. He also reported frequent flare ups of low back pain, which generally occurred on a daily basis. He described his low back pain was bothered by bending, prolonged sitting, or long car rides. The Veteran reported his pain occasionally radiated into his legs. The Veteran also reported urinary frequency, but denied loss of bladder or bowel control. The Veteran stated he had not worked in the last two to three years due to his neck and back problems. He reported before this time he worked part-time doing lawn maintenance. Range of motion testing was performed and revealed right lateral rotation to 50 degrees, left lateral rotation to 40 degrees, flexion to 50 degrees, extension to 30 degrees, right lateral flexion to 15 degrees, and left lateral flexion to 10 degrees. The examiner noted minimal pain on motion. Repetitive range of motion testing was also performed and revealed flexion to 75 degrees, extension to 30 degrees, right lateral bending to 30 degrees, left lateral bending to 25 degrees, and 25 degrees of right and left lateral rotation. The examiner noted increased back pain on repetitive range of motion testing, but no additional limitation of motion. Neurological evaluation revealed no focal strength deficits of the upper or lower extremities, reflexes and sensation were intact in all four extremities, and straight leg test was negative for radicular pain. The examiner then reviewed an X-ray from January 2007 and opined the x-ray revealed spurring along the lumbar spine. The examiner opined the Veteran had cervical spondylosis, osteoarthritis of the thoracic spine, and lumbar spondylosis. In May 2008 the Veteran again began physical therapy for his back condition. The Veteran reported constant aching pain in his mid back. However, the physical therapist noted the Veteran still had spinal mobility within functional limits. The Veteran reported his back felt better after treatment. The records reflect the Veteran continued physical therapy throughout June and July of 2008. In an August 2008 physical therapy session the Veteran reported he felt good after each physical therapy session, however a day or two later his pain would return to the same level, around 6 out of 10. The Veteran primarily complained of stiffness in his back in the mornings. The physical therapist noted the Veteran remained independent and functional, with no difficulty dressing or feeding, although the Veteran did experience limitations from some movements which required twisting of his back to reach something. The physical therapist noted mild kyphosis in the thoracic region, but the Veteran otherwise maintained an erect posture. He opined the Veteran's range of motion was within normal limits on all extremities and within functional limits of the spine. The therapist opined the Veteran had maintained the same mobility and flexibility since he began physical therapy and had now plateaued. The therapist opined the Veteran was ready for discharge. Also in August 2008 the Veteran was provided with an additional VA examination. The examiner noted the Veteran was unclear about his specific diagnosis, explaining instead "arthritis that affects my immune system." The Veteran described constant non-specific pain in his neck and upper shoulders bilaterally as well as his low back. The Veteran denied bowel or bladder dysfunction, stiffness, fatigue, lack of endurance, weakness, parasthesias, or dysethesias. The examiner noted the Veteran's posture and gait were normal. He observed the Veteran's neck and back were without gross deformity or apparent scoliosis, although mild cervical and lumbar flattening was noted. Range of motion testing was performed on the cervical spine and revealed flexion to 40 degrees, extension to 40 degrees, right and left lateral flexion to 30 degrees each, and right and left lateral rotation to 60 degrees each. The examiner noted the Veteran did not complain of low back discomfort during cervical spine range of motion. X-ray of the cervical spine revealed spurring but no significant interval change. The examiner opined the Veteran had thoracic AS with no significant internal change. Range of motion testing was then performed on the thoracolumbar spine and revealed forward flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 25 degrees each, and right and left lateral rotation to 25 degrees each. X-ray of the thoracic spine found findings consistent with diffuse idiopathic skeletal hyperostosis, and x-ray of the lumbar spine revealed mild spurring. Straight leg raise testing was negative. The examiner noted no objective findings of radiculopathy. The examiner opined the Veteran had cervical and lumbar spondylosis with no significant interval change. The Board finds the results of this examination reflect the Veteran was only entitled to a 10 percent rating for limitation of motion of each his cervical and lumbar spine conditions at the time of this examination. Forward flexion of the cervical spine was 40 degrees, forward flexion of the thoracolumbar spine was 90 degrees, the combined range of motion of the cervical spine was 260 degrees, and the combined range of motion of the thoracolumbar spine was 220 degrees. All of these ratings exceeded the range of motion contemplated by a 20 percent rating, as discussed above. As such, the Board finds a 10 percent rating for each the cervical and thoracolumbar spinal regions was appropriate at that time. In April 2009 the Veteran returned to a VA rheumatologist. He reported three to four arthritis attacks relieved by Naproxen since his last appointment. The Veteran reported he was returning to the Philippines for six months; the physician noted they would be unable to continue his current medication while he was out of the country for that prolonged period. In July 2009 the Veteran sought treatment for intermittent back pains he described as aching with severity of 7 out of 10. The physician suggested AS and scheduled the Veteran for a rheumatology consultation. In December 2009 the Veteran reported chronic low back pain of 7 out of 10. The Veteran reported limitation of motion and grip weakness during flare ups, which had occurred more frequently since September 2009. The physician noted the Veteran was diagnosed with AS and was prescribed medication. VA radiologist reviewing the x-ray found marked spur formation in cervical spine with normal cervical lordosis. He opined the Veteran had spondylosis deformans. In April 2010 the Veteran reported "constant tolerable" back pain, as well as right shoulder, elbow, and knee pains. The physician opined the Veteran had osteoarthritis of the lumbar spine and ordered an x-ray. The VA radiologist reviewing the x-ray opined the Veteran had spondylosis deformans. The physician opined no signs of AS were noted. In July 2010 the Veteran testified before the undersigned VLJ. The Veteran described he had an immunosuppressive skin rash, lupus, arthritis, and his back conditions. The Veteran reported all these conditions fed off one another and in turn aggravated his lumbar and cervical spine. The Veteran reported his back condition was worse since his initial evaluation for 10 percent. He also reported experiencing temporary trembling in his hands during back spasms that sometimes lasted five minutes. He also described pain in his knees and shoulders. The Veteran reported that without medication his pain would be a 9 out of 10. In October 2010 the Veteran reported to a VA rheumatology consult. The Veteran described thoracic spine and lower back pains and tenderness. The physician assessed the Veteran had osteoarthritis of the cervical and lumbosacral spine, but suggested he be considered for AS and lupus. X-ray revealed spurs along anterior and lateral margins of thoracic spine, and the radiologist diagnosed thoracic spondylosis as well as arthritic changes in the right sacroiliac joint. As such, the Board finds the evidence of record since the Veteran's August 2008 range of motion testing suggested he experienced increased flare-ups of pain. However, as discussed above the results from the most recent range of motion testing reflected the Veteran's back condition warranted a 10 percent rating for limitation of motion for both his cervical and lumbar spines through this time period. As such, the Board finds a 10 percent schedular rating was appropriate. Limitation of Motion after March 2012 In March 2012 the Veteran was provided with a VA examination. The examiner reviewed the Veteran's claims file, as well as personally interviewed and examined the Veteran. The examiner noted the Veteran's medical record reflected consideration of hemochromotosis and gout, although no definitive diagnosis had been determined. The examiner noted the Veteran had been diagnosed with AS of the thoracolumbar spine in 2007 and spondylosis in 2010. However, the examiner opined the x-ray evidence was not typical of AS. He noted x-rays showed extensive hypertrophic spondylitic spurs throughout the spine, most extensively in the thoracic area. The examiner noted the Veteran complained of constitutional symptoms including fatigue, general malaise, and loss of appetite without weight loss. The examiner opined that although the Veteran was retired, his constitutional symptoms were incompatible with keeping a rigid work schedule; however they were short of incapacitating. The examiner also noted the Veteran could not lift more than 20 pounds occasionally, and could not stand or walk more than 4 hours in an 8 hour work day. The examiner first addressed the Veteran's thoracolumbar spine. The Veteran reported flare-ups that impacted the function of his thoracolumbar spine. The examiner then performed range of motion testing on this region. The Veteran demonstrated forward flexion to 60 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. The examiner noted each of these ranges was performed without objective evidence of painful motion. The Veteran was also able to perform repetitive use testing with no additional loss of range of motion. However, the examiner noted that although forward flexion was to 60 degrees, the Veteran's flexion was more abnormal than apparent. The modified Schober test showed only 1.5cm linear increase of 15 cm lumbar segment upon flexion. The examiner explained this indicated most of the Veteran's forward flexion was occurring at the hips, without mobility of individual lumbar vertebrae. The examiner opined this suggested the Veteran's lumbar spine was essentially rigid. The examiner opined the Veteran's functional loss of the thoracolumbar spine included less movement than normal, weakened movement, excess fatigability, and pain on movement. The examiner noted the Veteran did not have localized tenderness of the thoracolumbar spine. The Veteran did demonstrate guarding and/or muscle spasm, but this did not result in abnormal gait or spinal contour. The examiner then addressed the Veteran's cervical spine. The Veteran reported flare-ups that impacted the function of his cervical spine. Range of motion testing was performed and revealed forward flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 25 degrees. The examiner noted each range of motion was performed without objective evidence of painful motion. Additional range of testing was performed after repetitive use testing and did not reveal any additional limitation of motion. The examiner opined the Veteran's functional loss of the cervical spine included less movement than normal, weakened movement, and excess fatigability. The examiner also noted localized tenderness of the cervical spine. The Veteran also exhibited guarding or muscle spasm of this region, but did not result in abnormal gait or spinal contour. Additionally, the examiner noted muscle strength, reflexes, and sensory testing were all normal. Straight leg raising test was also negative. The examiner opined the Veteran did not have any symptoms of radiculopathy, intervertebral disc syndrome, or any other neurologic abnormalities related to the spine. In summary, the examiner opined the Veteran's posture appeared typical of someone with spondylosis or AS. That is, the Veteran stood with forward leaning torso, secondary to 25 degree left hip flexion contracture, and was developing a head forward posture. The examiner noted these structural findings did not distinguish which disorder the Veteran had. The examiner indicated future lab testing and rheumatology evaluation would be performed. The Board finds the results from the range of motion testing at this VA examination reflects the Veteran's condition had increased in severity and he now merited a 20 percent rating for both his lumbar and cervical spine conditions for the first time during the period on appeal. Forward flexion of the thoracolumbar and cervical spine, as well as combined range of motion of the thoracolumbar and cervical spine all equated to the range of motion contemplated by a 20 percent rating under the diagnostic code. As such, the Board finds the Veteran merited a 20 percent rating at this time. The Board has also considered the examiner's comments that the Veteran's forward flexion of the thoracolumbar spine occurred at his hips more than his back, suggesting the Veteran's lumbar spine was rigid. However, the General Rating Formula for Diseases and Injuries of the Spine provides that schedular ratings shall be determined based on limitation of motion with or without symptoms of stiffness. 38 C.F.R. § 4.71a. The Board finds that despite the stiffness in the Veteran's lumbar spine, he still had forward flexion in his thoracolumbar spine to 60 degrees. As such, the Board finds this range of forward flexion merits a 20 percent rating for his lumbar spine condition under the schedular criteria. In July 2012 the Veteran was provided with an additional VA examination by a rheumatologist. The examiner reviewed the Veteran's claims file and noted he was diagnosed with AS by a VA rheumatologist in approximately 2006. The Veteran had tried several treatments over the years, but currently received the best relief with Neoprasyn and Tramadol twice daily. The examiner noted recent x-rays of the complete spine demonstrate contiguous AS, especially of the thoracic spine, as well as degenerative changes of the lumbar spine. Upon examination the examiner noted mild tenderness around the thoracic and lumbar spine, as well as reduced range of motion. The examiner also noted reduced lumbar lordosis and reduced thoracic kyphosis. The examiner opined the Veteran had AS, but noted his condition was "likely burned out." The examiner recommended multivitamin tablets to promote nutrition to help with the Veteran's generalized symptoms. In October 2012 the Veteran had a follow-up with the VA rheumatology department. The physician noted the Veteran did well on his current medication. He opined the Veteran's features of AS were clinically stable. In January 2013 the Veteran reported intermittent left middle to low back pain, near his kidney, for the past two weeks. The physician noted these symptoms were not consistent with his AS. The physician opined his pain may be due to kidney stones, diverticulitis, or sprain of his back. Veteran was reminded of the importance of maintaining good posture in relation to his AS. The Board finds the evidence of record does not establish the Veteran warranted an increased rating based on limitation of motion of his spine. The results of the most recent range of motion testing, from the March 2012 VA examination, do not establish the Veteran warranted a higher 30 or 40 percent rating under the schedular criteria. A 30 percent rating based on limitation of motion is not warranted unless forward flexion of the cervical spine is limited to 15 degrees or less, or favorable ankylosis is present in cervical spine. A 40 percent rating is not warranted unless forward flexion of the thoracolumbar spine is limited to 30 degrees or less or ankylosis is present in the entire thoracolumbar spine. The results of the March 2012 range of motion testing reflect the Veteran maintained forward flexion in the cervical and thoracolumbar sections of the spine in excess of 15 and 30 degrees respectively. Additionally neither favorable nor unfavorable ankylosis was noted. As such, the Board finds the Veteran's condition did not warrant a rating in excess of 20 percent based on limitation of motion at any point during the period on appeal. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of 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. 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. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the Board notes the VA examiners in April 2007 and May 2012 each specifically performed additional range of motion testing after repetitive use of the spine. Each examiner noted the Veteran did not experience an additional loss of range of motion during testing after repetitive use. As such, the Board finds the VA examinations of record explicitly considered the DeLuca factors and determined the Veteran did not experience any additional functional loss due to repetitive motion. As such, a higher disability evaluation is not warranted based on functional loss after repetitive use. Other Diagnostic Codes The Board notes other diagnostic codes may apply to disabilities of the back. Note 1 following the General Rating Formula for Disease and Injuries of the Spine states that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. However, the Board finds the evidence of record does not establish the Veteran experienced separate neurological abnormalities. In the VA examination from March 2012 the examiner specifically noted the Veteran's muscle strength, reflexes, and sensory responses were all normal. In addition straight leg raising test was negative, and the examiner opined the Veteran did not exhibit any symptom of radiculopathy or any other neurologic abnormalities. The Board notes the record does reflect the Veteran reported increased urinary frequency, but he consistently denied experiencing loss of urinary control, including at his August 2008 VA examination. Therefore, the Board finds the evidence of record does not establish the Veteran had a separate neurologic condition requiring a separate rating at any point during the period on appeal. The schedular criteria also provides that back disabilities can be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes if it results in a higher evaluation than the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. In order to warrant a rating for IVDS the schedular criteria requires intervertebral disc syndrome conditions which cause incapacitating episodes, defined as is 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. 38 C.F.R. § 4.71a, DC 5243, Note (1). However, the Board finds the medical evidence of record does not establish the Veteran experienced any incapacitating episodes requiring bed rest prescribed by a physician at any point during the period on appeal. Additionally, in March 2012 the VA examination specifically noted the Veteran did not exhibit any symptoms of intervertebral disc syndrome. As such, the Board finds a rating under this formula is not warranted. In addition, the Board notes that AS is a systemic disease that may include symptoms not related to the joints, such as fever, fatigue, and decreased appetite. Therefore, the Board notes that it may be more appropriate to rate such a condition under Diagnostic Code 5002, as analogous to rheumatoid arthritis. The Board notes the medical evidence of record reflects the Veteran has experienced some of these related symptoms, to include fatigue, general malaise, and loss of appetite without weight loss, as noted by the March 2012 VA examiner. As such, a rating under this diagnostic code has been considered. However, as will be discussed, the Board finds the Veteran is not entitled to a rating is excess of his current rating under this code, and as such recharacterization of his current impairments is not in the Veteran's best interest. Diagnostic Code 5002 provides that rheumatoid arthritis as an active process will be assigned a 20 percent rating if the Veteran experiences one or two exacerbations in a year in a well-established diagnosis and a 40 percent rating if symptoms combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. 38 C.F.R. § 4.71a. The Board finds the medical evidence of record does establish the Veteran experienced arthritic attacks during the period on appeal. Additionally, the March 2012 examiner noted the Veteran's constitutional symptoms, including fatigue, general malaise, and loss of appetite, were incompatible with keeping a rigid work schedule. However, the Board does not find this evidence establishes the Veteran experienced symptom combinations which produced a definite impairment of health. The Board notes throughout the period on appeal the Veteran's treatment of AS primarily focused on the Veteran's pain and stiffness, and other impairment on his health were not regularly noted. In addition the Veteran himself complained primarily of pain and stiffness in his back, not of related symptoms. As such, the Board finds the Veteran would be entitled to only a 20 percent rating for his whole back under this Diagnostic Code 5002, at best. However, as discussed above, the Veteran initially received 10 percent ratings and currently receives a 20 percent rating for his cervical spine and 20 percent rating for his lumbar spine under Diagnostic Code 5240. Therefore, the Board finds Diagnostic Code 5240 results in a higher rating for the Veteran, and his condition will not be rated under Diagnostic Code 5002. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises 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 veteran 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 veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran'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 veteran's disability level and symptomatology, a determination must be made whether the veteran'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 symptoms were pain and stiffness, which were both specifically contemplated in the schedular rating that was assigned. As such, the Board believes that the schedular rating criteria adequately describe the Veteran's disability picture and even if it does not, 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. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in March 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records have been obtained, as have service treatment records. The Veteran has not indicated he received any private treatment for his back condition. Additionally, the Veteran was provided with a hearing before the undersigned VLJ. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the July 2010 Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed back conditions, specifically regarding his alleged increase in severity. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim, and specifically inquired as to treatment records at other VA facilities. All identified VA treatment records were located and associated with the claims file. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. In addition the requested development after remand has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was provided with a VA examination with a medical doctor in the rheumatology department (the report of which has been associated with the claims file). In addition treatment records from the VA medical facilities in Pensacola, Biloxi, and Manila were located and associated with the claims file. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claims for increased ratings are denied. REMAND The Board finds that an inferred claim for TDIU has been raised based on the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). For example, in his April 2007 VA examination the Veteran reported he previously worked part-time doing lawn maintenance, but this work bothered his neck and back conditions and he had to quit. He reported that he had not been able to work for several years at that time due to his neck and back problems. As such, the Board finds an inferred claim for TDIU has been raised. Under VA regulations a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. In this case, the Veteran is currently rated with a 50 percent impairment based on depressive reaction, and a 20 percent rating for spondylosis of each the lumbar and cervical segments of the spine, as discussed above. As such, the Veteran has a single disability ratable in excess of 40 percent, and has a combined disability rating of 70 percent. As such, the Veteran meets the standard for TDIU under 38 C.F.R. § 4.16(a) if the VA determines he is unable to secure or follow substantially gainful occupation as a result of his service-connected disabilities. As discussed above, the record contains some evidence that the Veteran may be unable to secure or follow substantially gainful employment as a result of his service connected back condition, including his own lay testimony. In addition, the March 2012 VA examiner found the constitutional symptoms associated with the Veteran's AS were incompatible with keeping a rigid work schedule. However, the Board finds this evidence alone does not establish the Veteran is unable to secure or follow any substantially gainful employment. The Board also notes that none of the evidence of record addresses whether the Veteran is able to secure substantially gainful employment as a result of the combination of all his service connected disabilities, including depressive reaction and spondylosis of the lumbar and cervical spine. As such, the Board finds remand is required for a medical opinion to address whether the Veteran is unable to secure gainful employment based only on his service connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Obtain a medical opinion from the appropriate expert(s) regarding the occupational impairment due to the Veteran's service-connected depressive reaction and spondylosis of the lumbar and cervical spinal segments. If such an opinion cannot be reached without an examination, schedule the Veteran for the appropriate examination. The record establishes the Veteran frequently travels out of the country to visit his family in the Philippines. As such, if the RO/AMC determines an examination is required, please schedule the examination further out than would normally be done, to allow the Veteran additional time to return to Florida if he is traveling. 2. Then, readjudicate the claim. If the claim remains denied, provide the Veteran such a supplemental statement of the case and provide an appropriate period of time to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs