Citation Nr: 1334773 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-32 141A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE 1. Entitlement to an increased rating for a low back disorder, including degenerative disc disease through July 31, 2009, currently evaluated as 20 percent disabling. 2. What disability evaluation is warranted for a low back disorder, including degenerative disc disease, from August 1, 2009? 3. Whether a separate rating is warranted for other neurologic residuals associated with a low back disorder with including degenerative disc disease. 4. Entitlement to a total rating based on unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to September 1991. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from rating decisions of the VA Regional Office in St. Louis, Missouri that denied entitlement to an evaluation in excess of 20 percent for back muscle pain. The Veteran's appeal was certified to the Board by the New York, New York VA RO. At an August 2012 hearing before the undersigned the appellant raised the issue of entitlement to service connection for a right knee disorder secondary to a back disorder. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. The questions regarding what rating is warranted for a low back disorder from August 1, 2009, whether a separate rating is warranted for other neurologic residuals associated with a low back disorder, and entitlement to total disability evaluation based on individual unemployability due to service connected disorders are remanded to the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Between March 9, 2007 and July 29, 2009 the Veteran's low back disorder was manifested by a limitation of flexion to 10 degrees, but not by ankylosis. 2. Effective July 30, 2009, the appellant's service-connected low back disability is not manifested by the functional equivalent of forward flexion to 30 degrees or less, ankylosis, abnormal gait, abnormal kyphosis, or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for a low back disorder, including degenerative disc disease, were met from March 9, 2007 to July 29, 2009. 38 U.S.C.A. §§1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243 (2013). 2. The criteria for a rating in excess of 20 percent for a low back disorder, including degenerative disc disease, are not met from July 30, 2009. 38 U.S.C.A. §§1155, 5103, 5103A, 5107(b); 38 C.F.R. §§3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that the symptoms associated with his service-connected low back disorder are more disabling than reflected by the current 20 percent disability evaluation and warrant a higher rating. He testified in August 2012 to the effect that he engaged in multiple treatment modalities for relief of back pain, including physical therapy, professional massages, conventional and chiropractic treatment, and medication management but that his symptoms had gotten worse. He testified that his activities of daily living and recreational pursuits had been constrained a great deal because of chronic sharp pain and flare-ups, muscle spasm, radicular pain and restricted motion, and that he had to have help getting dressed at times. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claim. There is no issue as to providing an appropriate application form or the completeness of the application. VA appropriately notified the Veteran of the information and evidence needed to substantiate and complete the claim. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to evaluate the claim of entitlement to a higher rating for a low back disability through July 31, 2009. The examinations taken as a whole are adequate to render a determination as to the issue on appeal through the date specified. This question what evaluation is warranted for a low back disorder, including degenerative disc disease, from August 1, 2009 is being remanded for further development. There is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication through July 31, 2009. 38 C.F.R. § 3.159(c). As such, the claim is ready to be considered on the merits. Pertinent Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2013). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life and is based, as far as practicable, on average impairment of earning capacity in civil occupations. 38 U.S.C.A. §1155 (West 2002 & Supp. 2013); 38 C.F.R. §§4.1, 4.10 (2013). All diseases and injuries of the spine other than intervertebral disc syndrome are evaluated under the General Rating Formula for the spine (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013)). Under the General Rating Formula for the spine, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar to 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 (See also Plate V) provides that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension from zero to 30 degrees, left and right lateral flexion from zero to 30 degrees, and left and right lateral rotation from zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion is 240 degrees for the thoracolumbar spine. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as a condition in which the thoracolumbar 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 the neutral position (zero degrees) always represents favorable ankylosis. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately except when there is unfavorable ankylosis of both segments which will be rated as a single disability. Intervertebral disc syndrome (preoperatively or postoperatively) is to be rated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. §4.25 (2013) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. §4.71a, Diagnostic Codes 5235-5243. A 20 percent evaluation is assigned for intervertebral disc syndrome where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation is to be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 38 C.F.R. §4.71a, Diagnostic Code, Diagnostic Code 5243 (2013). For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly or nearly so. See 67 Fed.Reg. 54, 345, 54, 349 and Note (1) (codified at 38 C.F.R. §4.71a, Diagnostic Code 5243 and Note (1). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§4.71a, 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet.App. 303, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet.App. 7 (1996). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet.App. 589 (1995). However, separate evaluations may be assigned for separate periods based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet.App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet.App. 119, 126 (2001). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7 (2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt is resolved in favor of the claimant. 38 U.S.C.A. §5107 (b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.3 (2013). Factual Background A claim of entitlement to an increased rating for a low back disability was received in February 2007. VA outpatient records dating from 2006 reflect that the Veteran sought periodic treatment for back complaints among multiple other complaints pertaining to other disorders. In May 2006, it was reported that pain remained unchanged and that magnetic resonance imaging (MRI) revealed degenerative joint disease at L4-L5 for which physical therapy would be initiated. The appellant related that he had discomfort sleeping at night, with activity and sitting for prolonged periods. There were no radicular symptoms. The Veteran had normal gait and was able to walk on toes and heels and tandem walk. There was mild pain over the lumbar spine area. It was noted that he had pain with flexion but not extension. Sensation was intact. Right knee reflexes were 1+. Pain was reported as 5 on a 10 scale or 5/10. The assessment was degenerative joint disease of the lumbar spine at L3-L5 for which strengthening exercises, medication, activity limitations and a lumbosacral corset were prescribed. At a March 2007 VA examination the appellant described constant sharp stabbing pain that sometimes radiated to the upper right buttocks for which he received chiropractic manipulation and physical therapy. It was noted that he had been prescribed medication. The appellant stated that pain was 7/10 at all times but was 10/10 at least three times a week and lasted one to three hours. He related that prolonged sitting, standing or walking precipitated pain and that stress aggravated his symptoms. He reported using a TENS unit daily. He reported additional limitation of motion or functional impairment during flare-ups of pain when he was unable to bend forwards or backwards, and related that he had difficulty lifting, sitting, walking, climbing stairs, performing household chores or dressing. He complained of insomnia due to back pain and indicated that he had erectile dysfunction. The Veteran was observed to walk unaided but did have a lumbosacral corset. He was not unsteady and he denied a history of falling. He was able to walk more than two blocks before stopping, but could not walk more than 10-15 minutes before he had to stop. Allegedly, his sex life was disrupted because of intense back pain. The appellant reported previous employment as a college professor but stated that he could not hold a job due to back pain. He said that he was unable to play sports or engage in recreational pursuits and could only drive limited distances because of back pain. On examination of the thoracolumbar spine, the Veteran had erect posture and the spine was straight. Mild antalgia was noted but no asymmetry was observed. Forward flexion, extension, bilateral lateral flexion, and bilateral lateral rotation were from 0-10 degrees, 0-5 degrees, 0-10 degrees, and 0-10 degrees, respectively. There was no muscle spasm or guarding, straightening of the lumbar lordosis, or local tenderness of the spinal or paraspinalis muscles. The appellant reported pain with all ranges of motion, and he refused to perform repetitive motion studies for fear of exacerbating his pain. Increased fatigability and lack of endurance were noted. The examiner stated that pain, limitation of movement and fatigability were the major functional impacts. There was no abnormality or deformity of back musculature. On neurologic examination, the Veteran had normal sensation to light touch and pinprick, including the sacral segment. There was no muscle atrophy and he had normal tone and muscle strength. Deep tendon reflexes were 2+ and symmetrical. He had normal perineal sensation, anal tone and good volitional control with a positive anal wink. The Lasegue's sign was positive on the right. There was no loss of vertebral height. Non-organic physical signs were negative. An April 2006 lumbar magnetic resonance imaging (MRI) was interpreted as showing mild to moderate degenerative changes at L3-L4 and L4-L5 that were worse at L4-L5. There were Schmorl's nodes throughout the lumbar spine. No cauda equine compression was noted. Following examination, the diagnosis was chronic low back pain that is progressing with moderate degenerative disc disease. The examiner commented that there had been a significant decrease in range of motion in the thoracolumbar spine region when compared to the last examination in October 2005. It was reported that the Veteran was unable to hold a job as a college teacher due to his frequent time off because of exacerbation of back pain. It was further noted that on current examination, he was unable to perform repetitive tests and that at the end of the examination, he stated that pain had become unbearable. The Veteran was seen by VA as an outpatient in March 2007 and reported excruciating back pain that measured 10/10 on the pain scale. He indicated that pain was getting worse and that it involved the right lower extremity. On physical examination, he had weakness of the extensor hallucis longus and numbness in the L5 and S1 distribution. Pain management and rehabilitation consultation for epidural injection were recommended. A new brace and Tylenol #3 were prescribed. In May 2007, a physical rehabilitation progress note indicated that the appellant was referred for low back pain and right leg weakness in the L5-S1 distribution. He related that he had had physical therapy that had not helped but that he saw an outside chiropractor. The Veteran stated that he did not want injections. He said he used a TENS unit and a back brace that helped. The appellant complained of burning and numbness in the right lateral leg and the top of the right foot. There was limited trunk flexion and extension secondary to pain. Motor strength was somewhat reduced. There was decreased sensation on the right lower extremity on the lateral side. Reflexes were 1+ of the right lower extremity. He described pain as 9/10. It was noted that an MRI performed in April 2007 was compared to the one conducted in April 2006 and disclosed no interval change. An assessment of degenerative disc disease with radiculopathy was provided for which referral for acupuncture, Gabapentin, and lidocaine cream were prescribed. The Veteran's treating chiropractor certified in November 2007 that the appellant suffered a "severe exacerbation to injury" in November 2007 and that consistent therapy and chiropractic manipulation were recommended once a week. The examiner stated that the Veteran was totally disabled and unable to work. The diagnoses were lumbar disc herniation and lumbar radiculopathy. A July 2007 Social Security Administration disability determination found that the appellant had become disabled for work in May 2005 due to a discogenic and degenerative back disorder with a secondary diagnosis of affective disorder. The Veteran underwent a VA spine examination for compensation and pension purposes in January 2009. On this occasion, his complaints remained essentially the same. Intensity of pain was depicted as 7-10/10. No flare-ups of pain were reported. The Veteran did not utilize assistive devices but did use a back brace. He could walk 5-7 city block and 10 minutes at a stretch. It was reported that the appellant was previously employed as a postal worker, that he had re-aggravated his low back, and left the position on disability/retirement. It was reported that he had some difficulty with dressing and required assistance. He could not participate in recreational activities. Inspection of the spine revealed that the shoulder and pelvis were level. The appellant was hyperesthetic to all ranges of motion. He had right lumbar paraspinals and S1 joint tenderness. Muscle spasm was elicited, but there no muscle spasm or guarding severe enough to result in an abnormal gait, abnormal spinal contour, revered lordosis or abnormal kyphosis. There was no ankylosis of the thoracolumbar spine or abnormality or deformity of back musculature. Neurologic evaluation revealed 4/5 motor strength of the right lower extremity, in particular, the tibial anterior gastrocnemius extensor hallucis longus. It was reported that when encouraged, the Veteran maintained full 5/5 strength equal to the contralateral side. Reflexes were 2+. The Lasegue's sign was negative. On evaluation of non-organic physical signs, the examiner stated that there was an exaggerated response to light palpation. When queried about the duration of each incapacitating episode during the past 12-month period, the examiner wrote not applicable. It was reported that there had been no interval change in a more recent lumbar spine MRI when compared to April 2006. A diagnosis of mechanical low back pain with degenerative disc disuse from L3-L5 was rendered. An opinion was provided to the effect that it was likely than not that the Veteran's service-related injury predisposed him to the work-related injury, but that there had been minimal change in the MRI findings since 1993. The Veteran was afforded a VA spine examination on July 30, 2009. Pertinent history was provided to the effect that he worked as a letter carrier from 1991 until 1993 when he picked up a bag of mail that contained a lot of magazines which triggered back pain. The appellant related that he was more or less disabled until 2003 when he became a professor at a college in New York. He related working as a professor until 2005 when his back pain "caught up with him" and he became disabled from a Social Security standpoint. He related that he had not worked since that time. The Veteran related that he could dress and undress himself but had trouble tying his shoelaces. He denied problems eating or with toileting. He could walk approximately two blocks and lift 15 pounds. The appellant stated that currently, his back hurt mainly on the right side primarily in the right buttock. The pain reportedly radiated down to the back of the right thigh, but not down to the right foot, although there was some numbness on the lateral aspect of the right foot. The examiner indicated that this might relate to his foot problem. The Veteran stated that in addition to pain, he had sporadic almost daily muscle spasms. He indicated that he had a dull backache with exacerbations and remissions. He stated that it was exacerbated when he remained in any one position for a long time, and that this included sitting, standing or lying down. Alleviating back pain factors were reported to include treatment by a chiropractor, stretching and use of stimulants, a TENS unit and a back brace. He related that medication helped. The examiner related that the appellant gave no history of flare-ups or incapacitating episodes during the past 12 months, which meant that he did not have pain that disabled him for several days requiring him to seek medical attention. The examiner stated that the Veteran took Tylenol and had taken Tramadol and Gabapentin in the past without much success. The appellant was not on any narcotic medication and had never had back surgery or injections. The appellant had undergone therapy in the past but that this had not helped him to any great extent. He used a back brace but did not use any other assistive device. On examination, the examiner observed that the Veteran was in a good state of health. He did not appear to be in acute pain at that time. The appellant did walk with a slow limp. He was able to walk on tiptoe and on his heels. Range of motion was performed three times and revealed flexion, extension, bilateral lateral flexion, and bilateral lateral rotation of 0-60 degrees, 0-20 degrees, 0-20 degrees, and 0-30 degrees, respectively, with pain reported throughout motion. There was no evidence of weakness, instability or incoordination. The examiner noted that the appellant did not evince additional loss of motion due to pain with repeated testing. Knee and ankle reflexes were brisk and equal. The Veteran had no loss of sensation in the lower extremities. He had 5/5 muscle power in the lower extremities to dorsiflexion and plantar flexion of both ankles. Straight leg raising was to 80 degrees on the left, and to 70 degrees on the right. Lumbar X-rays were interpreted as showing some evidence of L5 sacralization that almost contacted the sacrum. It was reported that this was not of clinical significance. The appellant had well maintained disc spaces at all levels. There were osteophytes anteriorly at L4-L5. The examiner stated that it appeared that the L5-S1 foramina was smaller than the other and that his right-sided pain could be associated with some pressure on a nerve root on the right side. Following examination, the examiner commented that the Veteran had a significant amount of pain and disability associated with his back and that it would seem that when compared to the time he left the military, there had been some progression of his low back problems. It was indicated that he had had a significant injury since service that had aggravated back condition but currently had moderate disability. The examiner stated that the diagnosis was degenerative disc disease of the fourth through fifth lumbar vertebra with moderate disability. The examiner noted that the examiner report was modified on July 31, 2009 following receipt of additional information and clarification. Legal Analysis The appellant's service-connected lumbosacral spine disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a Diagnostic Codes 5337 for lumbar strain. The record reflects that degenerative disc disease has also been diagnosed. The evidence above indicates that following service, the appellant sustained a significant work-related injury that aggravated his service-connected back condition. However, on VA examination in January 2009, the examiner concluded it was likely than not that the Veteran's service-related back condition predisposed him to the work-related injury. As such, the Board is of the opinion that subsequent development of degenerative disc disease of the lumbosacral spine may be conceded as secondary to and part and parcel of the service-connected back disorder. Therefore, service-connected back disability may also be evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5243 for intervertebral disc syndrome. After reviewing the evidence of record, the Board finds that the appellant's low back disorder warranted a 40 percent rating from March 9, 2007 to July 29, 2009, and a 20 percent rating from July 30, 2009 onward. In this regard, the March 9, 2007 examination revealed a limitation of forward lumbar flexion to 10 degrees. While this finding appears to be incongruous with the other findings at that examination, the March 2007 examiner specifically found the appellant's limitation of motion to cause a major functional impact, and the Board is precluded from substituting its judgment for that offered by a physician. While an evaluation in excess of 40 percent is not warranted in the light of the absence of any evidence that the appellant's lumbar spine was ankylosed, the Board will assign a 40 percent rating from March 9, 2007 to July 29, 2009. Effective July 30, 2009, the Board finds that a 20 percent rating is in order for the appellant's lumbar spine. While the appellant's lumbar pain continues unabated he was able to demonstrate forward lumbar flexion to 60 degrees. There is no evidence of lumbar ankylosis. While there are suggestions throughout the appeal that the appellant has lumbar radiculopathy, whether that is related to the service connected lumbar disorder is a question that is not currently before the Board. The Veteran's service-connected lumbar spine disorder encompasses disc pathology under 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, since July 30, 2009, a rating greater than 20 percent is not warranted based on the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As noted above, a 40 percent rating is available if intervertebral disc syndrome results in incapacitating episodes, which are defined as physician prescribed bed rest, having a total duration of 4 weeks but less than 6 weeks in the past 12 months. Id. While the Veteran testified that he rested in bed at times for relief of back pain, the record does not document physician prescribed bed rest so as to warrant more than a 20 percent rating under the diagnostic code for intervertebral disc syndrome. The Veteran's self-reported history and the clinical record are negative for this prescription. Although the evidence reflects treatment by a physician and reported complaints of chronic pain, including flare-ups of pain over the course of this appeal, there is no notation of incapacitating episodes or being prescribed by a physician to remain in bed. See 38 C.F.R. §4.71a, Diagnostic Code 5243. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45 on the basis of functional loss due to pain and other impairment associated with motion, the appellant clearly has chronic pain and reports that some activities of daily living have been constrained. However, pain associated with motion is fully contemplated by the assigned evaluations. Indeed, on most recent VA examination on July 30, 2009, the examiner stated that there was no evidence of weakness, instability or incoordination. As such, a higher rating based on pain and functional loss is not warranted. The appellant is competent to assert that he is worse. Here, he describes a history of severe pain and indicates that there are occasional flare-ups of pain which result in further limitations. Despite such complaints, however, he has presented no evidence of incapacitating symptomatology or physician-prescribed bedrest. Although the VA examiner in July 2009 stated that there appeared to have been some progression in his low back symptomatology since service, it was reiterated that he had no more than a moderate lumbosacral disability. In view of such, the Board finds that the preponderance of the evidence is against entitlement to evaluations in excess of those assigned in this decision. Additionally, the record does not establish that the rating criteria are inadequate for evaluating the Veteran's service-connected lumbar spine disability through July 31, 2009. The evidence reflects that the manifestations and the effects of this disability have been fully considered and are contemplated by the rating schedule. Therefore, referral for an extraschedular rating is not indicated at this time. See Thun v. Peake, 22 Vet.App. 111, 115. (2008). ORDER Entitlement to a 40 percent rating for a low back disorder from March 9, 2007 through July 29, 2009 is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 20 percent for a low back disability with degenerative disc disease is denied effective from July 30, 2009. REMAND Neurological manifestations relative to the service-connected low back disability with degenerative joint disease are not included in the rating criteria for the appellant's lumbar spine. However, the evidence suggests that the Veteran may have neurologic residuals, including radiculopathy, specific to the site of a diseased disc that have not been confirmed on examination. In view of the ambiguous neurological findings referenced throughout the appeal period, the Board is uncertain as whether the Veteran has any distinct nerve disability that might warrant a separate evaluation. The Board thus finds that a current neurological examination should be scheduled for a definitive opinion in this regard. See Hyder v. Derwinski, 1 Vet. App. 221, (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). As such, the case is remanded to schedule the Veteran for a VA neurologic examination to determine whether a separate rating is warranted for any pertinent neurologic findings or disability. Based on the appellant's assertions and other evidence of record, the issue of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability, to include on an extraschedular basis, has been raised. In Rice v. Shinseki, 22 Vet.App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is "part of" and not separate from a claim of entitlement to an increased rating. Id at 453. While the issue of entitlement to individual unemployability benefits, to include on an extraschedular basis, has not yet been addressed by RO or certified for appeal, the Board is required to remand this issue for appropriate consideration in light of the binding precedent set forth in Rice. The Veteran was last examined for VA compensation and pension purposes in July 2009. He reports and has presented testimony to the effect that his low back symptomatology has significantly worsened. The Court has held that when a veteran claims that a disability is worse than when originally rated (or when last examined by VA), VA must provide a new examination. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). As such, the appellant should be scheduled for a current VA examination of the low back. Additionally, review of the record discloses that the appellant has received ongoing VA outpatient back treatment at the Atlanta, Georgia VA Medical Center. The most recent VA records date through February 17, 2010. As there is potential notice of the existence of additional VA records, they must be retrieved and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet.App. 611 (1992). Therefore, VA records dating from February 2010 should be requested and associated with the claims folder. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran VCAA notice addressing whether a separate rating is warranted for neurologic residuals associated with the appellant's low back disorder with including degenerative disc disease, and entitlement to a total rating based on unemployability due to service-connected disability. 2. Request all pertinent VA outpatient records dating from February 2010 to the present and associate them with the claims folder. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, schedule the Veteran for VA examinations by appropriate neurological and orthopedic examiners. All indicated tests and studies should be performed, and clinical findings should be reported in detail, to include specific diagnoses. The claims file, to include access to Virtual VA, must be made available to the examiners for review prior to the examinations. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. Each examiner should provide ranges of motion for the service-connected low back disorder. It is important that the examiners specifically state whether there is any additional limitation of function due to or caused by fatigue, pain, weakness, lack of endurance or incoordination. The examiners must opine whether the Veteran has an additional neurologic disorder related to the service-connected low back disorder with degenerative disc disease. Each examiner should also address whether the Veteran's service-connected disabilities, including the low back, render him unable to obtain or maintain gainful employment. The examination report must include well-reasoned rationale for all opinions and conclusions provided. 4. After addressing whether a separate rating is warranted for neurologic residuals associated with a low back disorder with including degenerative disc disease, as well as the issue of entitlement to a total rating based on unemployability due to service-connected disability, re-adjudicate the issue on appeal. If a benefit sought on appeal is not granted, provide the appellant and his representative a supplemental statement of the case before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs