Citation Nr: 1321734 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 07-26 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a higher evaluation for degenerative disease of the spine (previously diagnosed as herniated disc, L5-S1), initially rated at 10 percent from September 1, 2006 to July 5, 2011, then at 20 percent from July 6, 2011 onwards. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to September 1986, and from February 1988 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection and a 10 percent rating for herniated disc L5-S1, effective September 1, 2006. The Veteran appealed therefrom as to the initial assigned disability evaluation. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). Thereafter, during pendency of the appeal, jurisdiction was transferred to the RO in St. Paul, Minnesota. However, the Veteran has now moved back to Florida. The Board remanded the claim in May 2011 for evidentiary development, primarily, for a more contemporaneous VA Compensation and Pension examination, which was duly completed. A March 2012 RO rating decision thereby increased to 20 percent the evaluation for the Veteran's back disorder (recharacterized as degenerative disease of the spine), effective July 6, 2011 based upon the information obtained from the examination. The Veteran's appeal for a still higher evaluation remains for adjudication. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). The Veteran's representative, through its June 2013 Informal Hearing Presentation, alleges the Veteran has diminished capacity or even incapacity to work due to the service-connected back disability. This TDIU claim is found to be a component of the increased rating claim for a back disorder. Thus, the Board assumes jurisdiction over the TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board is deciding the claim for increased evaluation for a back disorder. The remaining issue of a 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. VA will notify the Veteran if further action is required on his part concerning this matter. FINDINGS OF FACT 1. From the September 1, 2006 effective date of service connection up until July 5, 2011, the Veteran's lower back disorder was manifested by forward flexion of the thoracolumbar spine at or less than 60 degrees, when taking into account functional loss due to pain. 2. At no point throughout has the Veteran experienced thoracolumbar forward flexion of 40 degrees or less, or incapacitating episodes of Intervertebral Disc Syndrome (IVDS). CONCLUSIONS OF LAW 1. The criteria are met to establish a 20 percent initial rating for degenerative disease of the spine (previously diagnosed as herniated disc, L5-S1), from September 1, 2006 to July 5, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Codes 5242, 5243 (2012). 2. The criteria are not met for a higher rating than 20 percent for degenerative disease of the spine, since July 6, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Codes 5242, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Claimant The Veterans Claims Assistance Act, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2012). In regard to the claim on appeal for higher initial evaluation for service-connected disability, the requirement of VCAA notice does not apply. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). This is the case here, in that the claim for service connection for a back disorder has been substantiated, and no further notice addressing the downstream disability rating requirement is necessary. Regardless, the Veteran was provided appropriate notice by means of a February 2007 letter from the RO. The RO (including through the Appeals Management Center (AMC)) has taken appropriate action to comply with the duty to assist the Veteran through obtaining VA outpatient treatment records. In accordance with the Board's May 2011 remand, the RO attempted to obtain more recent VA treatment records; however, none were available. On VA examination in July 2011, it was noted that the Veteran was not receiving any regular treatment for his back. There is also no indication of any records from private treatment providers to acquire. The Veteran has also undergone three VA Compensation and Pension examinations. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition), including the most recent July 2011 VA examination pursuant to the Board's prior remand directive. The Board further concludes, including after reviewing the Veteran's representative's argument on this subject, that the July 2011 VA examination was sufficiently recent for evaluative purposes, given that it transpired less than two year ago, and moreover, there is no objective indication or substantive allegation from the Veteran concretely identifying any worsening in condition since that time period. Meanwhile, in furtherance of his claim, the Veteran has provided several personal statements. He did not request a hearing in this matter. The record as it stands includes sufficient competent evidence to decide the claim. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, supra, at 125-26. When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's service-connected degenerative disease of the spine (previously diagnosed as herniated disc, L5-S1) has been evaluated as 10 percent disabling from September 1, 2006 to July 5, 2011, and as 20 percent disabling since July 6, 2011. The assigned schedular ratings were provided for under the provisions of 38 C.F.R. § 4.71a pertaining to limitation of motion of the spine (Diagnostic Codes 5235 through 5242), cited below, notwithstanding that the actual rating provisions listed was Diagnostic Code 5243, which pertains to Intervertebral Disc Syndrome. The Board will thus presently consider and apply Diagnostic Code 5242, for degenerative arthritis of the spine (but will further duly apply the rating criteria for IVDS, to the extent warranted). Under applicable rating criteria, the Veteran's condition is to be evaluated in accordance with VA's General Rating Formula for Diseases and Injuries of the Spine. This rating formula provides for the assignment of a 10 percent rating when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent rating is for assignment upon a showing of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The next higher available 40 percent rating is made for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Under notes to the rating formula: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Relevant to the claim on appeal, the Veteran underwent VA Compensation and Pension examination in April 2006 for the spine, during which the Veteran reported continuing low back pain, aching and constant, with flare-ups of pain precipitated by bending or household maintenance activities. The pain was felt in the lower back radiating to either side of the paraspinal muscles mostly on the left side. There was no radiation of pain along the lower extremities. There were no bowel or bladder disturbances. There was no limitation of motion during flare-ups. The Veteran did not use any pain medication or back support. The pain did not interfere with activities of daily living or occupation. There were no incapacitating episodes over the previous 12 months. On physical examination, the lumbar spine showed no swelling or tenderness. The Veteran had a normal gait and normal heel and toe walking. Range of motion showed flexion from 0 to 90 degrees with pain starting at 60 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees with pain at 20 degrees; and right and left lateral rotation 30 degrees. Repetitive motion did not produce additional limitation of motion due to pain, weakness, fatigue, lack of endurance or incoordination. Straight leg raising was 80 degrees bilaterally. Neurological evaluation of both lower extremities showed no sensory, motor or reflex changes. A recent MRI showed disc bulging of L5-S1 with small herniation and annular tear producing stenosis of the left neural foramen. The diagnosis was herniated L5-S1 disk with stenosis of the left neural foramen. In his March 2007 correspondence, the Veteran indicated that due to his condition he could not sit for prolonged periods with his pelvis flexed and that the pain got worse the longer he sat. Bending forward to carry out household chores caused pain. The Veteran maintained that adjudicative review of an upcoming scheduled MRI would substantiate the higher evaluation sought. Records of VA outpatient include a March 2007 general medical consult indicating in part, an assessment of chronic lower back pain and disc disease. The Veteran at that time did not want any pain medications or physical therapy. He was warned to watch for the signs of parasthesias, and loss of bowel or bladder continence. There were no new neuromuscular symptoms. On his August 2007 Substantive Appeal to the Board (VA Form 9), the Veteran stated that he experienced pain daily, and sitting after five minutes became increasingly intolerable. He stated he spent a majority of his time either standing or lying flat on his back. He reiterated a request for another MRI as a basis to rate his claim. Upon VA re-examination in October 2007, the Veteran described having recurrent attacks of low back pain, with dull aching pain felt in the lower back that occasionally radiated along the right anterior thigh down to the knee region. The pain was usually brought on by prolonged sitting after one hour or prolonged driving and forward stooping. There was no pain on standing, walking or stair climbing. There was no limitation of motion of the lower back. There were no bowel or bladder disturbances, and there was no numbness or weakness in the legs. The Veteran occasionally used a back brace or a corset without much help. He used to be treated with pain medication. The pain did not interfere with his activities of daily living or work as a massage therapist. There were no incapacitating episodes in the previous year. The Veteran did not limp and did not use any assistive devices for ambulation. Physical examination indicated a normal gait and normal heel and toe rising. The thoracolumbar spine showed no tilt. There was minimal tenderness and muscle spasm over the right paravertebral muscles on the right side of the lumbar spine but no tenderness on the spine itself. Range of motion consisted of forward flexion to 90 degrees with slight pain starting at 50 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees, with pain starting at 20 degrees on the right side; and right and left lateral rotation 30 degrees, with mild pain starting at 20 degrees. Repetitive motion did not produce additional limitation of motion due to pain, weakness, fatigue, lack of endurance or incoordination. Straight leg raising was 80 degrees bilaterally with negative Lasegue sign. Neurological evaluation in both lower extremities showed no sensory, motor or reflex abnormalities. X-rays of the lumbar spine showed mild anterior compression of the T11 vertebra and moderate degenerative changes at the thoracolumbar junction. There was very mild L5-S1 disk narrowing with facet arthropathy. The diagnosis was chronic lumbar strain; mild anterior wedging of T11 vertebra with degenerative changes at the thoracolumbar junction; and mild narrowing at L5-S1 disc with degenerative changes. A February 2008 private physician's report from Dr. M.R.S., indicates that the Veteran reported a history of lower back pain for many years, more to the right side, without any leg radiation. A physical examination completed. A neurological evaluation generally was normal. The diagnosis given was L1-L2 and L5-S1 herniated nucleus pulposis. The report of a March 2008 completed at a private medical facility denotes as an overall impression that at L5-S1, there was no significant interval change in the mild bulging annulus with a left lateral annular tear and mild left sided neural foraminal narrowing without neural foraminal narrowing on the right. There was no significant canal stenosis. There were mild bilateral facet degenerative changes, unchanged. On VA examination of July 2011, there was no reported history of bowel or bladder incontinence, numbness, paresthesias, leg or foot weakness, falls or unsteadiness. There was no history of fatigue, weakness or spasm. There was decreased motion and stiffness. There was chronic lower back pain, described as stabbing pain, moderate, constant, and daily, without radiation. There were no incapacitating episodes of spine disease. Limitation on walking was to within one to two miles. On physical examination, posture and head position were normal, as was gait, and there was symmetry in appearance. There was no sign of abnormal spine curvature, including any gibbus, kyphosis, lumbar lordosis, lumbar flattening, list or scoliosis. There was no thoracolumbar spine ankylosis. There was no spasm, atrophy or weakness. There was guarding and pain with motion on both the right and left sides. There was not muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Thoracolumbar range of motion was flexion to 50 degrees; extension to 15 degrees; right and left lateral flexion to 20 degrees; right and left lateral rotation 20 degrees. There was objective evidence of pain on active range of motion, but no additional limitation of motion after three repetitions of range of motion. The diagnosis given was degenerative disease of the spine. The effects on occupational activities was described as decreased mobility, problems with lifting and carrying, lack of stamina, decreased strength of the lower extremities, and pain. On consideration of the record, the Board sees fit to assign an increased evaluation for a portion of the relevant rating time period under consideration, resulting in a partial grant of the benefit sought by the Veteran. The Board will assign a 20 percent initial rating for degenerative disease of the spine from the September 1, 2006 effective date of service connection up until July 5, 2011, based on available objective data on the extent of limitation of motion, and thereafter issue the denial of a rating higher than 20 percent throughout. To begin with, from September 1, 2006 to July 5, 2011, the Board finds on definitive review of the evidence that there is a sufficient basis to increase from 10 to 20 percent the applicable disability evaluation for the service-connected low back disorder. The Board turns to the report of the April 2006 VA Compensation and Pension examination -- the range of motion findings therein established joint mobility in the plane of forward flexion to 90 degrees, however, with pain beginning at 60 degrees. While the information on pain and related functional loss is somewhat limited from the examination report, the Board will assume nothing less than that functionally, the Veteran's true capacity for forward flexion was only 60 degrees when factoring in pain on use, pursuant to DeLuca v. Brown and 38 C.F.R. § 4.45, 4.49. Corroborating this result, the VA re-examination of October 2007 established forward flexion mobility to 90 degrees, with slight pain starting at 50 degrees. Again, where painful motion starts must be taken into account when considering actual joint mobility. According to the best evidence before the Board, the Veteran manifested forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, which under the rating schedule will warrant assignment of the next higher 20 percent disability evaluation. See again, 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. It follows that a 20 percent initial rating for the Veteran's lower back disorder is warranted from September 1, 2006 to July 5, 2011. The foregoing basis for a partial rating increase have been stated, the Board further finds that no higher than a 20 percent rating is assignable throughout the pendency of the Veteran's claim. Under the rating criteria found under the General Rating Formula at 38 C.F.R. § 4.71a, the next higher evaluation of 40 percent is assignable when there is forward flexion of the thoracolumbar spine 30 degrees or less. At no time has this been shown. Indeed, on the remaining VA examination for the Board's review, that conducted in July 2011, the Veteran objectively demonstrated thoracolumbar spine forward flexion to 50 degrees, with no additional limitation occasioned by pain or other form of functional loss. Here, once again, there was sufficient retained joint mobility as not to warrant any increased evaluation. Nor for that matter has the Veteran manifested at any point thoracolumbar spine ankylosis, as would otherwise correspond to a higher 50 percent rating, inasmuch as the term ankylosis contemplates total absence of motion. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) (both indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Under the rating criteria premised on limitation of motion, the Veteran cannot be assigned any higher evaluation. The Board has also considered alternative sources of rating criteria. The Veteran does have some vertebral disc involvement and this implicates the criteria for Intervertebral Disc Syndrome. However, he does not manifest any of the characteristic incapacitating episodes of IVDS pursuant to which 38 C.F.R. § 4.71a, Diagnostic Code 5243 requires for assignment of any compensable evaluation (rating based on the frequency and severity of such episodes). Nor is there any indication of separate compensable neurological impairment, inasmuch as the Veteran has mentioned at a few points radiating pain down the right of left lower extremity, but at other points denies this, and most significantly in any event, the objective neurological findings upon VA examination have consistently been entirely normal. The evidence in its entirety does not support distinct neurological impairment. See generally, 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present."). See also Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The Veteran has also contended that the severity of MRI findings should dictate the degree of disability evaluation. While structural components of a back disorder are relevant, to the extent the rating criteria is based upon level of functional impairment in everyday life and occupational activities, it requires that for an evaluation of 40 percent or higher there manifest actual symptomatology with more severe limitation of motion and/or ankylosis. Accordingly, the Board sees fit to assign a 20 percent initial evaluation for the Veteran's lower back disorder, with no higher rating than this evaluation throughout the claim on appeal. Meanwhile, aside from the VA rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations has also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, 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 extraschedular rating. At the outset, the Board addresses the Veteran's representative's contention that the Veteran's claim for increase on an extraschedular basis "was inadequately developed and prematurely denied as VA failed to consider the Veteran for extraschedular benefits." Generally, the Board will refrain from deciding an issue not first considered at the Regional Office level (unless resulting in a favorable disposition, or otherwise in some instances with the claimant's express consent). See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced). Here, however, even while the RO rating decision on appeal did not address entitlement on an extraschedular basis, the most recent Supplemental Statement of the Case (SSOC) from March 2012 clearly did. Therefore, the Board may fairly adjudicate this issue. In this case, there is no basis to find that the Veteran's lower back disorder presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. Essentially, the rating criteria premised upon limitation of motion with associated pain and/or discomfort fairly accounts for nearly all of the Veteran's symptoms as presented, including from his descriptions upon VA examination and on other occasions. This specifically includes those "additional" symptoms cited by the Veteran's representative in its brief of decreased mobility, problems with lifting, lack of stamina, decreased strength in the lower extremities, and pain -- most of these symptoms are covered in the Board's discussion of functional loss pursuant to DeLuca v. Brown, and any condition of the lower extremities has been discussed as to possible neurological impairment, which as indicated, has been effectively ruled out. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is granting in part the Veteran's claim for increased rating for his low back disorder. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. To the extent any higher level of compensation is sought, the preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A 20 percent initial rating, but not higher, for degenerative disease of the spine (previously diagnosed as herniated disc, L5-S1), from September 1, 2006 to July 5, 2011, is granted, subject to the law and regulations governing the payment of VA compensation benefits. A higher rating than 20 percent for degenerative disease of the spine since July 6, 2011 is denied. REMAND Regarding the newly raised claim for a TDIU, the July 2011 VA Compensation and Pension examination reflects that the Veteran was no longer working, but does not specifically opine or explain whether this fact was incidental to the service-connected lower back disability. This will be the inquiry on the requested VA general medical examination. On remand, the Veteran should also receive notice correspondence under the VCAA regarding his TDIU claim, as well as the opportunity to complete a formal application for entitlement to that benefit. Accordingly, this claim is REMANDED for the following action: 1. Send the Veteran a VCAA letter regarding the claim for a TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002 & Supp. 2012), and all other applicable legal precedent. 2. Send the Veteran a copy of VA Form 21-8940, Formal Application for a TDIU. 3. Ask the Veteran to identify any recent VA and non-VA medical care providers who have treated him for his service-connected disability and make arrangements to obtain all records that he adequately identifies. 4. Thereafter, schedule the Veteran for a VA general medical examination. The claims folder must be made available for the examiner to review. The examiner is asked to comment on whether the Veteran's degenerative disease of the lumbar spine renders him unable to secure or follow a substantially gainful occupation. In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 5. Next, review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 6. Finally, readjudicate the claim on appeal for a TDIU, based upon all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs