Citation Nr: 1335269 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-24 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for service-connected degenerative joint disease of the lumbar spine, to include an initial rating in excess of 20 percent prior to August 25, 2012. 2. Entitlement to total disability based on individual unemployability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to February 1971 and from January 2003 to October 2003. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a RO formal hearing in November 2007. The hearing transcript has been associated with the claims file. This issue has previously been before the Board on two occasions. In an August 2010 decision, the Board denied entitlement to a rating in excess of 20 percent for orthopedic manifestations of a lower back disability, and granted a separate 10 percent rating for sciatica of the right lower extremity. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2011, the Court granted a Joint Motion for Partial Remand (JMR), and only the part of the Board's decision that denied entitlement to an initial evaluation for a low back disability in excess of 20 percent was remanded to the Board for action consistent with the terms of the JMR. The parties to the JMR explicitly stated that they did not wish to disturb the Board's adjudication of the Veteran's neurologic impairment that resulted from his service connected back disability. In August 2012, the Board remanded this matter for additional development. Specifically, the Board requested the Veteran be provided with notice of the elements of a claim for an extraschedular evaluation, refer his claim to the Chief Benefits Director of the VA's Compensation and Pension Service for consideration of an extraschedular evaluation, and provide an additional VA examination to assess the current nature and severity of his degenerative joint disease in the lumbar spine, including the Veteran's functional impairment during flare-ups as well as any side effects of his prescribed medications. The Board finds these requested actions were completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The Veteran's file on the "Virtual VA" system includes updated VA treatment records through September 2013 which were not initially considered by the RO in the most recent Supplemental Statement of the Case from August 2013. However, in August 2013 the Veteran submitted a written waiver of RO consideration for any additional evidence. Specifically, the Veteran indicated in a signed statement that he wished for the Board to consider any new evidence. Moreover, a review of the additional VA treatment records finds that they do not discuss the Veteran's back disability and are therefore not potentially relevant to the adjudication of this claim. Therefore, the Board may continue to adjudicate the claim at this time and no additional remand is required. The issue of entitlement to total disability based on individual unemployability (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. The evidence does not establish that the forward flexion of the Veteran's thoracolumbar spine was functionally limited to 30 degrees or less, to include during flare-ups and/or as a result of pain, prior to August 25, 2012. 2. The evidence does not establish the Veteran had unfavorable ankylosis of the entire thoracolumbar spine at any point during the period on appeal. 3. The evidence does not establish that the Veteran has been prescribed bed rest to treat incapacitating episodes of intervertebral disc syndrome at any point during the period on appeal. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a lower back disability, to include an initial rating in excess of 20 percent prior to August 25, 2012, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5242 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking an initial increased rating for his service-connected lower back disability. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, service connection was granted for the Veteran's back disability by a May 2006 rating decision and a 20 percent rating was assigned. The Veteran appealed the assigned rating. The RO subsequently granted a 40 percent rating as of August 25, 2012. As such, the Board will consider first whether a rating in excess of 20 percent is warranted prior to August 25, 2012, and then whether a rating in excess of 40 percent is warranted for the Veteran's service connected back disability. The Veteran's back is rated under Diagnostic Code 5242 for degenerative arthritis of the spine. 38 C.F.R. § 4.71a. VA regulations provide back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever would result in a higher rating. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during a 12 month period; a 40 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during a 12 month period; and a 60 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks during a 12 month period. An incapacitating episode is defined by the regulations a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. In this case, the Veteran has not alleged that bed rest has been prescribed to treat incapacitating episodes of intervertebral disc syndrome; and no such prescription is noted in the treatment records or examination reports. For example, at the Veteran's VA examination in May 2006, the Veteran specifically denied experiencing any incapacitating episodes related to his lower back disability in the 12 months prior to his examination. The Veteran also specifically denied having ever been prescribed any bed rest at his RO hearing in 2007. Finally, the examiner in 2012 stated that the Veteran did not have IVDS. Therefore, since the evidence does not show the Veteran has required any prescribed bed rest during the course of his appeal, it is more advantageous to him to evaluate his service-connected back disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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 rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; or when there is favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The relevant evidence of record includes the Veteran's VA and private treatment records, VA examination reports, and lay evidence, including the Veteran's submitted statements, his friends' and coworkers' submitted statements, and his hearing testimony. Back Rating Prior to August 2012 The Veteran underwent a VA spinal examination in May 2006, at which he reported experiencing intermittent back pain, with pain occasionally radiating to his right lower extremity. He stated that the pain occurred 2-3 times per week at a pain level of 7-8/10. The Veteran stated it was "tough for him to really know" what provoked his flare-ups of pain, although he worked as a package delivery person for UPS and suspected that he overdid it on some days. On physical examination, the examiner noted that the Veteran demonstrated a normal gait and did not use any assistive ambulatory devices. His lumbar spine and sciatic notch evidenced some tenderness on palpation, but no deficit in the Veteran's sensory or motor systems was found. On range of motion testing, the Veteran demonstrated 60 degrees of flexion, 10 degrees of extension, 25 degrees of right and left lateral flexion, and 10 degrees of right and left lateral rotation. The Veteran reported pain at the terminal 5 degrees of each of these ranges of motion. The Veteran also reported pain on repetitive motion, but such pain did not produce any additional loss of motion. The examiner allowed that it was conceivable that pain could further limit the Veteran's functioning, but that he could not state to what degree his range of motion would be further limited, as this could not be determined with any degree of medical certainty. After reviewing x-ray studies of the Veteran's lumbar spine, the examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine with moderate lumbar spondylosis and sciatica of the right leg. The Veteran also had normal sensation and no focal motor deficit in the lower extremities. Deep tendon reflexes were preserved and symmetrical. In August 2006, the Veteran wrote that he felt that his back disability had worsened. He stated that he was unable to perform his job and his lower back and right leg hurt daily. He indicated that walking and riding caused great pain. He reported seeing a chiropractor which had helped with the pain, but the pain had not responded recently to such treatment. He added that side effects from his medication, including dizziness and lightheadedness, made it unsafe for him to drive, which was a large part of his previous job. Private treatment records from September 2006 reflect the Veteran's reports of lower back pain. Corresponding radiological studies, including lumbar spine x-rays and a magnetic resonance imaging (MRI) study revealed degenerative changes of the lumbar spine and foraminal encroachment due to those arthritis changes. At a September 2006 private treatment session, the Veteran stated that his back pain was a level 3/10 that day and the worst pain was 4/10. An October 2006 private treatment record noted that the Veteran's lower back pain did not radiate, and an October 2006 VA treatment record reflected the Veteran's report of experiencing exacerbated back pain when he lifted boxes or took a wrong step. At another October 2006 private treatment session, the Veteran stated that his back pain was a 0 that day and the worst pain was 3/10. In statements received in October 2006, the Veteran's friends and co-workers reported their observations of the severity of his lower back disability, including their observations that his back disability affected his ability to perform his job-related duties and activities of daily living. February 2007 private treatment records reflect diagnoses of spinal arthritis with radicular symptoms in one leg and a lumbar strain with radicular symptoms. A May 2007 VA treatment record reflects another report that the Veteran's back pain was exacerbated when he lifted boxes or took a wrong step, and a July 2007 private treatment report reflects the Veteran's report of continuing to experience low back pain and back spasm. At his RO formal hearing in November 2007, the Veteran testified that his lower back disability was exacerbated by driving for long periods (as required by his employment as a truck operator and delivery person) and this his disability made it difficult to engage in activities that he enjoyed, including fishing, hunting, and running. The Veteran underwent a second VA spinal examination in August 2008, at which time he reported numbness radiating to his right thigh and that flare-ups of his back pain (but no increase in weakness or numbness) after lifting, sudden movements, or prolonged standing. He estimated that the pain was 6/10. The Veteran denied experiencing any bowel or bladder incontinence. On physical examination, the examiner noted that the Veteran did not demonstrate any abnormality of posture or spinal curvature, and the Veteran did not evidence any motor, sensory, or reflex deficits on neurological testing. The Veteran reported tenderness on palpation to his lumbar spine and right sacroiliac joint, but there was no tenderness of the paraspinal muscles or spasming noted. The Veteran demonstrated positive results for straight leg raises testing and bowstring testing on the right leg. On range of motion testing, the Veteran demonstrated forward flexion to 90 degrees, with pain reported on the last 10 degrees of flexion; extension to 20 degrees, with pain reported on the last 5 degrees of extension; right and left lateral flexion to 20 degrees, with pain reported on the last 5 degrees of lateral flexion; and right and left lateral rotation to 20 degrees, with pain reported on the last 5 degrees of rotation. The examiner noted that repetitive motion testing did not cause any increased pain. The examiner allowed that although the Veteran reported mild pain on range of motion testing and evidenced no neurologic deficits, it was feasible that he could develop some radicular symptoms after prolonged periods of standing or working. However, the examiner stated that it was not feasible to express any of the functional impairment due to prolonged standing or working in terms of limitation of motion, as these matters cannot be determined with any degree of certainty. Subsequent treatment records continue to reflect the Veteran's complaints of back pain, but it is noted that at no time did the Veteran ever seek emergency room treatment or express to any medical professional that flare-ups caused significant reduction in his range of motion. In January 2011, he described some improvement in his back, but his condition continued to bother him with "on and off shooting pain with numbness." Tenderness over the lower back was noted, but leg raising was negative. In June 2011, the Veteran reported his medications were not working and he had continued pain in his lower back. However, no additional range of motion testing or other description of the Veteran's limited motion was provided in these records. Based upon the evidence of record, the Board finds that the Veteran's disability picture prior to August 2012 was accurately reflected by the 20 percent disability rating that was assigned for the orthopedic manifestations of his lumbar spine disability. The medical evidence of record fails to establish that the Veteran's lumbar spine flexion was functionally limited to 30 degrees or less or that he had favorable ankylosis of the entire thoracolumbar spine. In fact, none of the range of motion testing that is of record even approaches 30 degrees, as the Veteran demonstrated full forward flexion to 90 degrees at his 2008 VA examination and 60 degrees of forward flexion at his May 2006 examination. The Board acknowledges that both VA examiners allowed that the Veteran hypothetically might experience additional limitation of motion due to pain following prolonged standing or use, however each examiner opined such additional limitation of range of motion could not be determined with any degree of medical certainty. The examiners failed to provide any explanation of why the additional degree of motion could not be determined without resorting to speculation. As such, the parties to the JMR asserted that these opinions were inadequate for rating purposes. The Board agrees that such a conclusion is consistent with current case law; and the Board remanded the Veteran's claim in part to obtain an additional medical opinion of record. This was done, and the obtained opinion is considered to be fully adequate. This opinion formed the basis for a higher 40 percent rating, as the Veteran's range of motion was shown to be considerably more limited at that examination than it had been at the VA examinations in 2006 and 2008. It is noted that the JMR did not suggest that there was any problem with the range of motion testing/measurement at either of the earlier VA examinations. As shown by the evidence discussed above, prior to August 2012, the Veteran consistently demonstrated forward flexion that greatly exceeded 30 degrees. Additionally, the VA examiners noted that the repetitive motion testing that was conducted at the examinations and pain did not further functionally limit the forward flexion, although range of motion testing did increase pain. As such, even considering functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45, a higher disability evaluation is not shown to be warranted. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). This leaves the Board with the question of what to be done about the comments by the two VA examiners which the JMR found were inadequate, and ultimately with the question of whether a higher rating should be assigned based on increased functional limitation during flare-ups. Looking to the actual language in the August 2008 examination report, the examiner stated that it was conceivable that after prolonged standing and work the Veteran could develop some radicular symptoms and increased pain. Yet, even accepting this as true, the Board has already granted a separate compensable rating for radicular symptoms, even though at the August 2008 examination, the Veteran had normal motor strength, normal reflexes, and normal sensation. That is to say, a separate 10 percent rating was essentially being assigned for flare-ups, since the radicular symptoms were only intermittent in nature. Moreover, even if the Veteran's forward flexion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, the examiner suggested that the pain could increase with flare-ups, but he does not indicate that any increased pain would further functionally limit the Veteran's range of motion. In fact, the evidence of record suggests that it does not, as the range of motion testing at the VA examinations showed that while the Veteran had pain at the terminal ends of range of motion testing, he still was able to demonstrate full range of motion, suggesting that the onset of pain did not actually functionally limit his range of motion. Moreover, to warrant a rating in excess of 20 percent based on limitation of motion, it would have to be shown that the increase in pain after prolonged activity was so great as to decrease the Veteran's forward flexion by 60 degrees (from what was shown at the 2008 examination). A finding that is simply not consistent with the treatment records from prior to August 2012, which generally show complaints of pain of 3-4/10. Likewise, at the May 2006 examination, the increase in pain would have had to functionally limit the Veteran's range of motion by half (from 60 to 30 degrees of forward flexion). Even then, the Veteran indicated at that examination that the use of either heat or ice in conjunction with over the counter pain medication such as Aleve eventually soothed his flare-ups. These flare-ups did not as noted above ever result in prescribed bed rest, and were not noted to require the prescription of powerful pain relievers. Additionally, the Veteran was not shown to have required any emergency room treatment for any flare-ups. The Board has considered the lay statements of the Veteran and his co-workers and family regarding his ongoing back pain, however none of these statements provide any estimation or description of any additional functional limitation during a flare-up. Likewise, a review of the VA and private treatment records does not reflect any indication that the Veteran's range of motion was additionally functionally limited prior to August 2012 even during flare-ups, and even if there was some limitation, it was not to the extensive degree that would warrant a rating in excess of 20 percent. The Board is not trying to minimize the impairment the Veteran's back disability causes him, and given the ratings that are assigned, it is clear that the back disability has caused significant impairment. However, the fact remains that the evidence of record simply does not support a higher rating for the Veteran's back disability during the course of his appeal. The Board has considered whether a retrospective medical opinion was needed to assess the degree to which the Veteran was additionally limited by flare-ups and pain. However, as noted there is no suggestion that any additional evidence is missing that is not of record, and as discussed, the evidence of record does not show impairment during flare-ups that would suggest to the Board that he was so incapacitated during flare-ups as to warrant a 40 percent rating. As noted, the Veteran did not require any bed rest or emergency room treatment for his back during this period. As such, the Board concludes that a retrospective opinion is not warranted. Therefore, a rating in excess of 20 percent is not warranted based on limitation of flexion prior to August 2012. Furthermore, none of the medical records ever suggest that the Veteran's spine was ankylosed. Therefore, the Board finds the available evidence of record does not establish the Veteran's back condition warranted a rating in excess of 20 percent prior to August 2012. It is noted that the regulations provide that neurologic impairment caused by a back disability is to be rated separately from the orthopedic impairment and the two rating are then to be combined. As noted in the introduction, the Veteran was already assigned a separate neurologic rating based on the evidence of record. The JMR reviewed this decision and asked that it not be disturbed. Therefore, the Board will not address neurologic impairment any further. Back Condition after August 2012 On August 25, 2012, the Veteran was provided with an additional VA examination, as directed by the Board remand. The Veteran reported having experienced worsening low back pain since that he initially injured it in 2003. The examiner diagnosed the Veteran's condition as "spine arthritis/low back pain." The Veteran described pain and tingling which radiated to his right foot. He also reported experiencing flare-ups following bending, twisting, or lifting. On range of motion testing the Veteran demonstrated forward flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees, all with pain beginning at the end of available range of motion. Additional range of motion testing was conducted after repetitive use but revealed no additional limitation of motion. The examiner opined the Veteran had less movement than normal and pain on movement due to his back condition. The Veteran also demonstrated tenderness or pain to palpation and guarding or muscle spasm which resulted in abnormal gait. Reflex and sensory testing was normal and straight leg raising was negative bilaterally. The examiner noted the Veteran had mild sciatica of the right lower extremities, but no other neurologic abnormalities. The examiner opined the Veteran did not have IVDS of the spine. Finally, the examiner opined the Veteran's back condition impacted his ability to work in that it prevented heavy lifting and bending. Based on this examination, the RO granted a 40 percent rating as of the date of this examination. The Board concurs with this assessment, as the examination report reflects the Veteran had the symptoms associated with a higher 40 percent rating for the first time during the period on appeal, primarily that his forward flexion was limited to less than 30 degrees. Accordingly the Board finds the 40 percent rating was appropriate from the date of this examination. A higher rating is not warranted because no ankylosis of the spine has been found at any time during the course of the Veteran's appeal. Based on the foregoing the Board finds an increased rating for the orthopedic manifestations of the Veteran's back condition is not warranted. The Veteran consistently demonstrated forward flexion that greatly exceeded 30 degrees, even considering pain and functional limitation, including during flare-ups, throughout the period on appeal prior to August 2012, and therefore did not warrant a rating in excess of 20 percent during this time. In August 2012 the Veteran's forward flexion was shown to be limited to less than 30 degrees for the first time during the period on appeal, however no ankylosis was noted. Accordingly, a rating in excess of 40 percent was not warranted at any time. With regard to any neurologic manifestation of the Veteran's lower back disability, the Board's previous grant of service connection for right lower extremity sciatica was not disturbed by the JMR. Accordingly the Board finds the Veteran already receives a separate rating addressing his neurological conditions of sciatica extending to his right lower extremity. The Board notes the evidence obtained since the JMR does not establish any additional neurological condition. Indeed the most recent VA examiner in August 2012 specifically opined the Veteran did not have any additional neurological condition other than his service-connected sciatica, which he termed mild. Accordingly, the Board finds no additional rating is warranted for any neurologic manifestations of the Veteran's lower back condition. The Board also specifically acknowledges its consideration of the lay evidence of record when promulgating this decision, including the Veteran's reports of intermittent back pain, occasional sciatica, and flare-ups of back pain caused by overexertion, and the statements submitted by the Veteran's friends and coworkers reflecting their observations of the effect on the Veteran's vocational and daily activities caused by his lower back disability. The Board further acknowledges that lay persons are competent to report their observations of the Veteran's lower back impairment and that the Veteran is competent to report his lower back symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). However, the objective medical evidence of record, including range of motion studies and objective physical examination findings, do not support a basis for awarding an increased rating for the Veteran's lower back disability. In reaching this conclusion, the Board has also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. In this case all three examiners conducted additional range of motion testing, but each found that the Veteran did not have any additional functional loss of motion after repetitive use testing, even if the testing increased pain. The Board has considered the Veteran's reports of additional pain after prolonged use of his back, however the record does not contain any objective evidence of any additional functional limitation, or lost motion, due to prolonged use. Therefore, the Board finds an increased rating is not warranted based on DeLuca considerations. The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that 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 rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. The Board notes the record contains evidence that the pain medication the Veteran was taking for his back condition caused him to have gastrointestinal issues. For example, in a September 2006 private record the Veteran reported experiencing loose and bleeding bowels, which the private physician opined was likely due to his medication for his back. However, these symptoms were addressed by the RO in a June 2013 rating decision which granted service connection and a separate 10 percent rating for gastroesophageal reflux disease (GERD) secondary to the Veteran's lower back condition. Therefore, the Board finds the Veteran is already receiving a schedular rating which specifically addresses his gastrointestinal symptoms, and because these symptoms constitute a separately rated secondary condition, they are not contemplated by the back disability rating being discussed here. In addition the RO also referred the Veteran's case to the Chief Benefits Director of the VA's Compensation and Pension Service (Director) for consideration of an extraschedular rating, including consideration of the Veteran's statements that side effects from his medication, including dizziness and lightheadedness, made it unsafe for him to drive, which was a large part of his previous job. However the Director found the totality of the evidence did not establish the Veteran's back condition was so exceptional or unusual as to render the use of the regular rating schedular impractical. It is noted that the Board is not bound by the Director's decision, and references it only for the purpose of procedural continuity. However, for the following reasons, the Board agrees with the Director and finds the Veteran's current low back condition is not so exceptional or unusual as to render the schedular rating criteria inadequate. The Veteran's main symptoms of pain and limitation of motion were both specifically contemplated in the schedular rating assigned, as discussed above. In addition, the Veteran's complaints of gastrointestinal issues due to his pain medication was already granted a separate rating by the RO. As such, it can be said that the Veteran's main symptoms are reasonably contemplated by the schedular rating that is assigned. As such, an extraschedular rating is denied. Finally, the Board has determined that an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised by the evidence of record, but has not yet been adjudicated by the RO. Therefore, this issue is addressed in the remand portion of the decision. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Veteran's claim for service connection for a back disability was granted. He then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regard to that issue. It is also noted, that the Veteran's claim has already been the subject of a JMR, as noted, but the JMR took no issue with the notice to the Veteran. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained. The Veteran also testified at a formal hearing before the RO and the transcript of this hearing was associated with the claims file. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with three VA examinations throughout the course of this appeal, the reports of which have been associated with the claims file. The Board notes that the Court determined the first two VA examinations were not fully adequate due to their failure to provide an explanation as to why the Veteran's potential additional limitation of motion following prolonged use could be determined with any degree of medical certainty. However, the Board finds the most recent VA examination from August 2012 was adequate. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. The examiner also provided additional range of motion testing after repetitive use and determined the Veteran did not experience any additional loss of range of motion. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of this most recent examination. Because the Veteran was provided with an adequate examination in August 2012 the Board finds the duty to assist has been met. Moreover, from a reading of the JMR, it was not determined that the entirety of the findings that were made on the first two examinations were inadequate, only the ultimate conclusions as to the speculation of the degree that limitation of motion was further limited by pain and flare-ups. The Board considered whether a retrospective medical opinion was needed to assess the degree to which the Veteran was additionally limited by flare-ups and pain. However, as discussed above, from a review of the totality of VA and private treatment records, and lay statements, it is clear that to the extent that the Veteran's range of motion was additionally functionally limited prior to August 2012, it was simply not to the degree that would warrant a rating in excess of 20 percent. As such, a retrospective opinion is not needed to make a reasonable and informed decision in this case. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The claim for an increased rating for the service-connected lower back disability is denied. REMAND The Board finds that an inferred claim for TDIU has been raised based on the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). For example, in his October 2012 written statement, the Veteran asserted that due to his constant back pain he was forced to take an early retirement in 2010. As such, the Board finds an inferred claim for TDIU under Rice has been raised. In addition, in his September 2013 written brief the Veteran's representative asserted the Veteran was entitled to TDIU based the totality of his service connected disabilities. Therefore, the Board finds a claim for TDIU based on all service connected disabilities has also been raised. Under VA regulations a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. In this case, the Veteran is currently rated with a 60 percent impairment based on coronary artery disease, a 50 percent impairment based on post-traumatic stress disorder (PTSD), and a current 40 percent impairment based on degenerative joint disease in his lumbar spine, as discussed above. As such, the Veteran has a single disability ratable in excess of 40 percent, and has a combined disability rating of 90 percent. As such, the Veteran meets the standard for TDIU under 38 C.F.R. § 4.16(a) if the VA determines he is unable to secure or follow substantially gainful occupation as a result of his service-connected disabilities. As discussed above, the record contains some evidence that the Veteran may be unable to secure or follow substantially gainful employment as a result of his service connected back condition, including his own lay testimony. Additionally the August 2012 VA examiner found the Veteran's lower back condition impacted his ability to work. However, the Board finds this evidence alone does not establish the Veteran is unable to secure or follow any substantially gainful employment. The Board also notes that none of the evidence of record addresses whether the Veteran is able to secure substantially gainful employment as a result of the combination of all his service connected disabilities, including coronary artery disease, PTSD, and his lower back condition. As such, the Board finds remand is required for a medical opinion to address whether the Veteran is unable to secure gainful employment based only on his service connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Obtain a medical opinion from the appropriate expert(s) regarding the following questions: a) What occupational impairment does the Veteran have due to his service-connected lower back disability, including mild sciatica of the right lower extremity? b) What occupational impairment does the Veteran have due to the totality of all his service-connected conditions, including coronary artery disease, post traumatic stress disorder, lower back disability, traumatic arthritis of the right knee, sciatica of the right lower extremity, gastroesophageal reflux disease, hypertension, and erectile dysfunction? If such opinions cannot be reached without an examination, schedule the Veteran for the appropriate examination. 2. Then, readjudicate the claim, considering whether a TDIU is warranted, both as a result of all of the Veteran's service connected disabilities, and as a result of just his back disability. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and provide an appropriate period of time to respond. The Veteran has the right to submit additional evidence and argument on the matter 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. ______________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs