Citation Nr: 1329757 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 07-25 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a higher initial rating for lumbar myositis, currently rated as 20 percent disabling. 2. Entitlement to a higher initial rating for cervical myositis, currently rated as 10 percent disabling prior to November 29, 2011 and 20 percent disabling from that date. 3. Entitlement to a higher initial rating for right hip trochanteric bursitis, currently rated as 10 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from July 1985 to December 1985; and from December 2003 to February 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) that granted, in relevant part, service connection for lumbar myositis, cervical myositis, and right hip trochanteric bursitis and assigned 20, 10, and 10 percent evaluations, respectively, effective March 1, 2005. In November 2011, the Board remanded the claims for additional development. . As a result of that development, in a September 2012 rating decision, the Appeals Management Center (AMC) assigned separate 10 and 0 percent disability ratings, for right thigh limitation of extension and flexion, respectively, effective November 29, 2011. At the same time the AMC increased the rating for cervical myositis to 20 percent disabling, resulting in "staged ratings" as reflected on the title page. It is presumed that the Veteran is seeking the maximum benefit allowed by law and regulation for such disability, and "it follows that such a claim remains in controversy where less than the maximum available benefit is awarded." AB v. Brown, 6 Vet. App. 35, 38 (1993). As the maximum increased ratings for the right thigh and cervical spine disabilities have not been granted from the date of claim, these matters remain on appeal and have been characterized accordingly. The United States Court of Appeals for Veterans Claims (Court) has held that TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). As an increased rating claim is on appeal and the evidence suggests the service connected disabilities have caused the Veteran to be currently unemployed, the issue is included as set forth on the title page. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In October 2012 correspondence, the Veteran indicated that he wished to waive initial RO consideration of additional evidence that he may wish to submit after October 18, 2012. See 38 C.F.R. § 20.1304 (2013). The evidence of record appears to raise a claim seeking service connection for residuals of a puncture wound injury to the right arm. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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. Throughout the appeal period, the Veteran's lumbar myositis has been manifested by forward flexion ranging from 50 to 90 degrees and guarding or muscle spasm severe enough to result in abnormal gait; forward flexion or 30 degrees or less, ankylosis, or incapacitating episodes of intervertebral disc syndrome having a total duration of at least four weeks but less than six weeks during the last twelve months have not been shown. 2. For the appeal period prior to November 29, 2011, the Veteran's cervical myositis has been manifested by forward flexion between 40 and 45 degrees, a combined range of motion from 280 to 340 degrees, and localized tenderness not resulting in abnormal gait or abnormal spinal contour; forward flexion of the cervical spine of 30 degrees or less, the combined range of motion of the cervical spine of 170 degrees or less, ankylosis, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the previous 12 months have not been shown. 3. For the appeal period from November 29, 2011, the Veteran's cervical myositis has been manifested by forward flexion of 35 degrees, a combined range of motion of 225 degrees, and localized tenderness with guarding and/or spasm, not resulting in abnormal gait or abnormal spinal contour; forward flexion of 15 degrees or less, ankylosis or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during the previous 12 months have not been shown. 4. Throughout the appeal period, the Veteran's right hip trochanteric bursitis is manifested by complaints of pain and slight limitation of motion; flexion to 45 degrees or less; limitation of abduction motion lost beyond 10 degrees, an inability to cross his legs, an inability to toe-out more than 15 degrees, ankylosis, flail hip joint, fracture of shaft, anatomical neck, or surgical neck of femur with nonunion or malunion have not been shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 20 percent for lumbar myositis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237 (2013). 2. The criteria for initial ratings higher than 10 percent for cervical myositis prior to November 29, 2011, and 20 percent from that date, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2013). 3. The criteria for initial rating higher than 10 percent for right hip bursitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5251, 5252 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The appeal for higher initial ratings for lumbar and cervical myositis and right hip trochanteric bursitis arises from the Veteran's disagreement with the initial ratings assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records, and all of the relevant identified post-service VA treatment records. In addition, the Veteran was afforded VA examinations to assess the severity of the Veteran's lumbar and cervical myositis and right hop trochanteric bursitis. In November 2011 remand, the Board sought current VA treatment records since April 2011 and VA examinations to assess the severity of his service-connected lumbar and cervical myositis and right hop trochanteric bursitis. The requested examinations were provided in November 2011 and were in accordance with the remand request and were adequate. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998); and Barr v. Nicholson, 21 Vet. App. 303 (2007). The evidence does not suggest and the Veteran has not alleged that his disabilities have increased in severity since his last VA examinations. A review of the Virtual VA paperless claims processing system shows that VA treatment records through August 2012 are of record. The AMC considered these updated VA treatment records in the September 2012 SSOC. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Legal Criteria-Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disability. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Disabilities of the Spine Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, including degenerative arthritis of the spine (DC 5242). See 38 C.F.R. § 4.71a. The General Rating Formula provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching, in the area of the spine affected by the residuals of injury or disease: A 10 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is warranted where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted where there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243 (2013). Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when incapacitating episodes have a total duration of at least six weeks during the past 12 months. A 40 percent evaluation is warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 20 percent evaluation is warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. Note 1 states that 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. See 38 C.F.R. § 4.71a, DC 5243 (2013). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59 (2013). The Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32 (2012). Rather, to support an increased rating pain must result in functional loss, in terms of limitations in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. i. Lumbar Myositis The Veteran's service-connected lumbar myositis has been rated under Diagnostic Code 5237 for lumbosacral strain. See 38 C.F.R. § 4.71a (2013). Service treatment records showed evidence of treatment for mechanical low back pain while in service in January and May 2004. Treatment records from San Juan VA Medical Center included complaints of back pain. An April 2007 X-ray report revealed degenerative changes and mild compression of the thoracic vertebra. On January 2006 VA examination, the Veteran reported pain at the paravertebral muscles of the lumbosacral area that was no radiating. Pain affected him for two to three hours. He reported flare-ups with a severity of 9/10 40 affecting him at least two or three times per month with a duration of two to three hours. He reported that precipitating factors included a cloudy or rainy days as well as prolonged standing, sitting, or overhead activities exacerbated pain. He took medication and hot showers for alleviation. He denied additional limitation of motion during flare-ups. He walked without an assistive device. He was able to ambulate for 20 or 40 minutes. The Veteran was independent in self-care and activities of daily living. He used to work as a construction worker, but had to quit due to pain in the lumbosacral and hip area. He reported that he was looking for another type of job. Physical examination revealed that forward flexion was 0 to 90 degrees; extension was 0 to 30 degrees; bilateral lateral flexion were each 0 to 30 degrees; and lateral rotation were each 0 to 45 degrees. The examiner further explained that forward flexion was 0 to 80 degrees with pain in the last 10 degrees with a functional loss of 10 degrees due to pain. Extension and bilateral lateral flexion were from 0 to 30 degrees with pain from 20 to 30 degrees and no functional loss. Bilateral lateral rotation were each 0 to 30 degrees with pain in the last 30 degrees and no functional loss. Repetitive motion elicited some pain at the paravertebral muscles without any evidence of weakness, fatigue, incoordination, or further functional loss or impairments. There was tenderness upon palpation at the paravertebral muscles of the lumbosacral area without spasms or guarding. An inspection of the lumbosacral area was negative for any ankylosis, abnormal kyphosis, reversed lordosis, or scoliosis. On neurological examination, no neurological abnormalities were demonstrated. The Veteran denied being hospitalized due to lumbosacral intervertebral disc syndrome during the last year. Bed rest was not recommended or any other specific accommodations. The diagnosis was lumbar myositis. On May 2008 VA examination, the Veteran reported that his low back pain radiated to both legs as numbness after sitting on the toilet for a long period of time or sitting down for long periods of time. He denied fecal or urinary incontinence. He had additional limitation of motion in the low back secondary to low back pain during flare-ups. He had complaints of weight gain. He was able to walk approximately 15 to 20 minutes, and then he had increased back pain. He did not have an unsteady gate or fell frequently. He was independent in his activities of daily living. He bathed by grabbing onto a bar or using a shower chair. He was not employed and did not work due to low back pain. He was unable to perform this type of work. He was not able to participate in activities that involved running and jumping. He was not able to do yard chores such as mowing the lawn, painting, and climbing a ladder. He was able to drive short distances to run errands. He did not do yard or household chores due to back pain. Physical examination revealed that he was erect in posture, there was adequate alignment of the head over the trunk, symmetry in appearance and symmetry in rhythm of spinal motion. He walked with Canadian crutches (assistive device) with equal step length and cadence. The range of motion of the lumbosacral spine revealed that flexion was to 67 degrees and extension, bilateral lateral flexion and rotation were each to 20 degrees. Pain in flexion was present from 57 to 67 degrees, extension from 15 to 20 degrees, bilateral lateral flexion from 15 to 20 degrees, and bilateral lateral rotation from 17 to 20 degrees. The examiner noted that the Veteran was additionally limited by pain, but not additionally limited by fatigue, weakness, lack of endurance, or incoordination during repetitive motion. The examiner reported that function limitation was present in flexion from 57 to 67 degrees, extension from 15 to 20 degrees, bilateral lateral flexion from 15 to 20 degrees, and bilateral lateral rotation from 17 to 20 degrees. There was tenderness to palpation at the L4, L5, and S1 paravertebral muscles, and at the L5 and S1 spinous process. There was no guarding or muscle spasm. There was no ankylosis. The neurological examination revealed no abnormalities other than inconsistent responses on upper and lower extremities to pinprick and light touch. There were no incapacitating episodes during the past 12 month period. On November 2011 VA examination, the Veteran indicated that flare-ups impacted the function of the lumbar spine. More specifically, he reported that he had pain flare-ups when lifting moderate to heavy objects. Range of motion studies revealed forward flexion to 50 degrees with pain at 50 degrees, extension to 15 degrees with pain at 15 degrees, bilateral flexion and rotation to 25 degrees with pain 25 degrees. There was no additional limitation of motion after three repetitions. After repetitive motion, functional impairment was manifested by less movement than normal and pain on movement. There was pain at paravertebral muscles upon palpation. He had guarding or muscle spasm severe enough to result in abnormal gait. Neurological examination was normal. He did not have radicular pain or any other signs or symptoms due to radiculopathy. No other neurological abnormalities were found. The examiner found that the Veteran did not have intervertebral disc syndrome. He regularly used crutches to assist with locomotion. Arthritis was shown on x-ray examination. The examiner reported that he Veteran thoracolumbar spine condition impacted the Veteran's ability to work. The Veteran must avoid carrying, lifting, and twisting in a sedentary job. In a January 2012 addendum, the examiner noted that there was no additional loss due to weakness, fatigue, and incoordination to include during flare-ups. Upon review of the evidence pertaining to the Veteran's lumbar myositis, the Board has determined that the currently assigned 20 percent evaluation is appropriate. In this regard, the Board notes that a higher evaluation requires forward flexion of the thoracolumbar spine to 30 degrees or less, ankylosis, or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the last twelve months. The evidence shows that at its worst the Veteran had flexion of the thoracolumbar spine to 50 degrees with pain at 50 degrees on November 2011 VA examination. Repetitive movement had no impact on range of motion, weakness; fatigue, endurance, and incoordination on examination. In regards to functional limitation, on November 2011 VA examination, the Veteran did have functional loss or impairment following repetitive-use testing manifested by less movement than normal and pain on movement. Additionally on January 2006 VA examination, he reported that precipitating factors included a cloudy or rainy days as well as prolonged standing, sitting, or overhead activities exacerbated pain. On May 2008 VA examination, he was not able to participate in activities that involved running and jumping. He was not able to do yard chores such as mowing the lawn, painting, and climbing a ladder. He was able to drive short distances to run errands. He did not do yard or household chores due to back pain. The thoracolumbar spine condition impacted his ability to work in that must avoid carrying, lifting, and twisting in a sedentary job. See November 2011 VA examination report. Also on January 2006 VA examination, he reported that he used to work as a construction worker, but had to quit that job due to pain in the lumbosacral spine and hip. He reported that he was looking for other type of employment. The Board accepts that the Veteran has functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of constant pain to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant the next higher evaluation. Here, the Veteran retains a significant amount of motion. Further, repetitive exercise did not change the ranges of motion. Additionally, there was no evidence of thoracolumbar ankylosis, especially in light of the Veteran's ranges of motion. Also, the May 2008 VA examiner specifically reported that there was no ankylosis. As such, the Board finds that the currently assigned 20 percent evaluation is appropriate for the Veteran's low back disability. On January 2006 VA examination, the Veteran denied being hospitalized due to lumbosacral intervertebral disc syndrome during the last year and bed rest was not recommended or any other specific accommodations. On May 2008 VA examination, the examiner indicated that there were no incapacitating episodes during the past 12 months. On November 2011 VA examination, the examiner specifically found that the Veteran did not have intervertebral disc syndrome. Therefore, a higher 40 percent evaluation for incapacitating episodes having a total duration of at least 4 weeks but less than 6weeks during the previous 12 months is not warranted. The current evaluation contemplates forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Careful review of the record leads the Board to conclude that the Veteran's symptoms during the appeal period prior to November 29, 2011 are addressed by the currently assigned 10 percent evaluation. The Board notes that the Veteran is competent to report that his disability is worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluation for the Veteran's low back disability is appropriate. The evidence preponderates against a finding that an increased evaluation is warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ii. Cervical Myositis The Veteran's service-connected cervical myositis has been rated under Diagnostic Code 5237 for cervical strain. See 38 C.F.R. § 4.71a (2013). At the outset the Board notes that it has considered whether assignment of a separate evaluation for neurologic manifestations of a cervical spine disability is appropriate for any portion of the appeal period both prior to and from November 29, 2011. As previously discussed VA examinations on January 2006 and November 2011 showed normal neurological findings. The Board acknowledges that there were inconsistent responses on upper and lower extremities to pinprick and light touch on May 2008 VA examination. However, given the inconsistent nature of the responses to pinprick and light touch on the May 2008 VA examination, the Board finds this evidence less probative than the findings on the January 2006 and November 2011 neurological examinations that did not reflect any inconsistencies in the normal findings. Furthermore, no other neurological abnormalities were identified or suggested on the May 2008 VA examination report. In light of the absence of any other evidence of neurologic dysfunction at that or any other time prior to or from November 29, 2011, such isolated finding is not deemed a sufficient basis for an assignment of a separate rating for neurologic manifestations in this case, even for a portion of the appeal. a) Prior to November 29, 2011 On January 2006 VA examination, the Veteran reported pain at the paravertebral muscles of the lumbosacral area that was no radiating. Pain affected him for two to three hours. He reported flare-ups with a severity of 9/10 affecting him at least two or three times per month with duration of two to three hours. He reported that precipitating factors included a cloudy or rainy days as well as prolonged standing, sitting, or overhead activities exacerbated pain. He took medication and hot showers for alleviation. He denied additional limitation of motion during flare-ups. He did not use any assistive devices. Physical examination revealed that forward flexion was 0 to 45 degrees; extension was 0 to 45 degrees; bilateral lateral flexion were each 0 to 45 degrees; and lateral rotation were each 0 to 80 degrees. The examiner further explained that forward flexion, extension, and bilateral lateral flexion were each 0 to 45 degrees with no pain or functional loss. Bilateral lateral rotation were each 0 to 80 degrees, pain free, and no functional loss. Repetitive motion elicited some pain on the fifth attempt without any evidence of weakness, fatigue, incoordination, or further functional loss. There was tenderness upon palpation at the paravertebral muscles of the cervicodorsal area without spasms or guarding. An inspection of the cervical area was negative for any ankylosis, abnormal kyphosis, reversed lordosis, or scoliosis. On neurological examination, no neurological abnormalities were demonstrated. On May 2008 VA examination, the Veteran repo that he did not have radiating neck pain. He was independent in his activities of daily living. During a flare-up, there was decreased limitation of neck motion due to neck pain. Physical examination revealed that he was erect in posture, there was adequate alignment of the head over the trunk, symmetry in appearance and symmetry in rhythm of spinal motion. The range of motion of the cervical spine revealed that flexion, extension, and bilateral lateral flexion were each to 40 degrees. Bilateral lateral rotation were each to 60 degrees Pain was present in flexion from 30 to 40 degrees, extension from 30 to 40 degrees, bilateral later flexion form 30 to 40 degrees, and bilateral lateral rotation form 5 to 60 degrees. Repetitive motion revealed that he was additionally limited by pain, but not additionally limited by fatigue, weakness, lack of endurance, and incoordination. Functional limitations were present in flexion, extension, and bilateral lateral flexion from 40 to 45 degrees as well as in bilateral lateral rotation from 60 to 80 degrees. There was tenderness to palpation at C5, C6, and C7 paravertebral muscles. There was no ankylosis. The neurological examination revealed no abnormalities other than inconsistent responses on upper and lower extremities to pinprick and light touch. There were no incapacitating episodes during the past 12 month period. Upon review of the evidence pertaining to the Veteran's cervical myositis, the Board has determined that the currently assigned 10 percent evaluation for the appeal period prior to November 29, 2011, is appropriate. In this regard, the Board notes that a higher evaluation under the General Rating Formula requires forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The evidence shows that at its worst the Veteran had flexion of the cervical spine to 40 degrees with pain at 30 degrees on May 2008 VA examination. On January 2006 and May 2008 VA examinations, repetitive movement had no impact on range of motion, weakness; fatigue, endurance, and incoordination. On the May 2008 VA examination, the examiner noted that the Veteran was additionally limited by pain. In regards to functional limitation, the Veteran did have functional loss or impairment following repetitive-use in flexion, extension, and bilateral lateral flexion from 40 to 45 degrees as well as in bilateral lateral rotation from 60 to 80 degrees. Additionally, the Veteran reported that during a flare-up, there was decreased limitation of neck motion due to neck pain. His combined range of cervical motion was 340 degrees on January 2006 VA examination and 280 degrees on May 2008 VA examination. While, there was tenderness upon palpation at the paravertebral muscles of the cervicodorsal area, there was no evidence of an abnormal gait or abnormal spinal contour. The Veteran reported on May 2008 VA examination that he was not able to participate in activities that involved running and jumping. He was not able to do yard chores such as mowing the lawn, painting, and climbing a ladder. He was able to drive short distances to run errands. He did not do yard or household chores due to back pain. Also on January 2006 and May 2008 VA examinations, he reported that he used to work as a construction worker, but had to quit that job due to pain in the neck, low back and hip. The Board accepts that the Veteran has functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of constant pain to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant the next higher evaluation. Here, the Veteran retains a significant amount of motion. Further, repetitive exercise did not change the ranges of motion. Additionally, there was no evidence of cervical ankylosis, especially in light of the Veteran's ranges of motion. Also, the May 2008 VA examiner indicated that there was no ankylosis of the cervical spine. As such, the Board finds that the currently assigned 10 percent evaluation is appropriate for the Veteran's cervical spine disability for the appeal period prior to November 29, 2011. On January 2006 VA examination, the Veteran denied being hospitalized due to lumbosacral intervertebral disc syndrome during the last year and bed rest was not recommended or any other specific accommodations. On May 2008 VA examination, the examiner indicated that there were no incapacitating episodes during the past 12 months. Therefore, a higher 20 percent evaluation for incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the previous 12 months is not warranted. The current evaluation contemplates forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Careful review of the record leads the Board to conclude that the Veteran's symptoms during this period are addressed by the currently assigned 10 percent evaluation. The Board notes that the Veteran is competent to report that his disability is worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluation for the Veteran's cervical spine disability is appropriate. The evidence preponderates against a finding that an increased evaluation is warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). b). From November 29, 2011 Upon review of the evidence pertaining to the Veteran's cervical myositis, the Board has determined that the currently assigned 20 percent evaluation is appropriate for the appeal period from November 29, 2011. In this regard, the Board notes that a higher evaluation under the General Rating Formula requires forward flexion of the cervical spine 15 degrees or less or ankylosis. The evidence shows that on November 2011 VA examination, range of motion testing revealed forward flexion to 35 degrees with pain at 25 degrees, extension to 20 degrees with pain at 20 degrees, bilateral lateral flexion to 15 degrees with pain at 10 degrees, and bilateral lateral rotation to 70 degrees with pain at 60 degrees. On repetitive motion forward flexion was to 35 degrees, extension to 20 degrees, bilateral lateral flexion was to 15 degrees and bilateral lateral rotation to 70 degrees. There was no additional limitation in range of motion following repetitive-use testing. He had functional loss or impairment manifested by less movement than normal and pain on movement. In a January 2012 addendum, the examiner noted that there was no additional loss due to weakness, fatigue, and incoordination to include during flare-ups. On November 2011 VA examination, the Veteran reported that flare-ups impacted the function of the cervical spine. He reported that he felt more pain during physical activities during flare-ups. There was tenderness to pain or palpation. There was guarding and/or muscle spasm of the neck; however, it did not result in abnormal gait or spinal contour. The VA examiner indicated that the Veteran's cervical spine condition impacted his ability to work. The Veteran must avoid carrying, lifting, and twisting in a semi-sedentary job. The Board accepts that the Veteran has functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of constant pain to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant the next higher evaluation. Here, the Veteran retains a significant amount of motion. Further, repetitive exercise did not change the ranges of motion. Additionally, there was no evidence of cervical ankylosis, especially in light of the Veteran's ranges of motion. As such, the Board finds that the currently assigned 20 percent evaluation is appropriate for the Veteran's cervical spine disability for the appeal period from November 29, 2011. On November 2011 VA examination, the examiner specifically found that the Veteran did not have intervertebral disc syndrome of the cervical spine. Therefore, a higher 40 percent evaluation for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the previous 12 months is not warranted. The current evaluation contemplates forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Careful review of the record leads the Board to conclude that the Veteran's symptoms during this period are addressed by the currently assigned 20 percent evaluation. The Board notes that the Veteran is competent to report that his disability is worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluation for the Veteran's cervical spine disability is appropriate. The evidence preponderates against a finding that an increased evaluation is warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. Right Hip Trochanteric Bursitis The Veteran essentially contends that he is entitled to an initial rating in excess of 10 percent for right hip trochanteric bursitis. The Veteran's service-connected right hip and thigh disability is rated as 10 percent disabling under Diagnostic Code 5251, which is applicable to limitation of extension of the thigh. He has also been assigned a noncompensable rating under Diagnostic Code 5252, which is applicable to limitation of flexion of the thigh. A normal range of motion in the hip is flexion to 125 degrees and abduction to 45 degrees. See 38 C.F.R. § 4.71a, Plate II (2013). Under Diagnostic Code 5251, applicable to limitation of extension of the thigh, a 10 percent disability rating is warranted when extension of the thigh is limited to 5 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5251 (2013). A 10 percent rating is the highest available under Diagnostic Code 5251. Under Diagnostic Code 5252, applicable to limitation of flexion of the thigh, a 10 percent disability rating is warranted when flexion of the thigh is limited to 45 degrees; a 20 percent disability rating is warranted when flexion of the thigh is limited to 30 degrees; a 30 percent disability rating is warranted when flexion of the thigh is limited to 20 degrees; and a 40 percent disability rating is warranted when flexion of the thigh is limited to 10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2013). Under Diagnostic Code 5253, applicable to impairment of the thigh, a 10 percent disability rating is warranted for limitation of rotation of the thigh such that the affected leg cannot toe-out more than 15 degrees; a 20 percent rating is warranted when adduction of the thigh is limited such that the legs cannot be crossed; and a 30 percent rating is assigned for limitation of abduction of the thigh when motion is lost beyond 10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5253 (2013). Turning to the facts in the instant case, on January 2006 VA examination, the Veteran reported that he had pain of 6/10 accompanied by some fatigability and lack of endurance for ambulation due to pain. He reported that he had flare-ups of joint disease on a weekly basis or monthly with duration of one to three hours. He reported that prolonged sitting, standing, cloudy, or rainy days exacerbated pain. He denied any additional limitation during flare-ups. There were no constitutional signs or symptoms for inflammatory arthritis. He used to work in construction, but due to hip and lumbosacral pain he was unable to perform such activities. He was looking for a job. Range of motion of the right hip revealed forward flexion form 0 to 125 degrees, with pain in the last 10 degrees and no functional loss. Extension was from 0 to 30 degrees with no pain and no functional loss. Adduction was from 0 to 25 degrees with no pain and no functional loss. Abduction was from 0 to 45 degrees with pain in the last 20 degrees and no functional loss. External rotation was from 0 to 60 degrees with pain from 30 to 60 degrees and no functional loss. Internal rotation was from 0 to 40 degrees with pain in the last 10 degrees and no functional loss. There was tenderness to palpation in the right hip, specifically the right trochanteric area. On repetition, he developed pain without weakness, fatigue, or incoordination. There was not any evidence of functional impairments or deficits on repetition. The examiner noted that there was no evidence of effusion, edema, or redness. There was not any evidence of callosities, breakdown, or unusual show of wear pattern. Ankylosis was not present. There was no leg discrepancy or constitutional signs or symptoms of inflammatory arthritis. On May 2008 VA examination, the Veteran had complaints of intermittent sharp pain that increased with walking, standing, and stair climbing. Range of motion studies revealed that forward flexion was to 120 degrees with pain at 120 degrees, external rotation was to 55 degrees with pain at 55 degrees, and internal rotation was to 35 degrees with pain at 35 degrees. The Veteran was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination during repetitive motion. There were no functional limitations of the right hip. There was no swelling, no rubor, and no calor right hip joint. Log roll and Patrick's tests were negative. There was tenderness to palpation of the lateral right great trochanteric. He walked with Canadian crutches with equal step length and normal cadence. Ankylosis was not present. A July 2008 VA treatment record reveals that the Veteran underwent physical therapy for his right hip pain. On November 2011 VA examination, the Veteran denied having flare-ups that impacted the function of the right hip and/or thigh. Range of motion studies revealed that forward flexion was to 125 degrees with pain at 120 degrees and extension as greater than 5 degrees with pain at 5 degrees. Abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited to such that he could not toe-out more than 15 degrees. There was no additional limitation of motion on repetitive motion. Functional loss and/or impairment was manifested by pain on movement. There was tenderness or pain on palpation. There was normal strength. Ankylosis was not present. He did not have malunion or nonunion of the femur, flail hip joint or leg length discrepancy. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to any condition. He used crutches for locomotion for his back condition. Arthritis has not been documented. The examiner indication that the Veteran's right hip/thigh condition impacted employment in that the Veteran must avoid carrying, lifting, and twisting, in a semi-sedentary job. In a January 2012 addendum, the examiner noted that there was no additional loss due to weakness, fatigue, and incoordination to include during flare-ups. The competent and probative evidence indicates the Veteran's right hip disability is manifested by complaints of pain and slight limitation of motion. The evidence of record, however, does not indicate range of motion warranting an initial rating in excess of 10 percent under Diagnostic Codes 5251, 5252 or 5253. See 38 C.F.R. § 4.71a, Diagnostic Code 5251-5153 (2013). The Board notes that the Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 5251; this rating is the highest available for limitation of extension of the thigh under that diagnostic code. Thus, no higher rating is available under Diagnostic Code 5251. See 38 C.F.R. § 4.71a, Diagnostic Code 5251 (2013). This is so for the entirety of the appellate period. Further, even taking pain into account, the Veteran's flexion has never been limited to 45 degrees or fewer; a compensable rating under Diagnostic Code 5252, therefore, is not available. See 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2013). Finally, the Veteran's abduction is not limited to 10 degrees, nor has he ever complained of an inability to cross his legs, nor does he have an inability to toe-out more than 15 degrees; a compensable rating under Diagnostic Code 5253, therefore, is not available. See 38 C.F.R. § 4.71a, Diagnostic Code 5253 (2012). The Board has also considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. See 38 C.F.R. § 4.40 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability, and incoordination. See 38 C.F.R. § 4.45 (2013). Although the Board accepts the Veteran's competent and credible assertions that his right hip disability causes fatigability and lack of endurance for ambulation due to pain, the Board has taken this into account in its above discussion of range of motion. The rating schedule does not require a separate rating for pain itself. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Furthermore, even when the Veteran's complaints of pain, fatigability and lack of endurance are considered, the manifestations of his right hip disability do not approximate the symptomatology associated with higher ratings under any Diagnostic Code. January 2006 and May 2008 VA examination reports specifically noted that there was no functional loss/impairment. However, even considering the November 2011 VA examiner's findings that functional loss and/or impairment was manifested by pain on movement, a higher evaluation based on functional loss due to pain is still not warranted. Also, the November 2011 VA examiner found that the Veteran did not have malunion or nonunion of the femur, flail hip joint or leg length discrepancy. Ankylosis was not present on January 2006, May 2008, and November 2011 VA examinations. As ankylosis, flail hip joint, fracture of shaft, anatomical neck, or surgical neck of femur with nonunion or malunion have not been alleged nor shown, ratings under Diagnostic Codes 5250 (ankylosis), 5254 (Hip, flail joint), and 5255 (impairment of femur) are not warranted. In sum, the Board finds that an evaluation in excess of 10 percent for a right hip trochanteric bursitis is not available at any time during the period on appeal. C. Extraschedular Considerations Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria under the Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, and the assigned schedular evaluation is adequate, and no referral is required. See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996) (when service-connected disability affects employment "in ways not contemplated by the rating schedule[,]" § 3.321(b)(1) is applicable). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disability ratings for lumbar myositis, cervical myositis, and right hip trochanteric bursitis inadequate. The Veteran's lumbar and cervical myositis are evaluated under to 38 C.F.R. § 4.71a, Diagnostic Code 5237, and his right hip trochanteric is evaluated under38 C.F.R. § 4.71a, Diagnostic Codes 5251 and 5252, the criteria of which is found by the Board to encompass the Veteran's level of disability and symptomatology. As noted above, the Veteran's lumbar myositis has been manifested by forward flexion ranging from 50 to 90 degrees and guarding or muscle spasm severe enough to result in abnormal gait. For the appeal period prior to November 29, 2011, his cervical myositis has been manifested by forward flexion between 40 and 45 degrees, a combined range of motion from 280 to 340 degrees, and localized tenderness not resulting in abnormal gait or abnormal spinal contour. From November 29, 2011, his cervical myositis has been manifested by forward flexion of 35 degrees, a combined range of motion of 225 degrees, and localized tenderness with guarding and/or spasm, not resulting in abnormal gait or abnormal spinal contour. His right hip trochanteric bursitis is manifested by complaints of pain and slight limitation of motion throughout the appeal period. When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability ratings for his lumbar and cervical myositis as well as his right hip trochanteric bursitis. A rating in excess of the currently assigned ratings is provided for lumbar and cervical myositis as well as his right hip trochanteric bursitis, but the medical evidence reflects that those manifestations are not present in this case. The Bard notes that the evidence shows that the Veteran's lumbar and cervical myositis as well as his right hip/thigh condition impacted employment in that he must avoid carrying, lifting, and twisting, in a semi-sedentary job. The Veteran also indicated that he had to quite his construction job in relation to neck, low back, and hip pain. However, the percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2013). The rating criteria also take into account the pain, limitation of function and effects on employment, including any considerable loss of working time from exacerbations or illnesses. The criteria for a 20 percent rating for lumbar myositis, a 10 percent rating prior to November 29, 2011 and a 20 percent rating from that date for cervical myositis, and a 10 percent rating for the Veteran's right hip trochanteric more than reasonably describe the Veteran's disability levels and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required. See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996); see also 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5251, and 5252. ORDER A higher initial rating for lumbar myositis, currently rated as 20 percent disabling, is denied. A higher initial rating for cervical myositis, currently rated as 10 percent disabling prior to November 29, 2011 and 20 percent disabling from that date, is denied. A higher initial rating for right hip trochanteric bursitis, currently rated as 10 percent disabling, is denied. REMAND The Court has held that entitlement to a TDIU is an element of initial ratings. Rice v. Shinseki, 22 Vet. App. 447 (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); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). Multiple VA examinations noted the Veteran's reports of quitting his construction job as a result of neck, low back, and hip pain. November 2011 VA examination reports also indicated that the Veteran's lumbar and cervical myositis as well as his right hip/thigh condition impacted employment in that he must avoid carrying, lifting, and twisting, in a semi-sedentary job. The issue of TDIU is raised as part of the increased rating claim and is included as part of the appeal. Rice; Roberson. The Veteran is presumed to be seeking the highest rating possible, and there is evidence of a medical disability. Thus, given the evidence of a medical disability, the claim for the highest rating possible, and evidence of unemployability, the record raises a claim for a TDIU under Roberson and Rice and the issue is properly before the Board as part of the appeal for increased ratings for lumbar and cervical myositis as well as right hip trochanteric bursitis disabilities. The Court has held that in the case of a claim for TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the Veteran's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). There is no explicit opinion as to whether the Veteran's service-connected conditions of lumbar and cervical myositis as well as right hip trochanteric bursitis are sufficient to preclude gainful employment. The Veteran's percentage ratings do not currently meet the scheduler requirements for a TDIU under 38 C.F.R. § 4.16(a) (2013). Nevertheless, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2013). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete a formal application for TDIU. 2. Arrange for the Veteran claims file, including any relevant records in Virtual VA, and a copy of this remand to be reviewed by the VA examiner who previously examined the Veteran in November 2011. If the prior November 2011 VA examiner is unavailable, then forward the request to an appropriate VA examiner. The VA examiner should opine as to whether the Veteran's service-connected disabilities (generalized anxiety, lumbar myositis, cervical myositis, right hip trochanteric bursitis with thigh limitation of extension and flexion, hypertension, migraine headaches, bronchitis and rhinitis, as well as right elbow epicondylitis) in combination render him incapable of substantially gainful employment for which his education and occupational experience would qualify him. Reasons for all opinions must be provided. 3. If, after completion of the above instructions, there is any period when the Veteran was unemployed and did not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a), the AOJ should refer the case to VA's Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). 4. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if 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 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). ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs