Citation Nr: 1338810 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 06-27 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for residuals of a head injury, including scars to the left eyebrow and nose, secondary to a service-connected disability. 2. Entitlement to service connection for a left shoulder disability, secondary to a service-connected disability. 3. Entitlement to a rating in excess of 20 percent prior to August 29, 2005, in excess of 40 percent from August 29, 2005 to September 14, 2005, in excess of 20 percent from November 1, 2005 to August 24, 2006, and in excess of 40 percent from August 25, 2006, to September 20, 2007, for a low back disability 4. Entitlement to a rating in excess of 40 percent as of January 1, 2008 for a low back disability. 5. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy prior to November 29, 2012 and in excess of 20 percent thereafter. 6. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy prior to November 29, 2012 and in excess of 30 percent thereafter. 7. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1961 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in March 2006, October 2006, and April 2008 by or on behalf of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2011, this matter was remanded to afford the Veteran a hearing before a member of the Board. In September 2012, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). In October 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. for additional development, to include obtaining additional medical records and VA medical opinions. The action specified in the October 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). On appeal, the RO granted the issue of entitlement to service connection for a right shoulder disability, constituting a full grant of this issue. Since the case has been returned to the Board, the Veteran has submitted additional medical records in support of his claim, but waived RO review in a May 2013 statement. The issue of entitlement to a temporary total disability evaluation following a May 2010 low back surgery has been raised by the record, but has not been adjudicated by the RO. This matter is inextricably intertwined with the pending claims for increased ratings for low back disability and lumbar radiculopathy. Accordingly, it is referred to the RO for appropriate development. The issues of entitlement to service connection for a left shoulder disability and residuals of a head injury, and entitlement to a rating in excess of 40 percent as of January 1, 2008 for a low back disability and entitlement to higher ratings for bilateral lower extremity radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to August 29, 2005, from August 29, 2005 to September 14, 2005, from November 1, 2005, to September 20, 2007, the Veteran's low back disability did not result in unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having at least a six week duration in a twelve month period. 2. Prior to August 29, 2005 and from November 1, 2005, to August 24, 2006, the Veteran's low back disability did not result in forward flexion of the thoracolumbar spine of 30 degrees or less, favorable or unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a duration of at least four weeks but less than six weeks in a twelve month period. 3. From August 29, 2005 to September 14, 2005, and from August 25, 2006 to September 20, 2007, the Veteran's low back disability was approximated by no more than forward flexion of the thoracolumbar spine of 30 degrees or less, favorable or unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a duration of at least four weeks but less than six weeks in a twelve month period. 4. The Veteran is unable to find or maintain substantially gainful employment due to his service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent prior to August 29, 2005, in excess of 40 percent from August 29, 2005 to September 14, 2005, in excess of 20 percent from November 1, 2005 to August 24, 2006, and in excess of 40 percent from August 25, 2006, to September 20, 2007, for a low back disability have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237, 5243 (2013). 2. The criteria for entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R., Part 4 (2013). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, 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. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. Low Back Strain The Veteran's low back disability is rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a (2013). Under the General Formula, diseases and injuries to the spine are to be evaluated under Diagnostic Codes 5235 to 5243 as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease; Unfavorable ankylosis of the entire spine ............................................................. 100 Unfavorable ankylosis of the entire thoracolumbar spine ...................................... 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine ................................................................................................ 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine ........................................................................................... 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis ...................................... 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height .................................................................................. 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): 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): Round each range of motion measurement to the nearest five degrees. Note (5): 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): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months ........................................................................................................ 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months ............................................................... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months ............................................................. 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months ............................................................. 10 Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a (2013). Additionally, under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran was initially granted service connection for a low back strain in June 1974. On August 29, 2005, the RO received his increased rating claim that is currently on appeal, seeking a disability evaluation in excess of 20 percent. In a March 2006 rating decision, the RO assigned a 40 percent evaluation from August 29, 2005, the date of the Veteran's increased rating claim, to September 14, 2005. Prior to August 29, 2005 There is limited evidence regarding the state of the Veteran's low back disability in the months preceding his September 15, 2005 surgery. A March 2005 MRI showed severe degenerative disc disease of the lumbar spine. Private treatment records from Great Lakes Brain and Spine Institute, P.C. note complaints of persistent low back pain unrelieved by epidural injections. However, there is no evidence showing forward flexion of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of any duration. Accordingly, the Board finds that there is insufficient evidence to award a disability rating in excess of 20 percent prior to the date of the Veteran's August 29, 2005 increased rating claim. August 29, 2005 to September 14, 2005 Additionally, there is no evidence that between August 29, 2005 and September 14, 2005, establishing that the Veteran's low back disability was characterized by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of at least six weeks duration during the preceding twelve months. Accordingly, entitlement to a disability rating in excess of 40 percent cannot be granted from August 29, 2005 to September 15, 2005. November 1, 2005 to August 24, 2006 The period of total disability assigned during the Veteran's convalescence following his September 15, 2005 lumbar surgery ended on October 31, 2005 and the Veteran was assigned a disability rating of 20 percent for his service connected low back disability as of November 1, 2005. In October 2005, the Veteran was afforded a VA examination of his lumbar spine. At that time, he reported that prior to his September 15, 2005 surgery, his low back pain was 8/10, but was now 2/10. Prior to the surgery, he had pain radiating down his right leg, which was relieved by the surgery, but he complained that he now had pain radiating into the left leg. He reported that the symptoms of pain and numbness in the left lower extremity make it difficult to walk and he experiences instability, falling approximately once a week. He occasionally used a cane for support. He described flare-ups that occurred on a weekly basis, lasting two to three days. He indicated that during these periods, his pain increases to 10/10 and his range of motion and function are greatly diminished. The Veteran's gait was observed to be normal and narrow-based. He was able to walk on his toes and heels and rise from a squat without difficulty. On examination, some flattening of the lumbar lordosis was noted. There was tenderness to palpation over the lumbar spine and over the left sciatic notch. Forward flexion was 0 to 45 degrees. Extension was from 0 to 10 degrees. Side bending was from 0 to 30 degrees bilaterally. Lateral rotation was also from 0 to 30 degrees bilaterally. The Veteran reported pain at the end points of all back movement; however, there was no additional loss of motion following repetitive testing. Straight leg testing was negative bilaterally. Deep tendon reflexes were intact bilaterally at the patellar tendons and absent at the Achilles tendons. The Veteran had full strength in the bilateral lower extremities. Sensation was absent to monofilament testing bilaterally from the feet to the knees; however, the examiner attributed this to diabetic peripheral neuropathy, rather than lumbar radiculopathy. Also reviewed were the available VA and private treatment records, including records from Great Lakes Brain and Spine Institute, P.C. from September 2005 through January 2006 which show the Veteran doing well following his lumbar surgery. The Board can find no evidence that during the period from November 1, 2005 until August 25, 2006 the Veteran's low back disability was characterized by forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the thoracolumbar spine, or incapacitating episodes of at least four weeks duration during the preceding twelve months. Accordingly, a disability evaluation in excess of 20 percent cannot be granted during this period on appeal. Although the Veteran complained of additional functional impairment during flare-ups, objective testing revealed that he did not have any additional range of motion loss following repetitive testing. See Deluca, supra. Thus, a higher rating may not be rated on this basis. August 25, 2006 to September 20, 2007 On August 8, 2006, the Veteran was seen at Great Lakes Brain and Spine Institute with complaints of low back pain of two weeks duration which began after he stepped out of a van. X-rays showed that hardware placed during his past surgery was intact and although he had degeneration at L1-2 and L2-3, he was asymptomatic on examination. He had absolutely no tenderness to palpation of the spine. However, in an August 8, 2006 letter, the Veteran's neurosurgeon, Dr. N.K., advised that although the Veteran was overall doing well after his surgery and was asymptomatic, he should not return to work as any further injury to his back would likely necessitate additional surgery. In August 2006, the Veteran was also afforded a VA examination. At that time, the Veteran complained of low back pain that was constant and dull. This pain constantly radiates down his thighs and legs to his ankles. He also described numbness and weakness in both lower extremities on a daily basis. He complained of unsteadiness and reported falling about once a week. The Veteran's condition was aggravated by bending, lifting, and walking, and was improved with rest and medication. The Veteran reported flare-ups during which pain is 10/10 which occur every three to six months and last two to three days. He further reported that during these flare-ups, his range of motion and function are more severely limited due to pain, weakness, incoordination, and fatigability. The Veteran's described two periods of incapacitation in the previous two months during which he "can't get up and can't get down." He claimed that each episode lasted seven or eight days and that his neurosurgeon had recommended rest, heat, and ice. The Veteran also reported at that time that he had seen his neurosurgeon, Dr. N.K., two or three weeks ago and was told that his back was in such bad shape that there was nothing he could do except use ice and heat and lie down as much as possible to rest. However, the Board notes that the available records from Dr. N.K. show that when the Veteran was seen a few weeks prior to his August 2006 VA examination, he was considered essentially asymptomatic and there is no indication that bedrest was either required or prescribed. On examination, the Veteran had a flattened lumbar curvature. There was tenderness to palpation over the right lower lumbar spine, right sacroiliac joint, and right sciatic notch. A well-healed, but depressed surgical scar was noted over the lower back. Gait was slightly antalgic, with a shortened stance phase on the left. The Veteran was able to rise on heels and toes and from a shallow squat with difficulty and holding onto the examiner for support. He was unable to do tandem walk. Romberg test was positive for instability while standing with feet together and eyes closed. Forward flexion was from 0 to 45 degrees with a grimace and complaints of pain. Extension was from 0 to 10 degrees with pain at 10 degrees. Lateral bending was from 0 to 20 degrees bilaterally with grimace and complaint of pain. Lateral rotation was from 0 to 15 degrees bilaterally with a grimace and complaint of pain. Repetitive testing did not result in additional loss of motion. Deep tendon reflexes were absent in the Achilles tendons bilaterally and strength was slightly diminished in the lower extremities. Sensation to light touch was diminished in the lower extremities below the knees to the feet. Straight leg raising was positive on the right. The examiner diagnosed the Veteran with low back strain with disc protrusion, lumbar spondylosis, hypertrophic facet arthropathy, sciatic dirt and damage, and degenerative disc disease. In an October 2006 rating decision, the RO increased the Veteran's disability rating for his low back disability from 20 percent to 40 percent, effective August 25, 2006, the date of the Veteran's VA examination. The Veteran was also granted entitlement to service connection for radiculopathy of the left and right lower extremities, effective March 30, 2006, the date he filed a claim seeking service connection for those disabilities; and these matters will be discussed separately. At a May 2007 DRO hearing, the Veteran complained that a 40 percent disability rating for his low back was inadequate because of his degree of pain on range of motion. The Veteran and his spouse testified that he is unable to walk any distance, perform chores around the home, or even sit for any entire meal. In August 2007, the Veteran was again seen at Great Lakes Brain and Spine Institute, P.C. with complaints of intermittent weakness and giving way in the left lower extremity. The Veteran's neurosurgeon, Dr. N.K., recommended additional surgery, which was performed September 21, 2007. While the Veteran argues that a higher rating should be assigned based on limitation of motion, there is no evidence of unfavorable ankylosis of the entire spine, which is required for a higher rating of 60 percent. Under VA regulations, incapacitating episodes have a very specific definition. Prescribed bedrest by a physician is required. Here, there is no evidence that the Veteran was prescribed at least six weeks of bed-rest by a physician each year. Accordingly, a disability rating in excess of 40 percent cannot be assigned under the Schedule for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Extraschedular Ratings Finally, the Board has considered whether the Veteran's disabilities warrant referral for extraschedular consideration. 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 extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only 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). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). 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 extraschedular 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 extraschedular rating. Id. In this case, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. The Veteran's symptoms of back pain and reduced mobility are not unusual or different from those contemplated by the schedular criteria. The available schedular evaluations for these service-connected disabilities are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is not required. See Thun, supra. For all the above reasons, entitlement to a higher disability rating for the Veteran's service connected low back strain with degenerative disc disease is not warranted prior to January 1, 2008. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). TDIU The Veteran is seeking entitlement to a total disability rating, arguing that he is unable to work due to his service connected disabilities. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002). "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2013). A total disability evaluation may be assigned where the schedular evaluation is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). The Veteran is service connected for low back strain with degenerative disc disease, currently assigned a 40 percent disability rating; right lower extremity neuropathy, currently assigned a 20 percent disability rating; left lower extremity neuropathy, currently assigned a 20 percent disability rating; and torn rotator cuff of the right shoulder, currently assigned a 20 percent disability rating. The Veteran's total disability rating is currently 70 percent. The Veteran also has a number of non-service connected disabilities including diabetes mellitus with diabetic neuropathy, hypertension, obstructive sleep apnea, gastroesophageal reflux disease, and amputation of the right hand. At issue is whether the Veteran is unable to find or maintain substantially gainful employment solely because of his service connected disabilities. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether the Veteran is entitled to a TDIU, neither his non-service connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The United States Court of Appeals for Veterans Claims ("Court") has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The record shows that the Veteran has not worked since February 1999. Prior to that time, the Veteran worked as a supervisor for the State of Michigan Department of Corrections for almost thirty years. The January 2008 VA examiner opined that the Veteran retained the residual functional capacity to perform sedentary work, but that due to the inability to be relieved of chronic pain and daily medication usage he was unlikely able to sustain the concentration and the persistence required to complete the ordinary tasks of a job in an eight hour day or a five day, forty hour week. The examiner did not specifically clarify whether the Veteran's chronic pain or daily medication use was associated with his service-connected disabilities, although as the examination was of the Veteran's service connected low back and lower extremity disabilities, the association is implied. The Veteran has reported pain in his low back, lower extremities, right shoulder, and VA treatment record list prescriptions for oxycodone and tramadol "for pain" without indicating that they are for a specific disability. Thus, the Board finds that the Veteran's pain and medication are at least in part due to his service connected disabilities and to the extent that it is simply not possible to determine how much of the Veteran's chronic pain and daily medication use are due to his service connected disabilities rather than his non-service connected disabilities, the Board will resolve any ambiguity in the Veteran's favor. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a non-service connected disability and a service connected disability in the absence of medical evidence which does so). The November 2012 VA examiner also indicated that the Veteran's low back disability would preclude lifting, bending, twisting, prolonged standing or walking, or stairs. He would be limited to sedentary employment only. The examiner noted that the Veteran requires narcotic pain medication on a daily basis which would preclude commercial driving or the use of machinery or power tools. The Veteran and his spouse have also testified that he has essentially become incapable of most, if not all activities of daily living and spends most of his time lying down to relieve his back pain. The objective medical evidence does show that the Veteran's service connected disabilities, particularly his low back disability, cause severe impairment due to pain, weakness, loss of mobility, and impaired concentration and stamina. While it is theoretically possible that there exists a sedentary job which would permit the Veteran to maintain substantially gainful employment, as a practical matter, it seems unlikely that the Veteran is capable of maintaining anything other than marginal employment given his significant service-connected impairment and long absence from the labor force. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that he is unable to get or maintain substantially gainful employment due to his service-connected disabilities and entitlement to TDIU is granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board notes that the United States Court of Appeals for Veterans Claims (Veterans Court), in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), clarified VA's notice obligations in increased rating claims. The Federal Circuit recently reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual Veterans or to notify them that they may present evidence showing the effect that worsening of a service-connected disability has on their employment and daily life for proper claims adjudication. For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that notice specific to individual Veterans is no longer required in increased compensation claims). Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in October 2005, March 2006, August 2006, and June 2007. These letters informed the Veteran of what evidence is required to substantiate his claims, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records and records from the Social Security Administration (SSA). The Veteran submitted private medical records and was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. The appellant was afforded a VA medical examination in October 2005, August 2006, January 2008, and November 2012. These examinations were based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disability as well as the functional impairments resulting therefrom. These examination reports are adequate for rating purposes. See 38 C.F.R. § 4.2. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to a rating in excess of 20 percent prior to August 29, 2005, in excess of 40 percent for the period from August 29, 2005 to September 14, 2005, in excess of 20 percent from the period from November 1, 2005 to August 24, 2006, in excess of 40 percent from August 25, 2006 to September 21, 2007 for a low back disability is denied. Entitlement to TDIU is granted. REMAND The Veteran is also seeking service connection for residuals of a head injury and a left shoulder disability. He has argued that these disabilities were either caused or aggravated by his service-connected low back strain with degenerative disc disease and lumbar radiculopathy. Specifically, he has argued that he frequently falls because of pain and weakness in the lower extremities secondary to his service connected disabilities. In January 2013, the Veteran was afforded a VA Traumatic Brain Injury (TBI) examination, as well as a VA neuropsychological screening, to evaluate any possible residual symptoms of a head injury. The examiner found that the Veteran did not currently suffer from a traumatic brain injury and that any residual symptoms the Veteran has are unlikely related to an in-service fall or a fall in 1995. However, the examiner failed to address several conditions the Veteran has alleged in his testimony before the Board are a result of a head injury, including headaches and scars on the eyebrow and nose. The Veteran has testified that he has scars on his nose and eyebrows, which he claims he sustained after falling secondary to his service connected disabilities. He has also testified that he has suffered from headaches since the injury. Both scars and headaches are observable conditions that the Veteran is competent to describe, and headaches are listed on the Veteran's Problem List in his VA outpatient treatment record. It is unclear from the January 2013 VA examination whether the examiner found that the Veteran does not currently suffer from headaches or scars on the eyebrow and nose or if he simply failed to address whether these conditions could have been caused by a head injury secondary to the Veteran's service connected disabilities. Additionally, the examiner focuses on the Veteran's head injuries in-service and in 1995; however, the Veteran's September 2012 hearing testimony indicated that the head injury he was referring to was much more recent. While the Veteran unfortunately did not provide a specific date, the Board does note that a June 15, 2011 treatment record from his primary care physician, Dr. C.C., notes that the Veteran fell in May while in Tennessee and hit his head hard. He was treated in an emergency room, but the records of this are not available for review. Accordingly, on remand, the Veteran is asked to provide a signed release for the emergency room where he was treated in Tennessee in May 2011 for a head injury. The Veteran should also be scheduled for a new VA examination. The examiner is asked to diagnose any conditions the Veteran currently suffers from due to a past head injury, to include headaches and facial scarring. The examiner is also asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's fall was secondary to a service-connected disability, to include the Veteran's low back strain with degenerative disc disease and neuropathy of the bilateral lower extremities. In December 2012, the Veteran was afforded a VA examination of his left shoulder disability. The VA examiner opined that the Veteran's left shoulder injury was the result of a slip and fall accident prior to the onset of his instability from his service-connected back disability and therefore his left shoulder disability was not caused or aggravated by the Veteran's service-connected disability. However, the Veteran is not claiming that his initial left shoulder injury was due to his service connected low back disability, rather, he is claiming that repeated falls due to his service connected disabilities since the initial injury have permanently aggravated his left shoulder disability. The VA examiner did not adequately address the issue of aggravation. Accordingly, a remand is required to obtain an addendum to the December 2012 medical opinion. The examiner is asked to determine whether it is at least as likely as not (fifty percent or greater) that the Veteran's left shoulder disability was permanently aggravated (worsened) beyond the natural progression of the disability due to the Veteran's service connected disabilities. The Veteran underwent surgery on his low back in May 2010, but the length of his recovery is unclear from the available evidence. He appears to be arguing for a temporary total rating. This raised claim is inextricably intertwined with the pending claims for higher ratings for low back disability and bilateral lower extremity radiculopathy. On remand, the Veteran should be afforded a new VA examination which assesses the current severity of his lumbar spine and radiculopathy. It is noted that there appears to be some overlap in symptomatology between radiculopathy which is service-connected, stemming as residuals of his low back disability and non-service-connected diabetic residuals. This matter should be clarified on remand. Accordingly, the case is REMANDED for the following action: 1. Ensure that all current VA outpatient treatment records are associated with the Veteran's claims folder. 2. Ask the Veteran to sign and complete VA Form 21-4142 authorizing the release of records of his May 2011 emergency room treatment for a head injury in Tennessee. 3. Return the claims folder to the VA examiner who examined the Veteran's left shoulder in December 2012 (or if he is not available, refer the claims file to an appropriately qualified physician). The examiner, should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail. The December 2012 VA examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's left shoulder disability was permanently aggravated (worsened) beyond the natural progression of the disability due to the Veteran's service connected disabilities. A rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 4. Schedule the Veteran for a new VA medical examination of his claimed residuals of a head injury. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. a. The examiner is asked to diagnose any conditions the Veteran currently suffers from due to a past head injury, to include headaches and facial scarring. b. The examiner is also asked to opine whether it is at least as likely as not (fifty percent or greater) that any of the diagnosed conditions is secondary to a service connected disability, to include the Veteran's low back strain with degenerative disc disease and neuropathy of the bilateral lower extremities. A rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 5. Additionally, schedule the Veteran for new VA orthopedic and neurological examinations to assess the severity of his low back disability with lower extremity radiculopathy. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 6. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs