Citation Nr: 1329634 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 05-10 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine at L4-L5 and L5-S1 prior to December 3, 2010 and in excess of 20 percent from December 3, 2010 to December 15, 2010, and from July 1, 2011 thereafter. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from December 1973 to December 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before a VA Decision Review Officer in November 2009. In April 2010, a hearing was held before the undersigned Acting Veterans Law Judge (AVLJ) of the Board. The Court has held that entitlement to TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the Court's holding in Rice, as well as the Veteran's contentions that his service- connected lumbar spine disability renders him unemployable, the Board has amended the issues on appeal to include entitlement to TDIU as reflected above. This case was previously before the Board in September 2012, at which time the back disability claim was remanded to allow the Agency of Original Jurisdiction (AOJ) for further development. Subsequently, the AOJ issued a March 2013 rating decision awarding service connection and separate evaluations for peripheral neuropathy of the bilateral lower extremities. The Veteran has not initiated an appeal with either the effective date or evaluation assigned to these disabilities. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to December 3, 2010, the Veteran's service- connected lumbar disability was manifested by no more than subjective complaints of pain, especially on physical activity, standing and sitting, and decreased range of motion with objective evidence of slight limitation of motion of the lumbar spine; there is no competent evidence of ankylosis, incapacitating episodes or associated neurological disability for which compensation has not been previously awarded. 2. From December 3, 2010 to December 15, 2010, and from July 1, 2011, to October 9, 2012, the Veteran's service-connected lumbar disability was manifested by no more than subjective complaints of pain, especially on physical activity, standing and sitting, and decreased range of motion with objective evidence of moderate limitation of motion of the lumbar spine; there is no competent evidence of ankylosis, incapacitating episodes or associated neurological disability for which compensation has not been previously awarded. 3. Resolving all doubt in favor of the Veteran, as of October 9, 2012, the Veteran's service-connected lumbar disability is manifested by objective evidence of motion of the lumbar spine limited by pain on repetitive motion to no more than 30 degrees of flexion; there is no competent evidence of ankylosis, incapacitating episodes or associated neurological disability for which compensation has not been previously awarded. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation for degenerative disc disease of the lumbar spine have not been met prior to October 9, 2012. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.655, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 and 5243, General Rating Formula for Diseases and Injuries of the Spine (2012). 2. The criteria for an evaluation of 40 percent, but not greater, for degenerative disc disease of the lumbar spine have been met as of October 9, 2012. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.655, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 and 5243, General Rating Formula for Diseases and Injuries of the Spine (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA's duty to notify has been satisfied through a notice letter dated January 2004, provided to the Veteran prior to the rating decision on appeal, that fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his claim for an increased evaluation, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. A March 2006 letter informed him of the disability evaluation and effective date elements of a service connection claim. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Veteran testified before the undersigned at a hearing in April 2010. 38 C.F.R. § 3.103(c)(2) (2012) requires that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Here, during the hearing, the AVLJ explained the issue that is before the Board. The representative and the AVLJ asked questions to ascertain whether the Veteran had submitted evidence in support of his claim. In addition, the AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim on appeal. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. As noted above, the instant claim was most recently remanded in January 2013 for additional development, specifically providing the Veteran a new VA medical examination. The Veteran was provided a VA examination in October 2012 with addendum in March 2013 which, in addition to prior VA examinations, is adequate for the purposes of evaluating the Veteran's disability as it involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides a discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The claim was then readjudicated by a March 2013 supplemental statement of the case. There has been substantial compliance with the Board's previous remand, and adjudication of the instant claim may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The Veteran's lumbar spine disability has been evaluated as 10 percent disabling prior to December 3, 2010, and 20 percent disabling thereafter, under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5237, pertaining to lumbosacral strain (a total evaluation was awarded from December 15, 2010, to July 1, 2011). Also potentially applicable to the Veteran's claim is Diagnostic Code 5243, which is applicable to intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under 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 method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The Veteran asserts a higher evaluation is warranted throughout the appeal period. Under Diagnostic Code 5003, degenerative arthritis, the disability is evaluated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. However, in this case, the Veteran's limitation of motion is compensable. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine warrants a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 38 C.F.R. § 4.71a. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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 spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Finally, forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, the combined range of motion 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 or more of the height warrants a 10 percent rating. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, 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, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 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. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes contained in Diagnostic Code 5243 provides for a 20 percent evaluation when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation is contemplated when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is contemplated for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). 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 chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (2). Turning to the evidence of record, a February 2004 VA examination report indicates the Veteran reported back pain which was worse with attempting to rise from a sitting position, having a bowel movement, or getting in or out of a tub. He reported being able to perform his activities of daily living without difficulty. On examination, the Veteran achieved full flexion to 90 degrees, extension to 25 degrees, full lateral rotation of 30 degrees bilaterally, and full lateral flexion to 30 degrees bilaterally. The combined range of motion of the lumbar spine was 235 degrees. There was no tenderness, spasm, redness, or heat of the back, and he had normal spinal curvatures without abnormality of the musculature. An August 2007 VA treatment record notes "mild" restriction of flexion and extension of the lumbar spine. At an August 2009 VA examination, the Veteran reported stiffness on rising in the morning with a flare-up every three to four weeks. He reported his pain was worse with prolonged sitting, walking and standing. On examination, range of motion was recorded as follows: flexion to 65 degrees, full extension to 30 degrees, full lateral rotation bilaterally, and lateral flexion to 25 degrees bilaterally. The combined range of motion of the lumbar spine was 205 degrees of motion. There was no additional loss of motion due to pain, fatigue, weakness, lack of endurance or incoordination. See DeLuca, supra. Finally, there was no spasm or increased head noted. At a December 2010 VA examination, the Veteran complained of a severe aching pain to the entire lumbar area which flares up after prolonged sitting. His posture and gait were normal, and there was no abnormal spinal curvature, spasms or guarding present. On examination, taking into consideration pain and weakness following repetitive motion, ranges of motion of the lumbar spine were reported as follows: flexion to 40 degrees, extension to 20 degrees, lateral rotation to 20 degrees bilaterally and lateral flexion to 10 degrees bilaterally. The combined range of motion of the lumbar spine was 120 degrees of motion. Based on this examination, the Veteran's disability evaluation was increased to 20 percent. See December 2011 rating decision. At his October 2012 VA examination, the Veteran reported flare-ups with prolonged sitting, standing and driving. He reported retiring in September 2011 due to his back and knee problems. The Veteran had flexion to 40 degrees, with pain beginning at 30 degrees, and extension to 15 degrees, with pain beginning at 10 degrees. Repetitive motion testing resulted in excess fatigability, pain with movement and guarding. Additional range of motion measurements could not be obtained after repetitive testing, however, due to pain. In March 2013, the examiner who conducted the October 2012 examination provided a supplemental opinion. He stated that the Veteran had intervertebral disc syndrome. The examiner stated that the Veteran "reports" needing bedrest for one to two days, three times per week since July 2011. Applying the range of motion measurements to the General Rating Formula, the above evidence demonstrates the Veteran is not entitled to an evaluation greater than 10 percent for his lumbar spine disability at any point prior to December 3, 2010. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. There is no medical evidence of forward flexion of the lumbar spine limited to 60 degrees or combined range of motion of the lumbar spine limited to 120 degrees during this stage of the Veteran's appeal, even when considering functional loss. Id.; see also 38 C.F.R. §§ 4.40, 4.45. Further, there is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. Finally, there is no objective evidence of ankylosis of the lumbar spine or of the entire spine during this period because the Veteran retains the ability to move his spine. Id; see also Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Furthermore, the above evidence demonstrates the Veteran is not entitled to an evaluation greater than 20 percent for orthopedic manifestations of his lumbar spine disability for the period December 3, 2010, to October 9, 2012. An evaluation greater than 20 percent is not warranted for this stage of the Veteran's appeal as there is no medical evidence of forward flexion of the lumbar spine limited to 30 degrees or less, even when considering functional loss. Id.; see also 38 C.F.R. §§ 4.40, 4.45. In addition, there is no objective evidence of ankylosis of the lumbar spine or of the entire spine at any point during this period. Id.; see also Lewis v. Derwinski, 3 Vet. App. 259 (1992). Finally, the Board has determined that an evaluation of 40 percent is warranted as of October 9, 2012, the date of the VA examination indicating an increase in severity of the lumbar spine disability. The Board again notes that the Veteran achieved initial motion to 40 degrees of flexion, with pain beginning at 30 degrees. However, after repetitive motion testing, the Veteran's pain was of such severity that additional measurements could not be undertaken. Effects of pain and weakness on functional motion are to be considered when assigning a disability evaluation. See DeLuca, supra. Therefore, resolving all doubt in favor of the Veteran, and taking into consideration additional pain and weakness following repetitive testing, the Board will consider the Veteran's functional range of motion as of October 9, 2012, to be less than 30 degrees of flexion, thereby resulting in a 40 percent evaluation. An evaluation greater than 40 percent is not warranted, however, as there is no evidence of ankylosis of the spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine; see also Lewis v. Derwinski, 3 Vet. App. 259 (1992). The Board has also considered whether the Veteran is entitled to an increased evaluation under the schedular criteria for intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, the Board finds that an evaluation greater than those discussed above is not warranted because there is no competent medical evidence of incapacitating episodes, defined by regulation as doctor- prescribed bed rest. In fact, VA treatment records reflect that the Veteran's lumbar spine condition improves with movement, such as walking. See, e.g., December 2012 VA treatment record. The March 2013 VA supplemental opinion notes that the Veteran "reports" needing bed rest for 1-2 days approximately three times per week. However, despite the VA examiner indicating such episodes as "incapacitating episodes," neither he nor the other medical evidence of record finds that any such bed rest has been prescribed by the Veteran's physicians. Absent medical evidence of doctor prescribed bed rest, an increased evaluation is not warranted at any stage of the Veteran's appeal under Diagnostic Code 5243. Finally, the Board has considered whether a separate evaluation for neurological disability is warranted. Initially, the Board again notes that the Veteran has been awarded service connection for bilateral radiculopathy of the lower extremities, and, as such, these issues are not currently before the Board. Furthermore, there is no evidence of record that the Veteran suffers from bowel, bladder or erectile impairment as a result of his lumbar spine disability. Thus, the Board finds that a separate evaluation for additional neurological disability is not warranted with respect to the present appeal. The Board acknowledges the Veteran's complaints of pain, throughout the appeal period. However, the Board notes the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion of the lumbar spine to less than those levels discussed above and, as such, does not serve as a basis for an increased evaluation. See Mitchell v. Shinseki, 25 Vet. App. 32 ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.") In light of the above, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent prior to December 3, 2010, or in excess of 20 percent prior to October 9, 2012, for his service-connected lumbar spine disability. See Hart, supra. The Board has, however, determined that an evaluation of 40 percent is warranted as of October 9, 2012. The Board has considered whether the benefit of the doubt rule applies. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). However, a preponderance of the evidence is against an increased evaluation beyond those assigned above; thus, this rule does not apply. As a final note, the discussion above reflects that the symptoms of the Veteran's lumbar spine disability are fully contemplated by the applicable rating criteria. The effects of the Veteran's disability, including pain, restricted movement and limitation of activities of daily living, have been considered and are contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An increased evaluation for degenerative disc disease of the lumbar spine prior to October 9, 2012, is denied. An evaluation of 40 percent, but not greater, for degenerative disc disease of the lumbar spine is granted as of October 9, 2012. REMAND Entitlement to TDIU is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). In this case, the Veteran's service-connected disabilities meet the threshold criteria set forth in 38 C.F.R. § 4.16(a) beginning October 9, 2012. Prior to that time, his combined disability rating did not meet these criteria. All cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of 38 C.F.R. § 4.16(a), are to be referred to the Under Secretary for Benefits or the Director, Compensation Service for consideration of an extraschedular evaluation. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). An extraschedular rating is requested by the RO and approved by the Under Secretary Benefits or by the Director, Compensation Service. In the instant case, the Veteran has asserted, and the record suggests, that he may be unemployable due to his service-connected disabilities. However, the Board observes a medical opinion has not yet been obtained to determine whether the Veteran is unable to obtain or pursue substantially gainful employment due solely to his service- connected disabilities. Friscia v. Brown, 7 Vet. App. 294 (1994). As such, the claim for TDIU must be remanded for proper development, to include obtaining a medical opinion. On remand, the RO must also refer the Veteran's claim to the Director, Compensation Service, for consideration of an extraschedular TDIU for the portion of the appeal period where the threshold criteria set forth in 38 C.F.R. § 416(a) were not met. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file is to be reviewed by a VA examiner regarding the Veteran's employability. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. If it is determined that an additional examination of the Veteran is necessary in order to render this opinion, one is to be scheduled. Following a review of the claim file and examination of the Veteran, if warranted, the examiner is to offer an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities (peripheral neuropathy of the bilateral lower extremities, residuals of a left knee injury, degenerative disc disease of the lumbar spine with associated scarring), either singly or taken together, render him unable to secure or follow a substantially gainful occupation consistent with his educational and occupational background. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefit sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. Because the Veteran's combined disability evaluation does not meet the regulatory criteria for consideration of a schedular TDIU for a portion of the appeal period, readjudication MUST include referral of the appellant's TDIU claim to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. §4.16(b) (2012). If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs