Citation Nr: 1331437 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 12-00 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a rating higher than 10 percent for herniated nucleus pulposus (HNP) at L5-S1 with stenosis, i.e., for a low back disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from June 1993 to June 1999. This appeal to the Board of Veterans' Appeals (Board/BVA) originated from his June 2008 claim for a higher rating for his low back disability. The Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, denied his claim in a February 2009 rating decision. In October 2009, in response, he again requested an increased rating for his low back disability. Read liberally, that statement amounted to a timely Notice of Disagreement (NOD) with the RO's decision denying a higher rating for this disability since the RO received it within one year of denying his initial increased-rating claim. 38 C.F.R. § 20.201 (2013). See also Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming the claimant desired appellate review, meeting the requirement of § 20.201 was not an onerous task). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that "no procedural requirement in the adjudication of Veterans benefits is less burdensome than the NOD ... finding that a statement constitutes an NOD merely requires finding terms that can be reasonably construed as a desire for appellate review." See Ortiz v. Shinseki, 23 Vet. App. 353, 358 (2010) (rev'd on other grounds by sub nom. Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011)). Absent that, consider also that the statement alternatively constitutes lay evidence that his disability continued to worsen, which would constitute new and material evidence as to the recently denied claim. New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Since it was received within the one-year appellate period after the February 2009 rating decision, that decision did not become a final and binding determination, and therefore the June 2008 claim is still pending. Id. After relocating, the RO in Indianapolis, Indiana, again denied the Veteran's claim for an increased rating for his low back disability in a July 2010 rating decision. So the RO in Indianapolis, rather than the RO in Denver, certified this appeal to the Board. But for the reasons already discussed, it is the RO in Denver's prior decision in February 2009 from which the Board's jurisdiction in this appeal actually derives. Additionally, the Board finds that the Veteran has filed an inferred claim for a TDIU. In order for a TDIU claim to be raised by inference, a claimant must submit evidence of a medical disability, make a claim for the highest rating possible, and submit evidence of unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Further, where evidence of unemployability is submitted in connection with the appeal of an assigned disability rating, a claim for a TDIU will be inferred as "part and parcel" of the underlying increased-rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased-compensation claims apply to a TDIU claim). But there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Here, the Veteran indicated during his March 2010 VA compensation examination in connection with his claim for a higher rating for his low back disability that he was then currently not working because of this service-connected disability. Therefore, he has raised a derivative claim of entitlement to a TDIU, allowing the Board to assume jurisdiction over this additional claim. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (A TDIU claim is not raised unless the Roberson requirements are met.). Since, however, this derivative TDIU claim has not been initially considered by the RO as the Agency of Original Jurisdiction (AOJ) and requires further development before being decided, the Board is remanding it to the RO via the Appeals Management Center (AMC). VA's Office of General Counsel has indicated that remanding the derivative TDIU claim in this circumstance does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability forming the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). FINDINGS OF FACT 1. The manifestations of the Veteran's low back disability are pain and painful motion, including during flare ups and after repetitive motion, albeit still with forward flexion to greater than 60 degrees and a combined range of motion (when also considering backward extension, right and left lateral flexion and right and left rotation) to greater than 120 degrees. As well, there are no muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contours, and no ankylosis. 2. There are no incapacitating episodes having a total duration of at least two weeks but less than four weeks during a twelve-month period. 3. There are no associated objective neurologic abnormalities. 4. His disability picture and symptomatology are contemplated by the Rating Schedule. CONCLUSION OF LAW The criteria are not met for a rating higher than 10 percent for his low back disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.71a, Diagnostic Codes 5235-5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist VA has met all statutory and regulatory notice-and-duty-to-assist obligations as concerning this increased-rating claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants notice and assistance in substantiating their claims. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of the information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). See also Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining the VCAA's notice requirements). When the claim is for service connection, these notice requirements apply to all five elements of the claim: (1) Veteran status, (2) existence of a disability, (3) a connection between the disability and service, but also the "downstream" (4) disability rating and (5) effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Here, though, the claim did not arise in this context, instead, as a claim for a higher rating for an already established service-connected disability. And to this end, the Veteran was advised in an August 2008 letter of the evidence and information necessary to substantiate this increased-rating claim (i.e., of the requirement to have evidence indicating his disability had worsened), and of his and VA's respective responsibilities in obtaining this necessary evidence. Moreover, although no longer strictly required, the letter also advised him of the relevant diagnostic code criteria and potential "daily life" evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (vacating Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), to the extent that it had required more than "generic notice"). Consider also that the RO sent him that letter before initially adjudicating his claim in February 2009, so in the preferred sequence. See Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). He therefore has received all required notice concerning this claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). B. Duty to Assist VA has a duty to assist the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO resultantly obtained and associated with the file for consideration the Veteran's service treatment records, VA treatment records, and private treatment records. He has not identified any other government or private records that have a bearing on this claim. Therefore, VA has satisfied its duty to assist him in obtaining pertinent records. VA's duty to assist also includes, when appropriate, the obligation to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). And in the disability-rating context, when the evidence of record does not reflect the current state of his disability, a VA examination must be performed reassessing the severity of the disability. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The RO provided the Veteran an appropriate VA examination in March 2010. There is no argument or indication that an increase in severity of his disability has occurred since that examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). So another examination is not needed, especially since there is sufficient evidence in the file to address the applicable rating criteria. Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995). The examination report, when considered along with the other evidence of record, provides the information needed to address the applicable rating criteria. The duty to assist does not require that a claim be remanded solely because of the mere passage of time since an otherwise adequate VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). The March 2010 VA examination report is sufficiently thorough and, along with the other evidence, an adequate basis on which to adjudicate this claim. Therefore, VA also has satisfied its duty to assist in this other respect. II. Merits of the Claim A. Increased Schedular 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. All reasonable doubt material to the determination is resolved in his favor. 38 C.F.R. § 4.3. Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in assessing the present level of disability, a "staged" rating may be assigned if the factual findings show distinct time periods when the service-connected disability has exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus is from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. See 38 U.S.C.A. § 5110(b)(2) ; 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). Here, then, since the Veteran filed this increased-rating claim in June 2008, the Board must consider the state of his disability since June 2007, the immediately preceding year. If it was factually ascertainable that an increase in rating was warranted during that immediately preceding year, then the effective date of the higher rating, if granted, may go back to the date when the increase was shown, even if preceding the actual filing of the increased-rating claim. Harper v. Brown, 10 Vet. App. 125, 126 (1997). His low back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, which concerns intervertebral disc syndrome (IVDS). IVDS can be evaluated in one of two ways. It can either be evaluated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or according to the Formula for Rating IVDS Based on Incapacitating Episodes (Incapacitating Episodes Formula). When rating according to the General Formula, any associated objective neurologic abnormalities are rated separately under their respective diagnostic codes. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). As discussed below, however, the Veteran does not meet the requirements for a schedular increase under either formula, nor are there any associated neurologic abnormalities needing to be rated separately. 1. General Formula The existing 10 percent rating is assigned when forward flexion of the thoracolumbar (thoracic and lumbar) spine is greater than 60 degrees but not greater than 85 degrees, or the combined range of motion for the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or there is vertebral body fracture with loss of 50 percent more in height. 38 C.F.R. § 4.71a, Diagnostic Code 5243, General Formula. A higher 20 percent rating requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion not greater than 120 degrees. Id. A rating of 20 percent can also be attained if muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour are present. Id. The General Formula applies for rating purposes 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. Id. Any associated neurologic abnormalities must be rated separately. Id., at Note (1). For the purposes of rating, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id., at Note (2). Thus, the normal combined range of motion for the thoracolumbar spine is 240 degrees. Id. In rating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or on account of weakness, fatigability, incoordination, or pain on movement of a joint. See DeLuca v. Brown, 8 Vet. App. 202, 207 (1995); 38 C.F.R. §§ 4.40, 4.45. However, pain, on its own, is insufficient to constitute functional loss. Mitchell v. Shinseki, 25. Vet. App. 32 (2011). It is relevant when the pain results in additional functional loss. See id.; DeLuca, 8 Vet. App. 202. As already alluded to, the Veteran was provided a VA examination in March 2010. He had forward flexion of his thoracolumbar spine to 80 degrees and a combined range of motion of 230 degrees. He stated that he experienced pain during the test, but did not report any fatigue, weakness, lack of endurance, or lack of coordination. There was no additional functional loss after repetitive testing. The examiner did not find any muscle spasms or abnormal curvatures of the spine and the Veteran's gait was described as normal. There also was no ankylosis. A 40 percent evaluation is warranted under the General Formula when 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 (meaning when additionally considering the adjacent cervical segment). See id. 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. See id., Note (1). The Veteran does not have either favorable or unfavorable ankylosis of any segment of his spine (cervical or thoracic and lumbar (thoracolumbar)). Aside from the definition already provided in the General Formula, consider also that ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The mere fact that the Veteran continues to have range of motion, even if less than normal range of motion, by definition means his spine is not ankylosed. The VA examination also addressed the criteria of Diagnostic Code 5243 and noted his complaints of pain and how they affect his work and daily life. See Wisch v. Brown, 8 Vet. App. 139 (1995). Therefore, the Board finds that the examination provided was adequate and that it is probative of the current status of his disability. In opposition to the findings and results of that VA compensation examination, the Veteran has submitted reports from a chiropractor indicating a more limited range of motion than shown during the VA examination. However, the scale for measuring range of motion used by the chiropractor in the testing is inconsistent with the scale utilized in the Rating Schedule. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, General Formula, Note (2). There is no indication as to how to accurately compare or convert the results of the chiropractor's examination so the numbers coincide with the Rating Schedule. Thus, these results are not probative of the extent of the Veteran's range of motion as measured by the Rating Schedule and, therefore, entitled to little-to-no weight. The Veteran also made statements regarding persistent back pain, which he is competent to report. See, e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). There equally is nothing in the record indicating his account of this chronic pain is not also credible. In particular, he reported pain being present during flare-ups, which occur approximately once a week. However, as already explained, mere pain alone is insufficient to justify an increase in rating for a disability. Mitchell, 25. Vet. App. 32. He is still able to substantially perform his work duties, and the pain he experiences has not significantly altered his day-to-day routines, such as getting dressed. He is able to ease the stiffness and pain in his back through a regimen of stretches in the morning. He also stated that the back brace he has been provided provides at least some relief from his symptoms. His descriptions of his symptoms, particularly the flare-ups, are probative of the current level of severity. Nevertheless, his lay statements alone do not evidence a consequent restriction of his forward flexion to 60 degrees or less, combined range of motion of 120 degrees or less, or muscle spasms or guarding resulting in abnormal gait or contour due to pain or other factors during flare-ups or with repetitive or prolonged use. The intent of the Rating Schedule is to recognize painful motion with joint or particular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, not just to those specifically affected by arthritis). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). But not only that, to reiterate, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable under the applicable diagnostic code (DC). The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 (pertaining to arthritis), it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id., at 43. As such, the Veteran's mere complaints of chronic pain, including with activity, do not rise to the level of the next higher. See General Formula. In addition, there are no objective neurologic abnormalities, and therefore there are no separate neurologic ratings required. The Veteran has made no lay statements regarding symptoms that could be interpreted as neurologic abnormalities, and none were observed during his March 2010 VA examination. The only indication of neurologic abnormalities is found in a December 2006 chiropractor's note, which diagnosed lumbar neuritis and radiculitis. This finding was based on a straight leg raise test where the Veteran experienced mild pain at 35-to-70 degrees of elevation. However, during a follow-up visit in July 2007, the same test conducted by the same chiropractor resulted in negative results for pain. And, as mentioned, there also was no such indication during his VA compensation examination. Therefore, he is not shown to be suffering from any neurologic abnormalities associated with his low back disability, so there are none to rate, including as an example under DC 8520 that concerns complete/incomplete paralysis of the sciatic nerve. Since the Veteran does not have any of the manifestations necessary for the next higher rating level under the General Formula, or a separate rating for objective neurological abnormalities, he has not shown entitlement to a rating higher than 10 percent. 2. Incapacitating Episodes Formula The Veteran's low back disability also as mentioned can be rated using the Incapacitating Episodes Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. This formula allows for a rating of 20 percent if there have been incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. For the purposes of this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The Veteran made some statements indicating that the pain in his back forces him to lie down on occasion. However, he has made no statements indicating that acute back pain has required him to visit and receive treatment from a physician, or that he has been prescribed bed rest. There are no medical records in the file indicating he was ever prescribed bed rest due to acute episodes of back pain. Further, there is no lay or medical evidence showing that, even if bed rest was prescribed, the episodes totaled between two and four weeks over the past twelve months. Since he does not have any of the manifestations necessary for the next highest rating under the Incapacitating Episodes Formula, he also has not shown entitlement to a rating higher than 10 percent under this alternative formula. 3. Schedular Rating Conclusion An increase in disability rating is not warranted in this case under either the General Formula or the Incapacitating Episodes Formula. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation exceeding the currently assigned rating for the Veteran's low back disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). A "staged" rating is not warranted, either, as the Veteran has had a relatively stable level of symptomatology since the year immediately preceding the filing of this increased-rating claim. See Hart, 21 Vet. App. at 509-10. B. Extra-schedular Consideration In considering this claim for a higher rating for this low back disability, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. See Barringer v. Peake, 22 Vet. App. 242 (2008). Where the schedular evaluation is found to be inadequate, the case may be referred to the Under Secretary for Benefits or the Director of Compensation. See 38 C.F.R. § 3.321(b)(1). When considering a referral for extraschedular rating, a three-step test must be applied. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Id. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is adequate, and no referral is required. See id. If the schedular evaluation is inadequate, then the second inquiry is whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms" - namely, frequent periods of hospitalization or marked interference with employment. Id. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation to determine whether, to accord justice, an extraschedular rating is warranted. Id. Here, the Veteran's disability picture is sufficiently contemplated by the Rating Schedule. His disability and symptomatology were adequately described in the rating criteria found in the General Formula. He has complained of pain in his back, and how that pain has limited his range of motion. The General Formula specifically takes into account limited range of motion in particular directions and in total, and therefore directly contemplates his symptomatology and disability picture. Since the first element of the Thun test is not met, consideration of the second and third elements is unnecessary, and referral for extraschedular evaluation is unwarranted. ORDER The claim of entitlement to a rating higher than 10 percent for the low back disability is denied. REMAND The Board already has discussed why there is an additional TDIU claim also at issue in this appeal. In particular, the Veteran has alleged that his low back disability has kept him from working, and there is indication he is still unemployed. But there is very little information of record regarding his employment history and education level. In addition, he has not been provided the specific notice required in response to a claim for a TDIU, nor has the RO preliminarily adjudicated this derivative claim. It therefore would be potentially prejudicial were the Board to do so in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, this derivative TDIU claim is REMANDED for the following development and consideration: 1. Provide all required notice and assistance in response to this derivative TDIU claim, including providing the Veteran an official claim application (VA Form 21-8940). Have him complete and return it. Also complete any necessary further development of this claim, including, but not limited to, having the Veteran undergo a VA compensation examination for a medical opinion concerning whether his service-connected disabilities (namely, his low back disability that at present is rated as 10-percent disabling and tinnitus, also rated as 10-percent disabling) preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison when also considering his level of education, prior work experience and training, but not his age or impairment attributable to disabilities that are not service connected. 38 C.F.R. §§ 3.340. 3.341, 4.15, 4.16, 4.18, and 4.19. See also Friscia v. Brown, 7 Vet. App. 294, 297 (1994) (indicating a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal). See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). 2. Then adjudicate this derivative TDIU claim in light of this and all other relevant evidence. If this claim is denied, send the Veteran a Supplemental Statement of the Case (SSOC) addressing this derivative claim, and give him and his representative opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this derivative claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs