Citation Nr: 1335695 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-30 183 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating greater than 20 percent for the orthopedic manifestations of service-connected thoracolumbar spine disability, 2. Entitlement an initial, compensable rating for service-connected hypertension. 3. Entitlement to an initial, compensable rating for service-connected scar residuals from excisions of right foot fibromas. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU), for the time period prior to October 28, 2009. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to February 2007. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2007 rating decision in which the Salt Lake City RO, inter alia, granted service connection for post-operative spinal fusion and assigned an initial 10 percent rating; granted service connection for hypertension and assigned an initial noncompensable rating; and granted service connection for scar residuals from excisions of right foot fibromas and assigned an initial noncompensable rating. In September 2007, the Veteran filed a notice of disagreement (NOD). A September 2008 rating decision by the Denver RO awarded a 20 percent rating for service-connected thoracolumbar spine disability, recharacterized as degenerative disc and joint disease of the lumbar spine, effective to March 1, 2007 (the date following service discharge). A statement of the case (SOC) for all issues on appeal was issued in September 2008. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2008. Because the Veteran disagreed with the initial ratings assigned following awards of service connection, the Board characterizes these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Additionally, the Board has rephrased the thoracolumbar spine disability claim to exclude from consideration a period of hospitalization and convalescence when a 100 percent rating was assigned from August 13, 2008 to February 28, 2009. In his September 2008 filing, the Veteran claimed unemployability due to his service-connected thoracolumbar spine disability which reasonably raised the issue of entitlement to TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (once a claimant submits evidence of medical disability, makes a claim for highest possible rating, and submits evidence of unemployability, an informal claim is raised under 38 CFR 3.155(a)); Comer v. Peake, 552 F.3d 1362, 1367 (Fed.Cir.2009) (the issue of TDIU "is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating"). In a March 2011 rating decision, the Cleveland RO awarded TDIU effective October 28, 2009. A Veteran is presumed to seek the maximum available benefit for a disability. AB v. Brown, 6 Vet. App. 35, 38 (1993). Inasmuch as the issue of entitlement to TDIU is deemed a component of the initial rating claims and that a TDIU may be available prior to October 28, 2009, the Board has characterized the appeal as also encompassing the issue of entitlement to TDIU prior to October 28, 2009. See Fenderson, 12 Vet. App. at 126; Rice v. Shinseki, 22 Vet. App. 447 (2009). An August 2013 letter informed the Veteran that he was scheduled for a Board hearing to be held at the RO on September 11, 2013. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). A review of the Virtual VA electronic records storage system reveals additional documents not currently associated with the paper claims file. The RO has reviewed these records in adjudicating the claims. As a final preliminary matter, the Board finally observes that, by rating decision dated December 2008, the RO, inter alia, denied a claim for a rating greater than 10 percent for service-connected right patellofemoral pain syndrome. The Veteran filed an NOD in May 2009, and the RO furnished the Veteran an SOC in June 2010. The Veteran did not file a timely substantive appeal, and the RO has not undertaken any actions waiving the time requirements for filing a Substantive Appeal. See Percy v. Shinseki, 23 Vet. App. 37, 42 (2009). As such, the Board has no jurisdiction over this claim. The Board's decision on the claims for higher ratings for the orthopedic manifestations of lumbar spine disability and for hypertension is set forth below. The claims for an initial, compensable rating for service-connected scar residuals from excisions of right foot fibromas and for a TDIU prior to October 28, 2009 are addressed in the remand following the order; these matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Prior to August 13, 2008, the Veteran manifested thoracolumbar spine motion which more nearly approximated limitation of flexion of less than 30 degrees when considering functional impairment on use; there was no ankylosis of the entire thoracolumbar spine or incapacitating episodes of IVDS having a total duration of at least 6 weeks during any 12-month period. 3. Since February 28, 2009, the Veteran has manifested thoracolumbar spine motion greater than 30 degrees even when considering functional impairment on use; there was no ankylosis of the entire thoracolumbar spine or incapacitating episodes of IVDS having a total duration of at least 4 weeks during any 12-month period. 4. Although the Veteran has required medication for control of hypertension at times during the appeal period, the Veteran's systolic blood pressures have been predominately less than 160, there is no history of diastolic pressures predominantly 100 or more, and there is no evidence of hypertensive heart disease. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial 40 percent rating for the chronic orthopedic manifestations of service-connected thoracolumbar spine disability for the time period prior to August 13, 2008, are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2013). 2. The criteria for a rating greater than 20 percent for the chronic orthopedic manifestations of service-connected thoracolumbar spine disability are not met for the time period since February 28, 2009. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2013). 3. The criteria for an initial, compensable rating for hypertension are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.104, DC 7101 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, the Veteran was provided a VCAA letter prior to discharge as part of the Benefits Delivery at Discharge (BDD) program which explained to him what information and evidence was needed to substantiate his service connection claims, what information and evidence must be submitted by him, and what information and evidence would be obtained by VA. This letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The April 2007 rating decision reflects the initial adjudication of the claims after issuance of this letter. After the award of service connection and the Veteran's disagreement with the initial ratings assigned, a July 2008 RO letter advised the Veteran of the specific criteria for evaluating the disabilities at issue, and the September 2008 SOC also set forth the criteria for higher ratings. These notices suffice, in part, for Dingess/Hartman. It has been held that, once service connection is granted, the claim is substantiated and additional notice is not required. Thus, while the Veteran has provided specific notice of the applicable criteria and an opportunity to provide evidence and argument in support of his claim, any defect in the notice provided to the Veteran is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Cf. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent evidence associated with the claims file consists of the Veteran's service treatment records (STRs), VA medical treatment records, private treatment records and the reports of VA examinations in November 2006, October 2008 and June 2010. The June 2010 VA examination report contains all findings necessary to evaluate the claims decided on appeal, and this examination report is supplemented by the clinical records associated with the claims folder. Since this examination, the Board finds no credible lay or medical evidence of increased severity of disability to the extent that a higher initial rating is suggested. Thus, no further examination is warranted. See VAOPGCPREC 11-95 (Apr. 7, 1995). The Veteran has reported an interest in filing a claim for disability benefits with the Social Security Administration (SSA). See TriCare clinic record dated July 17, 2008. However, the Board is unaware that the Veteran has ever filed an SSA disability claim. The Veteran, who has been provided the opportunity to identify relevant SSA records with his VCAA letters, has not identified any relevant records in the possession of SSA. At this time, the Board is unaware of any relevant records in the possession of SSA. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that "there must be specific reason to believe [SSA] records may give rise to pertinent information to conclude that they are relevant"). See also Dusek v. Derwinski, 2 Vet. App. 519, 522 (1992) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (claimant cannot wait passively for VA assistance in circumstances where claimant may or should have information in obtaining the putative evidence). In summary, the Veteran has not identified any additional, outstanding records necessary to decide his claims on appeal. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. The Board finds that no additional RO action to further develop the record on either claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims decided herein, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Thoracolumbar spine Disability A. Applicable Legal Authority Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claim such as this one, placed in appellate status by disagreement with the initial rating awards and not yet ultimately resolved, is an original claim as opposed to a new claim for increase. Fenderson, 12 Vet. App. 119 (1999). In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. The Board's analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran has been assigned a 20 percent rating for the orthopedic manifestation of thoracolumbar spine disability under DC 5242-43. The Veteran has also been assigned separate 10 percent ratings for the neurological manifestations of thoracolumbar spine disability - specifically, radiculopathy of the right and left lower extremities under DC 8520. The actual criteria for rating disabilities of the spine are set forth in a General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. That formula provides for assignment of a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability 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 not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire 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) provides that, for VA compensation purposes, 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. 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 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. See also Plate V, 38 C.F.R. § 4.71a. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) 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. VA also has criteria for rating IVDS of the thoracolumbar spine. IVDS (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. These criteria specify that any associated neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be separately rated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). According to the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating contemplates incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under DC 5243, 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 Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, 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, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 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). Notably, pain, alone, does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). The assignment of a particular DC is "completely dependent on the facts of a particular case" and involves consideration of such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Butts v. Brown, 5 Vet. App. 532, 538 (1993). In rating disability involving injury to the peripheral nerves and their residuals, attention is to be given to the site and character of injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Here, the RO has assigned separate 10 percent ratings under DC 8520 for radiculopathy of the right and left lower extremities, which represents mild, incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. The Veteran has neither appealed these rating determinations nor claimed any other neurologic impairment due to service-connected thoracolumbar spine disability. Descriptive words such as "slight," "moderate" and "severe" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. The RO has rated the Veteran's hypertension as noncompensable under DC 7101. A 10 percent rating contemplates hypertensive vascular disease (hypertension and isolated systolic hypertension) manifested by diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; history of diastolic pressure predominantly 100 or more which is controlled by continuous medication. 38 C.F.R. § 4.104, DC 7101. A 20 percent rating is warranted for hypertensive vascular disease manifested by diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. Id. Notably, VA rating criteria separately evaluate hypertension from hypertensive heart disease and other types of heart disease. 38 C.F.R. § 4.104, DC 7101, Note 3. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The-benefit-of-the-doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. B. Factual Summary Historically, the Veteran had a history of low back pain initially treated with epidural steroid injections (ESIs) in 2006. In April 2006, he underwent anterior lumbar antibody fusion at L4-L5 and L5-S1. With respect to hypertension, the Veteran was diagnosed with hypertension after a 5-day blood pressure check in October 2006, which revealed blood pressure readings of 136/96, 135/96, 123/88, 138/95, 140/99, 135/94 and 119/81. He had no history of systolic blood pressures being predominately 160 or more, diastolic pressures predominantly 100 or more, or hypertensive heart disease. On his pre-discharge VA examination in November 2006, the Veteran described a constant, sharp low back pain of 9/10 severity unrelieved by medications such as nonsteroidal anti-inflammatory medications (NSAIDs), Percocet, Oxycodone or Valium. At that time, he denied associated symptoms in the lower extremities. His walking was unaffected and he did not use an assistive walking aid. His activities of daily living remained intact and he denied occupational limitations. However, the Veteran described an inability to sit or stand for longer than 20 minutes, or walk greater than 100 yards. He had difficulty with bending, and could not perform activities such as running or those involving jarring. He denied current symptoms or treatment for his recently diagnosed hypertension. On physical examination, the Veteran had blood pressure readings of 142/98, 117/85 and 125/91. The thoracolumbar spine demonstrated flexion to 70 degrees with 10/10 pain from 7 degrees back to 0 degrees. He had extension to 2 degrees with 9/10 pain. Bilateral lateral flexion was to 10 degrees with 9/10 pain from 10 degrees back to 0 degrees. He had bilateral rotation to 30 degrees with 8/10 pain from 30 degrees back to 0 degrees. There was no change in motion, further pain, lack of endurance, incoordination or weakness with repetitive testing. The examiner indicated that it would require resort to speculation to determine whether the Veteran would experience additional functional loss in his personal environment. There was positive tenderness of the lower back with flinching upon palpation. Straight leg testing caused lower back pain and flinching. The examiner diagnosed, inter alia, residuals of post-operative spine fusion with decreased range of motion and pain as well as hypertension. As noted above, an April 2007 RO rating decision granted service connection for post-operative spinal fusion and assigned an initial 10 percent rating, and granted service connection for hypertension and assigned an initial noncompensable rating. Thereafter, the RO received the Veteran's TriCare treatment records which reflected a prescription of Atenolol to treat his hypertension. He had no systolic blood pressures of 160 or more, or diastolic pressures of 100 or more. A February 2007 treatment record reflected prescriptions of Percocet, OxyContin and Valium for chronic low back pain which worsened with exercise, walking, and bending. The Veteran described a shock-like sensation with radicular pain down the extremities. His physical findings were significant for diffuse, severe tenderness of the entire lumbar region with light pressure enough to cause capillary blanching. He had an antalgic gait. Impressions of herniated nucleus pulposus and radiculopathy were provided. A March 3, 2007 private pain consultation report reflected the Veteran's report of an aching, stabbing, throbbing and constant low back pain of 9/10 severity exacerbated by activities such as walking, lifting, twisting, sitting and bending backwards. On physical examination, the Veteran appeared quite stiff with limited range of motion of flexion-extension of approximately 15-20 degrees with pain limiting further manueviers. Neurologic examination showed no abnormalities on sensory or motor testing. A May 2007 private orthopedic consultation described the Veteran's flexion as "fingertips approximately twenty five inches from the floor" with increasing low back pain as well as 15 degrees of extension. A computed tomography (CT) scan was interpreted as showing L3-4 degenerative disc disease with annular bulging and possible L4-L5 non-union. Another private examination report noted that the Veteran was unable to tolerate a static position. Thereafter, the Veteran's TriCare treatment records reflect that he was prescribed Methadone to treat his low back pain. He was experiencing hypoesthesias of the feet as well as paresthesias in the left posterior thigh. A December 2007 magnetic resonance imaging (MRI) scan of the lumbar spine was significant for straightening of lumbar lordosis as well as slightly narrowed disc space of L4-L5 and L5-S1. An evaluation in April 2008 noted that pain was elicited in all planes of motion. In a rating decision dated June 2008, the RO granted service connection for right and left radiculopathy of the lower extremities, and assigned initial 10 percent ratings for each extremity effective March 1, 2007. The Veteran did not appeal this determination. The Veteran's private medical records reflect that, in August 2008, he underwent revision posterior spinal fusion at L4-5 and L5-SI due to fusion failure and malunion, as well as laminectomy of L5 with partial laminectomy of S1. He required a convalescence period between 6 to 12 months. A September 2008 rating decision by the Denver RO awarded a 20 percent rating for service-connected thoracolumbar spine disability, recharacterized as degenerative disc and joint disease of the lumbar spine, effective to March 1, 2007 (the date following service discharge). The Veteran underwent VA examination in October 2008. At that time, the Veteran reported being unable to work for the last 18 months due to chronic back pain. He described intermittent symptoms of low back pain with restricted motion, fatigue, stiffness and weakness. His pain radiated to the buttocks with numbness of his toes. Range of motion testing was not performed due to his recent fusion surgery. However, it was noted that the Veteran's back pain was still quite severe. There were no gross abnormalities of the lower extremities, but he walked with marked antalgia and a shuffling gait. There was decreased sensation in a light touch distribution from L2-S1 bilaterally, and 1+ symmetric reflexes of the knees and ankles. A December 2008 RO rating decision awarded a temporary total evaluation for convalescence after surgery effective from August 13, 2008 to March 1, 2009. A 20 percent schedular rating was to be assigned effective March 1, 2009. A February 2009 VA clinic record included the Veteran's report of low back pain of 9/10 severity radiating to his left hip. He was noted to be ambulating slowly. The Veteran's TriCare records reflect that, in May 2009, he stopped taking Atenolol due to profound hypotension. An MRI examination was significant only for a slightly dilated and large thecal sac in the lower central canal and sacral canal. A June 2009 sensory conduction study was interpreted as showing mild left L1 upper lumbar nerve and sural nerve impairment, very severe impairment of bilateral L4 (saphenous) nerve, and very severe right L5 (peroneal) and S1 (sural) nerve impairment. An October 2009 letter from a VA physician opined that the Veteran was unable to work due to his service-connected disability. The Veteran underwent additional VA examination in June 2010. He described constant, moderate pain in his low back and legs. He experienced daily episodes of low back stiffness and weakness which mostly lasted 30 to 45 minutes, but could last all day on a few days. He also had moderate weakness in his thighs on a daily basis, but was worse on a few days which made it difficult to climb stairs. He experienced flare-ups of 9/10 severity about once every two weeks, which lasted for 24-hours in duration. During these episodes, he experienced increased weakness and had difficulty getting of the toilet and climbing stairs. He could walk about 1/2 mile, or 15 to 20 minutes at the most. With respect to his hypertension, the Veteran described being diagnosed with hypertension during a time period of severe back pain, and that his blood pressure had dropped with better pain control to the point of no longer taking medications. His current medications included morphine sulfate, Vicodin, a muscle relaxer and an anti-inflammatory medication. On examination, the Veteran had blood pressure readings of 120/80, 118/78 and 108/70. There was no evidence of hypertensive heart disease. The Veteran demonstrated an abnormal gait with shortened steps, a slightly stiff posture, reversed lumbar lordosis, muscle spasm and no movement below the L3 area. The thoracolumbar spine demonstrated forward flexion to 60 degrees, extension to 20 degrees, bilateral lateral flexion to 25 degrees and bilateral lateral rotation to 15 degrees. With repetitive testing, there was a 10 degree loss of flexion to 50 degrees with increased pain, but no fatigue, weakness, lack of endurance or incoordination. There was no ankylosis. The Veteran had positive bilateral straight leg tests with signs of IVDS. The lower extremities demonstrated 4+/5 strength, diminished reflexes, neuritis, abnormal vibratory sense, abnormal two point discrimination from the toes to the ankles, and decreased sensation in the L5-S1 distribution. The Veteran had not obtained any doctor prescribed bedrest during flare-ups as nothing could be done during his severe flare-ups. Thereafter, the Veteran's VA clinic records include a February 2011 evaluation for recurrent lower back muscle spasm. He described his pain as starting in the lumbar region which radiated to his buttocks, but could move to his toes wherein he felt numbness and tingling. His pain worsened with activities such as walking and sitting. He awoke with morning stiffness with a pain of 8/10 severity, which he described as aching with intermittent episodes of sharp and stabbing pain. Physical examination was significant for tenderness to the low back with difficulty in bending forward. He was given an assessment of muscle spasm. A March 2011 VA pain management consultation included the Veteran's report of a worsening of his low back disability for the last 2 years with back pain that radiated down the posterior aspect of his legs which intermittently changed from one leg to the other. There was associated numbness of his toes which affected the whole foot after standing by the end of the day. On examination, the Veteran walked with a slow gait limping on the right. There was lost lumbar lordosis with back flexion limited to 70 degrees and absent extension. An x-ray examination showed fusion from L4-S1 without any laxity or fractures. An MRI showed L3-L4 diffuse disc bulge, and a mild finding at L5-S1 and L4-L5. No scar tissue or fibrosis was reported around the nerve roots. The examiner assessed the Veteran with post-fusion intractable axial low back pain and radiculitis which seemed to affect the L5 and L1 dermatomes. It was noted that the Veteran appeared to be stuck in a cycle of frustration, pain, depression and lack of sleep. C. Analysis At the outset, the Board observes that, while the Veteran has appealed the orthopedic manifestations of his service-connected thoracolumbar spine IVDS, he has not appealed the separate ratings assigned for his neurological manifestations of IVDS affecting both lower extremities. Additionally, the Veteran has been assigned a 100 percent rating for a period of hospitalization and convalescence from August 13, 2008 to February 28, 2009. Thus, the Board's analysis will be limited to evaluating the orthopedic manifestations of IVDS or a possible higher rating based upon incapacitating episodes of IVDS, and exclude consideration of the time period from August 13, 2008 to February 28, 2009. Considering pertinent evidence of record in light of all the above, the Board finds that the criteria for an initial 40 percent rating for the orthopedic manifestations of service-connected thoracolumbar spine disability were met for the time period prior to August 13, 2008. In this respect, the credible lay and medical evidence reflected thoracolumbar spine motion of less than 30 degrees when considering functional impairment on use, but no ankylosis of the entire thoracolumbar spine and no incapacitating episodes of IVDS having a total duration of at least 6 weeks during any 12-month period. Here, the record reflects that the Veteran underwent fusion of L4-L5 and L5-S1 in April 2006. His pre-discharge examination in November 2006 reflected his report of low back pain of 9/10 severity with physical examination showing forward flexion to 70 degrees. However, the Veteran also demonstrated pain when returning to neutral position in all planes of motion. A March 3, 2007 private pain consultation described the Veteran as appearing quite stiff with flexion limited from 15 to 20 degrees. A May 2007 private record described forward flexion as being limited to fingertips to approximately 25 inches from the floor. It was later determined that the Veteran had a failed fusion at L4-L5 which required surgical revision on August 13, 2008. Thus, the findings reflect once instance in March 2007 of forward flexion limited to 15-20 degrees and a description of forward flexion in May 2007 which, in the opinion of the Board, represents very limited flexion. In evaluating this claim, the Board must also consider functional loss due to pain as well as functional loss due to weakness, fatigability, incoordination or pain on movement of the thoracolumbar joint. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. 202 (1995). All of the clinician findings described the Veteran as demonstrating painful motion on all movements of the thoracolumbar spine. The Veteran himself described his back pain being exacerbated by activities such as walking, lifting, twisting, sitting and bending backwards, which is consistent with the clinical findings. The record also reflects findings of partial ankylosis between L4-S1 due to spinal fusion, straightening of lumbar lordosis and severe tenderness on palpation of the entire lumbar region. In addition, the Veteran's treatment included medications such as Percocet, OxyContin, Valium and Methadone. Taking all of these factors into account, and by applying the approximating principles of 38 C.F.R. § 4.7, the benefit-of-the- doubt doctrine of 38 C.F.R. § 3.102 and the functional loss of use provisions of 38 C.F.R. §§ 4.40 and 4.45, the Board finds that the Veteran's service-connected thoracolumbar spine disability more nearly approximated forward flexion of 30 degrees or less when considering functional impairment on use for the time period prior to August 13, 2008. Thus, a 40 percent rating is warranted prior to August 13, 2008. As the maximum rating is assigned for motion loss, the Board finds no legal basis for further consideration of 38 C.F.R. §§ 4.40 and 4.45. Johnston v. Brown, 10 Vet. App. 80, 85 (1997)(consideration of 38 C.F.R. §§ 4.40 and 4.45 is unnecessary where an appellant is in receipt of the maximum rating for limitation of motion). The Board also notes that there is no lay or medical evidence of ankylosis of the entire thoracolumbar spine. The clinical findings of record, while demonstrating surgical fusion from L4-S1, have nonetheless demonstrated active range of thoracolumbar spinal motion in all planes of movement. Thus, this potential means to award a higher schedular rating is not applicable. The Board may also consider whether a higher rating is warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. During the appeal period prior to August 13, 2008, the Veteran did not describe incapacitating episodes of IVDS totalling at least 6 weeks during any 12-month period. Additionally, the medical records do not reflect at least 6 weeks periods of doctor prescribed bed rest as required by the Formula for Rating IVDS Based on Incapacitating Episodes. Thus, there is no evidentiary basis to warrant a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes. Notwithstanding the above, however, the Board finds also that the criteria for a rating greater than 20 percent rating for the orthopedic manifestations of service-connected thoracolumbar spine disability have not been met at any time since February 28, 2009. In this respect, the credible lay and medical evidence has reflected thoracolumbar spine motion of greater than 30 degrees even when considering functional impairment on use, no ankylosis of the entire thoracolumbar spine and no incapacitating episodes of IVDS having a total duration of at least 4 weeks during any 12-month period. Here, the record reflects that the Veteran underwent revision of fusion of L4-L5 and L5-S1 in August 2008. His convalescence period ended February 28, 2009. VA examination in June 2010 measured forward flexion to 70 degrees while a March 2011 VA pain management consultation also measured forward flexion to 70 degrees. The remaining clinic records do not provide any specific description of limitation of forward flexion. Thus, the clinic findings since February 28, 2009 have measured forward flexion to 70 degrees which falls well short of the requirement for a 40 percent rating under the Rating Formula for Diseases and Injuries of the Spine, which requires forward flexion limited to 30 degrees or less. Again, in evaluating this claim, the Board must also consider functional loss due to pain as well as functional loss due to weakness, fatigability, incoordination or pain on movement of the thoracolumbar joint. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. 202 (1995). On repetitive testing in June 2010, the VA examiner found that the Veteran's forward flexion was reduced by another 10 degrees but the thoracolumbar spine was not additionally limited by fatigue, weakness, lack of endurance or incoordination. The record also reflects findings of no movement below the L3 area, abnormal gait, muscle spasm, stiff posture and reversed lumbar lordosis. The Veteran continues to describe severe low back pain with flare-ups of 9/10 severity every two weeks which last one day in duration, and daily flare-ups of stiffness and weakness which last a short time in duration. His medications include morphine sulfate, Vicodin, a muscle relaxer and an NSAID. Taking all of these factors into account, the Board finds that the Veteran's service-connected thoracolumbar spine disability does not meet, or more nearly approximate, the findings for a 40 percent rating. In this respect, even when considering functional impairment on use, the Veteran retains forward flexion of 50 degrees on repetitive testing. The criteria for a 20 percent rating contemplate muscle spasm severe enough to result in an abnormal gait. In the opinion of the Board, the overall orthopedic findings do not warrant a rating greater than 20 percent for the orthopedic manifestations of thoracolumbar spine disability for any period of time since February 28, 2009. The Board also notes that there is no lay or medical evidence of ankylosis of the entire thoracolumbar spine. The clinical findings of record, while demonstrating surgical fusion from L4-S1 with no movement below L3, have nonetheless demonstrated active range of thoracolumbar spinal motion in forward flexion, lateral flexion and rotation. Thus, this potential means to award a higher schedular rating is not applicable. The Board may also consider whether a higher rating is warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. During the appeal period since February 28, 2009, the Veteran did not describe incapacitating episodes of IVDS totalling at least 4 weeks during any 12-month period. Additionally, the medical records do not reflect at least 4 weeks periods of doctor prescribed bed rest as required by the Formula for Rating IVDS Based on Incapacitating Episodes. Thus, there is no evidentiary basis to warrant a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes. In so deciding, the Board has found a factual basis to award a "declining" "staged" rating in this case. As this award is being assigned retrospectively and there is no reduction in payments currently being made, there is no potential prejudice to the Veteran in assigning a lower rating for a subsequent period of time and the provisions of 38 C.F.R. § 3.105 do not apply in this initial rating claim. See Tatum v. Shinseki, 24 Vet. App. 139, 141 (2010); O'Connell v. Nicholson, 21 Vet. App. 89 (2007) (holding that the provisions of 38 C.F.R. § 3.105(e) do not apply when a claimant leaves the appeals process with a higher rating, as there is no diminished expectation); Reizenstein v. Shinseki, 583 F.3d 1331 (Fed Cir. 2009) (holding that the procedural protections of 38 C.F.R. § 3.343 against reductions of total disability ratings were not applicable as it was intended to apply prospectively, and not retroactively in situations where a lump sum payment is made upon completion of staged disability rating process). In so holding, the Board has found the Veteran's report of symptomatology and functional limitations as competent and credible evidence in support of his claim. However, with regard to the extent of severity of those symptoms, the Board finds that the specific, objective clinical findings by the VA physicians greatly outweigh the Veteran's contentions, as the VA examiners used a goniometer to more accurately measure thoracolumbar lumbar spine motion and used their clinical expertise to evaluate the nature and severity of his overall disability. On the matter of the Veteran's rating for thoracolmbar spine since February 28, 2009, there is no doubt as to any material fact to be resolved in the Veteran's favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. III. Hypertension Considering pertinent evidence of record in light of all the above, the Board finds that the criteria for an initial compensable rating for service-connected hypertension have not been met for any time during the appeal period. In this respect, the credible lay and medical evidence shows that, although the Veteran has require the use of medication for hypertension at times during the appeal period, the competent evidence shows that the Veteran's systolic blood pressures have been predominately less than 160, that there is no history of diastolic pressures predominantly 100 or more, and that there is no evidence of hypertensive heart disease. Here, the Veteran was diagnosed with hypertension just prior to service discharge. There is no lay or medical evidence showing that the Veteran had systolic blood pressures predominantly 160 or more or diastolic pressures predominantly 100 or more. Post-service, the Veteran was prescribed Atenolol to control hypertension until 2009 when the Veteran reported discontinuing use of Atenolol due to profound hypotension. There is no lay or medical evidence showing that the Veteran had systolic blood pressures predominantly 160 or more, diastolic pressures predominantly 100 or more, or a diagnosis of hypertensive heart disease. Notably, pre-surgery electrocardiograms performed in August 2008 disclosed no evidence of hypertensive heart disease. The Veteran's most recent VA examination in June 2010 reflected blood pressure readings of 120/80, 118/78 and 108/70 without the use of anti-hypertensive medications. Notably, the Veteran himself has not self-reported any blood pressure readings. He merely argues his entitlement to a compensable rating. Overall, his arguments are greatly outweighed by the documented historical record wherein clinicians took and accurately recorded the Veteran's blood pressure readings. Quite simply, the clinician findings show systolic blood pressures predominately less than 160 and diastolic pressures predominantly less than 100. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). As such, the claim must be denied. IV. Other considerations To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extra-schedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extra-schedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extra-schedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Here, the Veteran describes thoracolumbar spine IVDS symptoms of pain and limitation of motion of the thoracolumbar spine as well as neurologic symptoms of the lower extremities. He has described flare-ups of low back pain. He underwent a surgical procedure during the appeal period. For a certain time period, the Veteran was prescribed anti-hypertensive medications. He has not described any complications or functional limitations caused by his service-connected hypertension. The criteria in the General Rating Formula for Diseases and Injuries of the Spine, and the General Rating Formula for Rating IVDS on Incapacitating Episodes, provide differing levels of disability ratings based upon factors such as limitation of motion, ankylosis, abnormal spinal contour, chronic neurologic impairment and incapacitating IVDS episodes. Additionally, the provisions of 38 C.F.R. §§ 4.40 and 4.45 allow for consideration of any factors affecting functional impairment which might not be addressed in the schedular criteria. Furthermore, the criteria of 38 C.F.R. § 4.30 provides for a convalescence rating following surgery. The criteria for evaluating hypertension include differing levels of disability ratings based upon blood pressure readings, or the need for use of medications when a specified blood pressure reading threshold has been made. VA's rating schedule also contemplates separately rating a progression to hypertensive heart disease. In the opinion of the Board, all credibly demonstrated symptomatology and impairment of function related to the thoracolumbar spine and hypertension disabilities, either considered separately or combined, are adequately contemplated in the assigned schedular ratings evaluations. As such, there is no basis for extra-schedular referral in connection with these claims on appeal. See Thun, 22 Vet. App. 111, 114-15 (2008). The Board further notes that a claim for a TDIU, if reasonably raised, would essentially be a component of the claims for higher initial ratings on appeal. See Rice, 22 Vet. App. 447 (2009). As noted above, the RO has awarded TDIU effective October 28, 2009 but the record reflects that the issue of TDIU was reasonably raised prior to the effective date of award. The issue of entitlement to TDIU for the time period prior to October 28, 2009 is addressed in the remand, below. ORDER For the time period prior to August 13, 2008, an initial 40 percent rating for the orthopedic manifestations of service-connected thoracolumbar spine disability is granted, subject to the legal authority governing the payment of VA compensation. For the time period since February 28, 2009, a rating greater than 20 percent rating for the orthopedic manifestations of service-connected thoracolumbar spine disability is denied. An initial, compensable rating for service-connected hypertension is denied. REMAND The Veteran has appealed a noncompensable rating assigned for scar residuals from excisions of right foot fibromas. Notably, the Veteran is also service-connected for plantar fasciitis of the right foot which has been separately rated. He limited his appeal to the "[p]ost operative scar right foot [which] should be 10%, tender and hurts when touched." See Veteran's NOD received September 2007. See also Veteran's statement received in September 2008. The Veteran has undergone VA examinations for his right foot scars in November 2006 and June 2010. Neither of these examinations evaluated whether the residual right foot scars were painful on examination. See 38 C.F.R. § 4.118, DC 7804 (prior to Oct. 23, 2008) (providing a 10 percent rating for superficial scars that are painful on examination). The Veteran is competent to report a pain sensation, but the source of his pain is complicated by a co-existing right plantar fasciitis. The Board must return the June 2010 VA examination report as inadequate for rating purposes. 38 C.F.R. § 4.2. As discussed above, the Veteran raised the issue of entitlement to TDIU prior to the effective date of award assigned by the RO. He reports last working full-time in February 2007. See VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) received in October 2009. The Board requires medical opinion to determine whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment for the time period prior to October 28, 2009. The Veteran is hereby advised that failure to report to any scheduled examination(s), without good cause, may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examinations sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. Regarding VA medical records, the record reflects that the Veteran has been treated for his service-connected disabilities at the Cleveland VA Medical Center (VAMC), and pertinent records from that facility dating to March 2012 are associated with the claims folder (Virtual VA). Hence, there remains the possibility that more recent records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Cleveland VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated since March 2012. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The Board points out that the Veteran has referenced having a private provider of treatment, Dr. Rubino. On remand, the Veteran should be given another opportunity to provide, or to provide appropriate authorization for the Veteran to obtain, medical evidence from Dr. Rubino. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the Cleveland VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated since March 2012. The RO must follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the Veteran and his representative a letter requesting that he provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO should specify what evidence VA will provide and what evidence the Veteran is to provide. The RO should specifically request that the Veteran provide, or provide appropriate authorization for the RO to obtain, all outstanding records of treatment records from Dr. Rubino. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician at a VA medical facility, to evaluate the severity of his residuals scars from right foot fibroma excisions. The entire claims file, to include a complete copy of this REMAND, and copies of any relevant Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting individual prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should identify, to the extent possible, the two separate scars resulting from right foot fibroma excisions. In addition to measurement(s), the examiner should describe all scarring characteristics to include whether the scar(s) is/are painful on examination and/or whether the scar(s) result(s) in functional impairment of the part affected. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should also forward the Veteran's claims file to an appropriate physician at a VA medical facility for opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment consistent with his educational and vocational background for the time period from February 2007 to October 28, 2009? The entire claims file, to include a complete copy of this REMAND, and copies of any relevant Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After accomplishing all requested action, as well as any additional action deemed warranted, adjudicate the claims remaining on appeal in light of all pertinent evidence and legal authority. 8. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs