Citation Nr: 1325345 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 06-28 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for myofascial pain syndrome secondary to trauma and chronic cervical strain (cervical spine disability). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 11, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active service from July 1988 to June 1990. This matter is on appeal from a September 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In November 2009, the Board granted restoration of a 20 percent rating for the Veteran's service-connected myofascial pain syndrome secondary to trauma and chronic cervical strain and remanded this issue along with a claim for a TDIU. In October 2012, this case was again remanded for further evidentiary development. In November 2011 correspondence the Veteran raised the issue of entitlement to service connection for erectile dysfunction. While this issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The issue of entitlement to a TDIU prior to September 11, 2012, 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. FINDING OF FACT Throughout the course of the appeal, a cervical spine disability has been characterized by pain and limited range of motion; however, forward flexion of the cervical spine limited to 15 degrees or less, favorable ankylosis of the entire cervical spine or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, have not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify & to Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. In this case, prior to the initial denial of the present claim, the RO advised the Veteran of what the evidence must show to establish entitlement to an increased rating for his service-connected cervical spine disability in a notice letter sent in July 2005. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claim. The RO further described what evidence that the Veteran should provide in support of his claim. The Veteran does not appear to have been specifically informed of how VA determines effective dates. However, as the instant decision denies an increased rating, no effective date will be assigned. Any absence of Dingess notice is moot. No further development is required regarding the duty to notify. VA also has a duty to assist the Veteran in the development of a claim. This includes assisting the Veteran in procuring service treatment records (STRs) and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The file currently before the Board is a rebuilt claims file. However, copies of the original rating decision, STRs, and pertinent treatment records have been obtained. Also on file are pertinent (more recent) VA outpatient treatment records. The file also contains statements and contentions made by the Veteran and his representative. No outstanding evidence has been identified that has not otherwise been obtained. VA examinations were also conducted during the course of the appeal period in February and August 2005, December 2009, and January 2013. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that these examinations are adequate for adjudication purposes. These VA examination reports are comprehensive and adequately address the Veteran's orthopedic and neurologic symptomatology. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board notes that the Veteran's VA spine examination from January 2013 is nearly 6 months old. The mere passage of time since that examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's cervical spine disability since this most recent examination. The Veteran has not argued the contrary. The appeal was also remanded in November 2009 and October 2012 for the Veteran to be afforded VA examinations with regard to his cervical spine disability as well as obtain copies of the STRs. Those records were obtained and the examinations were adequately performed. Moreover, pursuant to the October 2012 remand, a January 2013 medical opinion provided a sufficient response to the Veteran's assertion that he has a low back disability related to his service-connected spine disability was also obtained. The Board is satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 11, 146-47 (1999). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). 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. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings. 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012) The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Veteran's myofascial pain syndrome secondary to trauma and chronic cervical strain is currently rated as 20 percent disabling under Diagnostic Code 5237, which pertains to lumbosacral or cervical strain. The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under Diagnostic Code 5237, a 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less or where there is favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 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 cervical spine, 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 (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Moreover, "chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six 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 intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment provided that the effects in each spinal segment are clearly distinct evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Turning to the merits of the claim, in February 2005, the Veteran underwent a routine VA spine examination at which time he complained of neck pain that radiated to the shoulder blade for which he took prescribed pain medication. Examination of the cervical spine revealed a little tenderness, but no evidence of spasm. Range of motion testing revealed flexion to 60 degrees and backward extension to 20 degrees, limited by pain with repetition. There was no additional increase in loss of range of motion. Lateral flexion was 40 degrees to the right and 30 degrees to the left and 40 degrees limited by pain. Rotation was to 50 degrees on the right and to 40 degrees on the left limited by pain. There was no additional limitation with repetitive use. He did report additional limitation of motion during flare-ups. The neck was painful on motion particularly with extension and there was some tenderness, but there was no evidence of any spasm or weakness. An X-ray examination of revealed a normal cervical spine. On neurological examination, the Veteran denied any numbness or paresthesias. Right triceps was present, but he could not elicit the right biceps or right brachioradialis reflex. Left triceps and biceps reflexes were present, but he could not elicit brachioradialis. There was no sensory loss on neurological examination, and he did not complain of any numbness. The examiner diagnosed myofascial pain syndrome due to trauma and chronic cervical strain as described above. He worked as a truck driver and spent a lot of time in bed after a particularly hard week. However, he denied being prescribed bed rest by a physician for incapacitating episodes in the past year. The Veteran underwent another VA spine examination in August 2005 at which time he complained of chronic lower cervical spine pain without radiculopathy or focal neurologic deficit. He denied any improvement of pain with medication, but indicated that placing a vibrating pad over his lower cervical spine did help. He was currently unemployed and denied any functional restrictions at home for the condition. He did not use a brace or cane and had not been incapacitated in the past year. Reflexes were +1 and equal in the upper extremities and motor strength was 2+ and equal in the upper extremities. Coordination was normal in both upper extremities. Cervical spine examination revealed normal appearing spinous processes and abnormal alignment with tenderness to palpation in the lower cervical spine without spasm. Range of motion testing revealed forward flexion to 55 degrees with pain, posterior flexion to 30 degrees with pain, 40 degrees lateral flexion to the right and to the left with pain, and 55 degrees rotary flexion to the right and to the left with pain. There was no spasm noted in the cervical spine. There was no weakness, fatigability, incoordination, or additional functional impairment following repetitive stress testing against resistance of the cervical spine. The impression was myofascial pain syndrome secondary to remote cervical strain. The examiner observed that he did not use an assistive device for his neck or back condition and he was unemployed. On range of motion testing, there was no additional limitation or repetition. There were no additional limitations or flare-ups as he stated this was a chronic static condition. There had been no incapacitating episodes in the past 12 months. On VA muscles examination in December 2009, the Veteran presented with continued complaints of pain in the base of the neck without radiation. Walking, prolonged sitting, and standing increased both lumbar and cervical spine pain. On examination, the Veteran stood with normal posture and walked with a normal gait although he carried a cane for support. Examination of the cervical spine revealed backward extension to 35 degrees, forward flexion to 45 degrees, 30 degrees lateral flexion to the right and to the left, and 60 degrees rotation to the right and to the left. All movements were limited by pain which started at the extreme of range of motion. After three repetitions, there was no additional limitation of range of motion. There was no evidence of atrophy. Sensory testing revealed no pain or touch deficits. Motor strength in the upper extremity was likewise normal bilaterally. The examiner diagnosed cervical myofascial pain syndrome. In a December 2009 addendum, the examiner stated that the Veteran would have difficulty doing any work involving physical exertions especially lifting based on his description of the amount of pain that he had and some restriction of motion. The examiner further opined that he should be able to perform sedentary work not involving prolonged sitting or standing. Much of the VA treatment records document treatment for disabilities (service connected and non-service connected) that are not on appeal. However, with respect to the Veteran's cervical spine disorder, a January 2010 spine X-ray examination and an impression of limited flexion, mild bony foramina narrowing on the right at C3-C4, interval development of anterior osteophytes at multiple levels, and a potential for diffuse idiopathic skeletal hyperostosis. A February 2011 X-ray examination of the cervical spine revealed mild spurring as described. In March 2011, the Veteran rated his neck pain a 7 out of 10 on the pain scale. The Veteran underwent a VA Disability Benefits Questionnaire neck (cervical spine) examination in January 2013, wherein myofascial pain, cervical strain, chronic was diagnosed. The examiner noted that the Veteran did not report that flare-ups impacted the function of the cervical spine. Range of motion testing revealed forward flexion to 45 degrees with no objective evidence of painful motion; extension to 30 degrees with pain; 35 degrees lateral flexion to the right and to the left without pain and 45 degrees lateral rotation to the right and to the left with pain. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test, flexion ended at 45 degrees or greater, extension ended at 30 degrees, lateral flexion to the right and to the left ended at 35 degrees, and lateral rotation to the right and to the left ended at 45 degrees. There was functional loss and/or functional impairment of the cervical spine after repetitive use due to pain on movement. However, there was no additional limitation in range of motion of the cervical spine following repetitive-use testing. There was no localized tenderness or pain to palpation for joints/soft tissue of the cervical spine. There was no guarding or muscle spasm. Muscle strength testing and reflex and sensory examinations were normal. The examiner observed that he did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner noted that the Veteran did not have IVDS of the cervical spine or any other neurological abnormalities. In response to the Veteran's representatives claim that the Veteran's low back disability was related to his cervical spine disability, the examiner opined that it was less likely that the Veteran's chronic neck strain was a nexus for his low back disability. The rationale provided was STRs indicated neck traction, but not low back traction after the in-service accident. In addition, the 2006 diagnosis of acute L-5 radiculopathy was not a chronic strain condition from the neck. The examiner also opined that the Veteran's chronic cervical strain would have no impact on his ability to seek and maintain gainful or sedentary employment. Based on the foregoing, the evidence of record has not shown that the Veteran warranted in excess of a 20 percent rating at any time during the appellate period. The evidence does not indicate that the forward flexion in his cervical spine was 15 degrees or less throughout the period on appeal. Specifically, range of motion tests of the cervical spine have indicated normal forward flexion. While his ranges of motion in extension, lateral flexion and bilateral rotation were less than normal on VA examination in February and August 2005, December 2009, and January 2013, there is simply no basis for assigning a higher (30 percent) rating based on loss of range of motion. There is also no basis for assigning a higher rating for favorable ankylosis of the cervical spine. Such is simply not shown. Indeed, as discussed, the Veteran retains a range of motion of the cervical spine. The evidence also fails to establish the presence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. As was noted above, while the Veteran has complained of pain in his neck, the evidence does not indicate that such pain had been to the point where it would have warranted prescribed periods of bed rest or treatment by a physician. His VA records are silent in this respect. Indeed, at the February 2005 VA examination the Veteran denied being prescribed bed rest for his cervical spine disability. The August 2005 the examiner also observed the absence of incapacitating episodes over the past 12 months. Moreover, at his January 2013 examination, he denied having flare-ups that impacted the function of the cervical spine. That examiner even noted that there was no evidence of intervertebral disc syndrome on examination. Therefore, the Veteran does not warrant a 30 percent rating for his cervical spine disability. Consideration has been given to the Veteran's complaints of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, an increased rating for the Veteran's service-connected cervical spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the 20 percent rating already assigned. Specifically, at the time of the February 2005 VA examination, the examiner observed that range of motion was additionally limited by pain, but there was no quantifiable limitation with repetitive use. On August 2005 VA examination, range of motion was also limited by pain, but the examiner observed that there was no weakness, fatigability, incoordination, or additional functional impairment following repetitive stress testing. The December 2009 examination similarly observed that following repetitive use there was no change in range of motion. Finally, on VA examination in January 2013, while the examiner observed that there was functional loss and/or functional impairment of the cervical spine after repetitive use due to pain, there was no additional limitation in ROM of the cervical spine following repetitive-use testing. Overall, the effect of the Veteran's cervical spine symptomatology is contemplated in the currently assigned 20 percent disability rating. In accordance with 38 C.F.R. § 4.71(a), the Board has also considered whether a separate rating is warranted for any associated neurological abnormality. However, a separate rating is not warranted due to either his cervical spine disabilities. Specifically, on February 2005 VA examination, there was no sensory loss on neurological examination, and he did not complain of any numbness. In August 2005, reflexes were +1 and equal in the upper extremities and motor strength was 2+ and equal in the upper extremities. Coordination was normal in both upper extremities. In December 2009, sensory and motor examinations were normal and he denied any radiation of neck pain. Finally, on VA examination in January 2013, muscle strength testing and reflex and sensory examinations were normal. The examiner observed that the Veteran noted that he did not have radicular pain or any other signs or symptoms due to his radiculopathy. Additional considerations In reaching the above conclusions, the Board has also not overlooked the Veteran's statements in support of his claim. In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. neck pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of the disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. See King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012). Furthermore, the Board finds the objective medical findings and opinions provided by the expert of record should be accorded the greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators."). The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluations on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1). In this case, there has been no showing that the Veteran's cervical spine disability could not be contemplated adequately by the applicable schedular rating criteria discussed above. The currently assigned rating for the Veteran's cervical spine disability adequately describes the severity of the Veteran's symptoms for this disability. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's cervical spine disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In light of the foregoing, the Board finds that the Veteran's claim for a rating in excess of 20 percent for a cervical spine disability, must be denied. ORDER A rating in excess of 20 percent for myofascial pain syndrome secondary to trauma and chronic cervical strain is denied. REMAND With regard to the claim for a TDIU award prior to September 11, 2012, the Board observes that a March 2013 rating action granted service connection and assigned a 100 percent schedular rating for a seizure disorder from September 11, 2012. The RO then issued an April 2013 Supplemental Statement of the Case (SSOC) and determined that the TDIU claim was moot as the Veteran had been awarded a 100 percent rating for his service-connected seizure disorder. A grant of a 100 percent disability, however, does not always render the issue of TDIU moot. As it is potentially relevant here, VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC ) under 38 U.S.C.A. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C.A. § 1114(s)); See also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). As the Veteran is also service-connected for myofascial pain syndrome secondary to trauma and chronic cervical strain, the RO must also consider whether a TDIU is warranted due to this disability. Additionally, when a Veteran seeks an increased rating for a service-connected disability, VA must also consider entitlement to TDIU, if it is raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has claimed to be unemployable during the entire course of his cervical strain appeal (going back to 2005). Thus, VA must still consider entitlement to TDIU from the time he submitted his original claim in for TDIU benefits in August 2005. However, the RO has not considered entitlement to TDIU during this time period. Thus, the claim must be remanded so that the RO can consider whether a TDIU is warranted prior to September 11, 2012. See Stegall, 11 Vet. App. at 268. The Board observes that prior to September 11, 2012, the Veteran was service-connected for a cervical spine disability rated as 20 percent disabling, and a service-connected seizure disorder rated as 10 percent disability rating for a combined disability rating of 30 percent. Accordingly, as he did not have a combined rating of 70 percent or more prior to September 11, 2012, his combined rating for his service-connected disabilities does not meet the minimum schedular criteria for a TDIU prior to September 11, 2012. See, 38 C.F.R. § 4.16(a). As the service-connected disabilities in this case do not meet the schedular requirements for a TDIU, VA must also consider whether the Veteran may be entitled to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). This regulation provides that veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the criteria in 38 C.F.R. § 4.16(a), may receive extraschedular consideration. Specifically, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). The Board reiterates that in order to be considered for a TDIU on an extraschedular basis, the matter must first be referred to the Director of the Compensation and Pension Service. Id. It is unclear to the Board whether any present unemployment or retirement would be due solely to the Veteran's service-connected disabilities-cervical spine and seizure disorder prior to September 11, 2012. Accordingly, it would helpful to obtain an opinion as to whether the Veteran was unable to secure and follow substantially gainful employment by reason of his service-connected disabilities prior to September 11, 2012. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC shall review the Veteran's claims file and shall take such additional development action as it deems proper with respect to the claim for a TDIU. It shall also schedule the Veteran for an appropriate VA employability examination to determine whether he was unable to secure and follow substantially gainful employment by reason of his service-connected disabilities for the period prior to September 11, 2012. Further, the RO/AMC shall consider whether to submit this claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for extraschedular consideration, if appropriate. 2. Thereafter, take adjudicatory action on the Veteran's TDIU claim, including consideration of Rice and the potential applicability of 38 U.S.C.A. § 1114 and whether referral of the TDIU claim for extraschedular consideration is warranted. If the benefits sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran and his representative and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The SSOC should contain, among other things, a summary and discussion of the relevant evidence received since the SSOC was issued in April 2013. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs