Citation Nr: 1320633 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 08-22 905A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating higher than 20 percent for degenerative disc disease (DDD) of the lumbar spine, postoperative laminectomy and fusion. 2. Entitlement to a compensable rating for hypertension. 3. Entitlement to an effective date earlier than January 24, 2012, for a higher 30 percent rating for chronic pansinusitis. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to December 2003. This appeal to the Board of Veterans' Appeals (Board) from a September 2007 rating decision in which, in pertinent part, the Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to increased ratings for a service-connected low back disability and for service-connected hypertension and granted an increased rating of 10 percent for service-connected chronic pansinusitis. Regarding the chronic pansinusitis claim, an increased rating that is less than the maximum benefit allowed does not constitute a full grant of the benefit sought so does not abrogate the appeal. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In December 2011 the Board remanded the claims for higher ratings for the chronic pansinusitis, low back disability and hypertension for further development and consideration. The remand of these claims to the RO was via the Appeals Management Center (AMC). There was compliance, certainly substantial compliance, with the Board's remand directives concerning these claims - including in terms of obtaining any outstanding evaluation or treatment records and having the Veteran reexamined to reassess the severity of these service-connected disabilities. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In a September 2012 decision since issued on remand, the AMC increased the rating for the chronic pansinusitis from 10 to 30 percent retroactively effective as of January 24, 2012, the date of the VA compensation examination the Veteran had had on remand concerning his claim for a higher rating for this disability. In an October 2012 written communication, he did not express a desire for an even higher rating for his service-connected chronic pansinusitis. He merely stated his disagreement with the effective date of this higher 30 percent rating and the desire for an earlier effective date. As he apparently is satisfied with the 30 percent rating now in effect for his chronic pansinusitis, the Board is not additionally considering whether he is entitled to an even greater rating for this disability. However, additional action on the part of the RO/AMC is necessary with respect to the matter of whether he is entitled to an effective date earlier than January 24, 2012, for the higher 30 percent rating for this disability. In October 2012, in response to the AMC's September 2012 decision, he filed a notice of disagreement (NOD) as to the effective date assigned for this higher rating, rather than as concerning this higher rating itself. According to Gallegos v. Gober, 14 Vet. App. 50 (2000), VA should liberally interpret a written communication that may constitute an NOD under the law, rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of 38 C.F.R. § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming the claimant desired appellate review, meeting the requirement of § 20.201 was not an onerous task). In making this determination, the Board also points out that the Court has held that "no procedural requirement in the adjudication of Veterans benefits is less burdensome than the NOD ... finding that a statement constitutes an NOD merely requires finding terms that can be reasonably construed as a desire for appellate review." Ortiz v. Shinseki, 23 Vet. App. 353, 358 (2010) (rev'd on other grounds by sub nom. Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011)). The AMC did not however provide him a statement of the case (SOC) on the issue of his purported entitlement to an effective date earlier than January 24, 2012, for the assignment of the higher 30 percent rating for his chronic pansinusitis. The appropriate disposition in this circumstance is to remand, rather than merely refer, this claim to provide him the required SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). He then will have opportunity, in response, to also file a Substantive Appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of this downstream claim to the Board. See 38 C.F.R. § 20.200 (2012) (an appeal to the Board consist of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed Substantive Appeal). The Board also sees the RO/AMC has not yet dealt with the matter of derivative entitlement to a TDIU. As it appears to have been raised by the record, the Board is remanding this derivative TDIU claim for further development consistent with the United States Court of Appeals for Veterans Claims (Court/CAVC) decision in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU as a result of that disability is warranted. See also Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (wherein the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a)). And as the Court also explained in Rice, supra, if the Board determines the derivative TDIU claim requires further development before being decided, the appropriate disposition is to remand the derivative TDIU claim. The Board therefore is also remanding this derivative TDIU claim to the RO via AMC. VA's Office of General Counsel has indicated, however, that remanding the derivative TDIU claim does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability forming the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). FINDINGS OF FACT 1. Before January 24, 2012, the service-connected degenerative disc disease of the lumbar spine, postoperative laminectomy and fusion, was manifested by forward flexion greater than 30 degrees but less than 60 degrees; but effectively since January 24, 2012, there has been greater limitation of motion as forward flexion of the thoracolumbar spine has been limited to 30 degrees or less, though not such that there is ankylosis, either favorable or unfavorable, of this segment or entire spine when additionally considering the adjacent cervical segment. 2. The Veteran's hypertension has not been manifested by diastolic blood pressure readings that are predominantly 100 or more or systolic pressures that are predominantly 160 or more. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's service-connected degenerative disc disease of the lumbar spine, postoperative laminectomy and fusion, have not been met before January 24, 2012; the criteria for entitlement to a disability evaluation of 40 percent, but no higher, for the Veteran's service-connected degenerative disc disease of the lumbar spine, postoperative laminectomy and fusion, have been met effective January 24, 2012. 38 U.S.C.A. §§ 1155, 5107 (West. 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5235-5243. 2. The criteria are not met, however, for a compensable rating for his hypertension. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.31, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided by the VCAA, VA has duties to notify and assist claimants in substantiating claims for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to these increased-rating claims being decided. The RO sent the Veteran a letter in May 2007 informing him of the requirements for establishing his entitlement to higher ratings for these disabilities. The letter advised him that VA uses a published schedule for rating disabilities (Rating Schedule) that identifies the relevant considerations and that evidence considered in determining the disability rating includes the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. Moreover, according to the U. S. Court of Appeals for the Federal Circuit, in a case as here involving a claim for an increased rating, the notice described in 38 U.S.C.A. § 5103(a) need not be Veteran specific or advise him that, to substantiate his claim, he must submit medical or lay evidence showing the effect any worsening in his disability has on his employment and daily life. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Rather, VA need only provide generic notice advising him of the evidentiary and legal criteria for establishing his entitlement to greater compensation. Id. Also in accordance with the requirements of VCAA, the letter informed him of the evidence and information he was responsible for obtaining versus the evidence that was considered VA's responsibility to obtain. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). He therefore has received all required notice concerning these claims. VA additionally has made reasonable efforts to assist him in obtaining evidence necessary to substantiate these claims. 38 U.S.C.A. § 5103A. To this end, VA has obtained his private and VA evaluation and treatment records. As well, he has been provided VA medical examinations allowing for proper evaluation of the ratings for these disabilities; VA afforded him examinations in June 2007 and January 2012. The VA examiners reviewed the treatment records, the history of his disabilities, and performed objective clinical evaluations. Conclusions reached and diagnoses given were consistent with the examination reports. For these reasons and bases, the Board finds that he has been afforded adequate examinations concerning these claims. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA is not obligated to provide him yet another examination merely because of the passage of time since an otherwise adequate examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Unless a claimant challenges the adequacy of an examination or opinion, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to him is required to fulfill VA's duty to assist him in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3 (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. As mentioned, all reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Degenerative Disc Disease (DDD) of the Lumbar Spine, Postoperative Laminectomy and Fusion The Veteran's service-connected degenerative disc disease of the lumbar spine, postoperative laminectomy and fusion has been rated 20-percent disabling by the RO under the provisions of Diagnostic Code 5243. 38 C.F.R. § 4.71a. With the possible exception of intervertebral disc syndrome (IVDS), disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provide as follows: 100% Unfavorable ankylosis of the entire spine; 50% Unfavorable ankylosis of the entire thoracolumbar spine; 40% Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 30% Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 20% Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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; 10% Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012) (unless 5243 is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes). The Formula for Rating IVDS Based on Incapacitating Episodes provides as follows: A 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. Note (1): For purposes of evaluations under Diagnostic Code 5243, 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 38 C.F.R. § 4.71a, Plate V (2012). On June 2007 VA spine examination, the Veteran reported low back pain and that he used medication to control the pain. There was intermittent numbness and tingling into the left lower extremity. The Veteran also reported fatigue, decreased motion, stiffness, weakness, spasms, and pain. The pain was moderate in nature and constant. The Veteran experienced weekly flare-ups that were severe in nature. These lasted a day or two and had no clear precipitating cause. The Veteran complained of "100 percent impairment" during flare-ups. However, according to the examiner, the Veteran had no incapacitating episodes related to the low back in the previous 12 months. The Veteran was able to walk less than one mile. The Veteran's posture was normal, and the back was symmetrical in appearance. His gait was normal. As to abnormal spinal curvatures, the examiner observed only lumbar flattening. There was no lumbar scoliosis, lumbar lordosis, reverse lordosis, list, kyphosis, or gibbus. There was no thoracolumbar spine ankylosis. Thoracolumbar spine range of motion was as follows: forward flexion from zero to 55 with pain at 55 degrees, extension was from zero to 10 degrees with pain at 10 degrees, bilateral lateral flexion was from zero to 15 degrees with pain at 15 degrees, and bilateral lateral rotation was from zero to 15 degrees with pain at 15 degrees. There was no additional loss of thoracolumbar spine range of motion with repetitive range of motion exercises. The Veteran indicated that he was employed on a full-time basis and indicated that he had been absent from work for a total of two weeks during the previous 12 months due to back and shoulder pain. Objective limitations due to the low back included decreased mobility, problems lifting and carrying, and lack of stamina. Chores were mildly impacted due to the service-connected low back disability. Exercise and sports were severely limited. However, other area of functioning such as recreation, shopping, traveling, feeding, bathing, dressing, toileting, and grooming were unaffected. A September 2008 VA physical therapy note indicated that the Veteran was experiencing lumbar stiffness, decreased range of motion, muscle tightness, and some radicular symptoms. On January 2012 VA spine examination, the examiner indicated a diagnosis of degenerative disc disease of the lumbar spine. The Veteran reported daily low back pain. The pain was constant and severe. The Veteran denied incapacitating flare-ups needing acute care or emergency room visits. The Veteran had flare-ups for three days every three weeks that required him to leave work early. Range of motion of the thoracolumbar spine was as follows: forward flexion from zero to 35 degrees with pain beginning at zero degrees, extension was from zero to five degrees with pain starting at zero degrees, bilateral lateral flexion was from zero to 10 degrees with pain beginning at zero degrees, and bilateral lateral rotation was from zero to 10 degrees with pain starting at zero degrees. Range of motion was the same after repetitive use testing. Symptoms such as pain on motion, weakened movement, and excess fatigability were noted. The Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. He did not use any assistive devices. According to the examiner, the Veteran's service-connected low back disability had an impact upon his ability to work due to increased absenteeism and the inability to perform heavy lifting. In an October 2012 written statement, the Veteran asserted that he suffered daily low back pain and that pain medications were no longer effective. He stated that the disability had an impact upon his job performance, as he could not stand or sit for long periods and that he used 130 hours of leave without pay as well as all of his sick and annual leave due to the service-connected low back disability. The Veteran stated further that bed rest was suggested for three days in June 2012 but that he was denied an additional request for prescribed bed rest. The physician refused to "give him an excuse" and suggested that the Veteran find a new job. Intervertebral disc syndrome is not apparent from the record. In any event, the Veteran's service-connected thoracolumbar spine disability cannot be considered under the provisions related to intervertebral disc syndrome, as incapacitating episodes as defined by the provisions related to intervertebral disc syndrome have not been shown, or only very minimally shown, during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). In any event, an evaluation in excess of 20 percent under Diagnostic Code 5243 as it pertains to intervertebral disc syndrome would require incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Such extensive bed rest prescribed by a physician is not apparent from the evidence, and consideration of the Veteran's service-connected low back disability under the provisions related to intervertebral disc syndrome would serve no useful purpose. The question that remains is whether an increased rating is warranted under the General Rating Formula for Diseases and Injuries of the Spine. The Veteran does not suffer from thoracolumbar spine ankylosis, either favorable or unfavorable. Thus, the only means by which an increased rating can be granted is if forward flexion of the thoracolumbar spine is to 30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Before January 2012, the forward flexion of the thoracolumbar spine was to 55 degrees with pain at 55 degrees - so not until at the terminal endpoint. Furthermore, no ankylosis of the thoracolumbar spine was shown, either favorable or unfavorable. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999) and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Note (5) to DCs 5235-5242 indicates that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar (thoracic and lumbar) spine, or the entire spine when considering all of these segments is fixed in flexion or extension. Fixation of a spinal segment in the neutral position (0 degrees) always represents favorable ankylosis. As such, the criteria for a 40 percent evaluation (or more) for the service-connected thoracolumbar spine disability are not met. Id. During the January 2012 VA spine examination, however, the Veteran had greater limitation of motion of his thoracolumbar spine as forward flexion was to only 35 degrees, indeed, with pain beginning at zero degrees. He therefore experienced the pain throughout his already limited range of motion. Symptoms such as flare-ups lasting several days at a time, weakened movement, excess fatigability, and pain on movement were also noted. The Board must consider evidence of pain, weakened movement, premature or excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use, including after prolonged, repetitive-type activity or during "flare ups". DeLuca v. Brown, 8 Vet. App. 202 (1995); Voyles v. Brown, 5 Vet. App. 451, 454 (1993). The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 direct VA to assign the minimum compensable rating for a joint where the joint is actually painful, unstable, or misaligned. This directive to assign a minimally compensable rating in the presence of pain applies to joint pain generally and is not limited to pain only associated with arthritis. See Burton v. Shinseki, 25 Vet. App. 1, 1-2 (2011). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. When evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id., at 37. In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id., at 36. When the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Board, therefore, finds that due to the fact that forward flexion during that January 2012 VA examination was only slightly greater than 30 degrees, and because the Veteran experienced pain even from the outset of his motion in this direction, so from 0 degrees, and considering the constellation of other symptoms he has complained about, his disability picture effectively as of January 24, 2012, the date of that VA compensation examination, more nearly approximates that required for a higher 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. As such a 40 percent rating for the service-connected thoracolumbar spine disability is granted effective January 24, 2012, the date of that VA examination showing this greater extent of disability. 38 C.F.R. § 4.7. Assigning this higher rating as of the date of that VA compensation examination amounts to a "staging" of the rating for this disability in compliance with the holding in Hart. According to Hart, the relevant temporal focus is on the state of this disability since the year immediately preceding the filing of the claim for a higher rating for this disability until VA makes a decision on the claim. See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In Harper v. Brown, 10 Vet App 125, 126 (1997), the Court discussed the three possible effective dates that may be assigned for a higher rating depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See, too, Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability or disabilities). Since it was not until the January 24, 2012 VA compensation examination that there was the required evidence of sufficient limitation of motion or other disability allowing for assignment of the higher 40 percent rating, that marks the effective date of this higher rating (in other words option (1) explained above referring to date entitlement arose). The Board observes that an evaluation higher than 40 percent is not warranted at any time during the appeal period, either prior to or since the date of that VA compensation examination, because such an evaluation would require thoracolumbar spine ankylosis (and, in fact, unfavorable not just favorable) from which the Veteran in any event does not suffer. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (5). He certainly then does not also have unfavorable ankylosis of his entire spine, that is, when additionally considering the adjacent cervical segment. Finally, in making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.3, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant an even more favorable decision. Hypertension The Veteran's service-connected hypertension has been rated zero percent disabling by the RO under the provisions of Diagnostic Code 7101. 38 C.F.R. § 4.104. Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a 0 percent evaluation, as in Diagnostic Code 7101, a 0 percent rating will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31. Diagnostic Code 7101 defines hypertension as diastolic blood pressure predominantly 90 or greater. Isolated systolic hypertension is defined as systolic blood pressure predominately 160 or greater with a diastolic blood pressure of less than 90. A 10 percent rating is warranted where diastolic pressure is predominantly 100 or more; systolic pressure is predominantly 160 or more; or where an individual has a history of diastolic pressure that is predominantly 100 or more which requires continuous medication for control. A 20 percent rating may be assigned with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Diastolic pressure of 120 or more is rated as 40 percent disabling, and a maximum 60 percent rating is warranted for diastolic pressure of 130 or more. 38 C.F.R. § 4.104 , Diagnostic Code 7101. On June 2007 VA medical examination, the Veteran indicated that other than on isolated occasions, his hypertension was controlled by medication, which he tolerated without difficulty. The course of the Veteran's hypertension was stable on medication, and medication was required in order to control the hypertension. On examination, the Veteran's blood pressure readings were 144/92, 137/89, and 152/106. In August 2007, the Veteran's blood pressure was 142/62. In July 2008, the blood pressure were 128/79, 143/87, and 140/90. That month, his blood pressure medication was increased. In November 2008, the Veteran's blood pressure was 142/92. In December 2008, the blood pressure reading was 135/80. In August 2009, blood pressure measured 146/90. In October 2009, the Veteran's blood pressure was 140/100 and was apparently attributed to failure to take the prescribed anti-hypertensive medication. In January 2010, the Veteran's blood pressure was 136/90. In March 2010, the Veteran's blood pressure measured 140/80. In May 2010, the Veteran's blood pressure measured 150/90. On January 2012 VA medical examination, the examiner indicated a diagnosis of hypertension. The Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. On examination, blood pressure readings were 140/91, 134/93, and 141/98. According to the examiner, the Veteran's hypertension had no impact upon the Veteran's ability to work. Based on the evidence, the Board finds that the Veteran's hypertension does not warrant a 10 percent rating under Diagnostic Code 7101. The evidence fails to indicate diastolic blood pressure readings of predominantly 100 or more or systolic blood pressure readings of predominantly 160 or more, as required for a 10 percent rating. The evidence instead shows diastolic blood pressure readings that are all below 100, with only one exception, and systolic blood pressure readings that are below 160. Therefore, although the Board is sympathetic to the Veteran's claim and is mindful that he consistently takes medication to control his hypertension, a 10 percent rating is not warranted because diastolic pressures of predominantly 100 or more or systolic pressures of predominantly 160 or more have not been shown by the evidence. 38 C.F.R. § 4.104, Diagnostic Code 7101. Finally, in making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Extraschedular Consideration In adjudicating these increased-rating claims, the potential application of the various other provisions of Title 38 of the Code of Federal Regulations also have been considered, including 38 C.F.R. § 3.321(b)(1) (2012), which provides procedures for referral or assignment of an extraschedular evaluation. Schafrath, 1 Vet. App. at 593. The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1) (2012). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 38 C.F.R. § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. Before discussing further entitlement to an extraschedular evaluation, the Board notes that it has considered Mittleider v. West, 11 Vet. App. 181 (1998) and has attributed all potentially service-connected symptoms to one service-connected condition or another. The Board finds that the schedular rating criteria contemplate the Veteran's service-connected thoracolumbar spine disability, also his hypertension. The service-connected thoracolumbar spine disability rating criteria specifically provide for ratings based on the presence of painful arthritis, limitation of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca), and incapacitating episodes. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). In this case, the problems reported by the Veteran (limitation of motion, pain on standing and sitting, and not being able to lift heavy objects) are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with his service-connected thoracolumbar spine disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has equally compared the level of severity and symptomatology of his service-connected hypertension with the established criteria found in the rating schedule. As discussed in detail previously, his symptomatology, to include predominant systolic and diastolic pressures, is fully addressed by the rating criteria under which this disability is rated. There are no additional symptoms of hypertension that are not addressed by the rating schedule. Therefore, the Board finds that rating criteria reasonably describes his disability level and symptomatology for his service-connected hypertension. As such, the Board finds that the rating schedule is adequate to evaluate his disability picture. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Bagwell, 9 Vet. App. at 338-39; Floyd, 9 Vet. App. at 96. ORDER An evaluation higher than 20 percent for the service-connected degenerative disc disease of the lumbar spine, postoperative laminectomy and fusion, is denied for the period before January 24, 2012; however, a higher 40 percent rating is granted for this low back disability as of January 24, 2012, subject to the statutes and regulations governing the payment of Veterans' benefits. A compensable rating for the service-connected hypertension, however, is denied. REMAND In Rice, the Court held that a TDIU claim is part of an increased-rating claim when such claim is raised by the record. In this case, the Veteran reported extensive absenteeism, including unpaid leave, because of his service-connected low back disability. As such, the issue of entitlement to a TDIU is raised by the record. But this derivative claim needs to be further developed before being decided. The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The record confirms the Veteran has been taking extensive leave from his job, both paid and unpaid, reportedly due to his service-connected low back disability. While he has been afforded VA medical examinations for compensation purposes, an opinion as to his employability and the effect of his service-connected disabilities on this has not been rendered. As the Court pointed out in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be substantially gainful and not just marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). The Board resultantly finds that the Veteran should be afforded an appropriate VA compensation examination to determine whether he is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities, including especially on account of his low back disability (although the aggregate effect of all must be considered). In addition, he has not received any VCAA notice or other assistance regarding this derivative TDIU claim, so this, too, is warranted before deciding this claim. The claims file contains VA clinical records dated until August 1, 2012. VA clinical records dated after August 1, 2012 should be associated with the claims file. See 38 C.F.R. § 3.159(c)(2); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). As also already alluded to, in September 2012, following and as a result of the Board's prior remand, the AMC assigned a higher 30 percent rating for the Veteran's service-connected chronic pansinusitis - retroactively effective from January 24, 2012, the date of the additional VA compensation examination he had had on remand concerning this disability. In response he filed a timely NOD as specifically concerning the effective date of the increase, alleging it should be earlier, but the AMC failed to provide him an SOC regarding this downstream claim. When there has been an initial RO adjudication of a claim and an NOD as to its denial, the claimant is entitled to an SOC, and the failure to issue same is a procedural defect. Manlincon, 12 Vet. App. at 240-41. Pursuant to 38 C.F.R. § 19.9(a) (2012), if further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision, the Board is required to remand (rather than merely refer) the claim to the RO/AMC for necessary action. Therefore, the Board must remand this matter for the preparation of an SOC regarding the issue of entitlement to an effective date earlier than January 24, 2012, for the assignment of the higher 30 percent rating for the service-connected chronic pansinusitis. VAOPGCPREC 16-92 (July 24, 1992). Accordingly, these claims are REMANDED for the following action: 1. Send the Veteran a VCAA notice letter that pertains expressly to claims of entitlement to a TDIU. 2. Associate with the claims file all VA clinical records dated from August 1, 2012 to the present. 3. Schedule a VA medical examination for an opinion regarding the likelihood (very likely, as likely as not, or unlikely) that the Veteran's service-connected disabilities, alone, prevent him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison, when also considering his level of education and prior work experience and training, but not his advancing age or impairment attributable to disabilities that are not service connected. Note: The term "as likely as not" does not mean merely within the realm of medical possibility, but instead that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must review all pertinent documents in the claims file in conjunction with the examination, including a complete copy of this decision and remand, and indicate in the examination report whether the requested review took place. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 4. Provide the Veteran an SOC concerning the issue of whether he is entitled to an effective date earlier than January 24, 2012, for the higher 30 percent rating for his service-connected chronic pansinusitis. Also advise him that he will need to file a timely Substantive Appeal (VA Form 9 or equivalent) in response to this SOC to complete the steps necessary to perfect his appeal of this additional claim to the Board. 38 C.F.R. §§ 20.200, 20.302(b) (2012). Only if he perfects his appeal of this downstream claim should it be returned to the Board for further appellate consideration. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs