Citation Nr: 1340488 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 02-12 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether the Veteran is entitled to an extraschedular evaluation in excess of 40 percent for service-connected low back disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 4, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from May 2002 and February 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In a May 2004 decision, the Board granted an increased evaluation for the Veteran's low back disability (from 20 percent to 40 percent). The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). In an August 2006 Order, the Court vacated the May 2004 Board decision. In June 2007, the Board Remanded the matter for referral to the Director of the Compensation and Pension Service (C&P). By a determination issued on August 30, 2007, the Director, C&P Service, determined that the Veteran was not entitled to extraschedular consideration under 38 C.F.R. § 3.321(b) for an evaluation in excess of 40 percent for lumbar disability. In December 2009, the Board denied entitlement to a rating in excess of 40 percent for the Veteran's lumbar disability on both a schedular and extraschedular basis. The issue of entitlement to a TDIU was Remanded. The Veteran appealed the Board's 2009 decision. The CAVC, in November 2011, affirmed the Board's denial of a schedular evaluation in excess of 40 percent for the Veteran's low back disability. The portion of the decision that denied a rating in excess of 40 percent on an extraschedular basis was vacated and remanded. In April 2012, the Board remanded the claim for an increased rating for low back disability and the claim for TDIU based on the Veteran's November 2010 request for a hearing before the Board via video conference. The Veteran was afforded a Videoconference hearing before the Board, held by the undersigned, in July 2012. A copy of the hearing transcript has been associated with the record. The Board Remanded the appeal in September 2012. The claim for TDIU prior to May 4, 2011, which was Remanded in the Board's July 2013 decision, has not yet been addressed, and is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The preponderance of the probative evidence throughout the appeal as a whole establishes that the Veteran's lumbar disability, considered alone, does not present an exceptional or unusual disability picture, present marked interference with employment, or result in frequent hospitalizations, resulting in disability in excess of the assigned 40 percent evaluation for that disability. 2. If impairment due to side effects of pain medication is not specifically encompassed by the rating criteria, the impairment due to those side effects is not of such severity as to warrant referral for extraschedular consideration for an evaluation in excess of 40 percent for the service-connected lumbar disability. CONCLUSION OF LAW An extraschedular evaluation in excess of 40 percent for service-connected lumbar disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5237-5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran initially sought an evaluation in excess of 20 percent for his lumbar disability. An increase in the schedular evaluation to 40 percent was granted. That schedular rating was affirmed by the Court and is thereby deemed final. The Veteran contends that he is entitled to an extraschedular evaluation in excess of 40 percent for his service-connected lumbar disability. Before addressing this contention, the Board will first address VA's notice and assistance duties to the Veteran with regard to substantiating the claim for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These 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 v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Further, where the Veteran has been afforded a personal hearing, VA must insure that the issue(s) have been fully explained and suggestions are made with regard to the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). The appeal for an extraschedular evaluation arises from a claim for an increased rating initiated in 2001. This appeal has been before the Board six times and before the CAVC twice. The Veteran has received numerous written communications regarding schedular and extraschedular ratings since the initial claim was submitted in May 2001. The CAVC has affirmed the schedular assignment of a 40 percent rating. The Veteran's statements, his testimony before the Board, the arguments on his behalf before the CAVC, and other communications in the multiple volumes of claims files demonstrate that the Veteran has received adequate notice. Thus, the Veteran has demonstrated that, if there was any defect in the content or timing of notice to him about criteria for an extraschedular rating, such notice defect was not prejudicial. Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. In this case, the Veteran has supplied evidence and testimony regarding the effects of his lumbar disability on his employment, activities of daily living, and general functioning. The Veteran's VA treatment records have been obtained, and well as private records. Records were requested from the Social Security Administration (SSA). SSA advised VA that the records were destroyed, and are not available. The Veteran was notified of the unavailability of the records. The Veteran has provided letter from SSA which state that the Veteran meets the criteria for unemployability, but did not meet the insurance criteria (quarters worked for which taxes were paid for SSA benefits) for SSA disability coverage. The Veteran has been afforded numerous opportunities to submit and identify evidence during the more than 12 years since the claim was filed. The actions directed by the Board in its July 2013 Remand, in compliance with the November 2011 CAVC Order, have been completed as directed. As the Veteran has not identified any additional evidence pertinent to the exceptional nature of his disability picture, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Appellate review may proceed. Claim for extraschedular evaluation 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. In this case, the Veteran contends that the 40 percent evaluation assigned for his lumbar disability under the rating schedule is not adequate to compensate him for employment impairment due to his back disability. If a 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," under 38 C.F.R. § 3.321(b)(1), the Director of C&P Service, is authorized to approve an extraschedular evaluation. The threshold criterion for referral of extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO (or the Board) must 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. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms," related factors such as marked interference with employment and frequent periods of hospitalization. If this is the case, then matter must be referred to the Under Secretary for Benefits or the Director, C&P, for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. In order to determine whether the available schedular evaluations for the Veteran's service-connected lumbar disability are adequate to address his symptoms of lumbar disability, the Board must review the rating criteria applicable to that disability. Under DC 5295, as in effect when the Veteran submitted his claim in May 2001, lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position warranted a 20 percent rating. 38 C.F.R. § 4.71a, DC 5295 (2001). Severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion warranted a 40 percent rating. A 40 percent rating was also warranted for severe limitation of motion. DC 5293, as in effect prior to September 23, 2002, provided a 10 percent rating for mild intervertebral disc syndrome symptoms. A 20 percent rating was assigned for moderate symptoms with recurring attacks. A 40 percent evaluation required severe symptoms with recurring attacks and intermittent relief. Intervertebral disc syndrome manifested by pronounced persistent symptoms, and compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or neurological findings appropriate to the site of the diseased disc, with little intermittent relief, warranted a 60 percent evaluation. DC 5293. A 60 percent rating was the maximum schedular evaluation available for lumbar disability. The criteria for evaluating disability of the spine were revised, effective September 26, 2003. Disabilities of the spine are to be evaluated either under the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, following DC 5243. Those formulas became effective in 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243). According to the General Rating Formula, a 40 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Combined range of motion of the thoracolumbar spine includes the range of flexion, with normal defined as 0 degrees to 90 degrees, extension, with normal defined as 0 degrees to 30 degrees, lateral flexion, with normal described as 0 to 30 degrees to the right and 0 to 30 degrees to the left, and rotation, defined as 0 degrees to the 30 degrees of forward rotation on the right and on the left and 0 to 30 degrees of backward rotation on the right and on the left. 38 C.F.R. § 4.71a, Plate V. Under Diagnostic Code (DC) 5243, a 40 percent rating is assigned for incapacitating episodes with a total duration of at least four weeks, but less than six weeks, during the past 12 months. A 60 percent rating is assigned if incapacitating episodes have a duration of at least six weeks during the past 12 months. Objective neurological abnormalities, including, but not limited to bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Facts and analysis In May 2001, the Veteran submitted a claim for an increased evaluation for a lumbar disability, then evaluated as 20 percent disabling. Only the extraschedular evaluation is at issue. The Veteran is entitled to application of the rating schedule as in effect in May 2001, if that rating schedule is more favorable to the Veteran than the current version of the rating schedule. The current version of the rating criteria may be applied in this case if the current version is more favorable to the Veteran than the prior criteria, but only from the effective date of the revised schedular standards. The Board has considered the issue on appeal under both the 2001 version and the current version of the rating schedule in the discussion below to determine if one version is more favorable than the other during a period when either version is applicable. In its 2006 Remand of the matter, the Court noted that the record was "replete" with references to the Veteran's service-connected low-back disability as the basis for his inability to work. The Court noted in particular that there were statements from employers indicating that the back condition inhibited the Veteran's job performance and that an employer terminated the Veteran due to excessive absenteeism due to "back difficulties" which forced him to miss work. Appleford v. Nicholson, 21 Vet. App. 404, 405 (2006). The Board Remanded the claim for consideration of an extraschedular evaluation in June 2007. After the Court's 2006 Order, and while a claim for TDIU was under development, the Veteran submitted evidence that his use of methadone for back pain caused prospective employers to reject his applications for work. The Veteran submitted a March 2007 letter from an employer who stated that the Veteran could not be hired as a delivery driver because of his use of prescription methadone. The Veteran submitted an April 2007 letter from a potential employer who stated that the Veteran could not be hired in a position which required servicing electronic equipment and driving company vehicles because of his use of prescription methadone. Methadone is a synthetic opioid. It is used medically in managing severe chronic pain, owing to its long duration of action, powerful effects, and very low cost. Dorland's Illustrated Medical Dictionary 1164 (31st ed. 2007). The most common adverse reactions or side effects of methadone use include lightheadedness, dizziness, sedation, nausea, vomiting, and sweating. It is common knowledge that use of methadone can impair driving ability. See Wikipedia, "Methadone," http://en.wikipedia/wiki/Methadone (as of November 18, 2013, 13:02 GMT). The Veteran contended that, because of his use of methadone for pain due to his service-connected back disability, potential employers "turned down" his applications for employment. In a June 2007 decision, the Board determined that the Veteran met the criteria for referral for extraschedular consideration for an evaluation in excess of 40 percent for lumbar disability because of the impact of lumbar disability on the Veteran's attendance at work when he was working, his long-term unemployment, and the impact on employability, as shown by the statements from potential employers. In July 2007, the RO referred the Veteran's file to the Director of Compensation and Pension Services (C&P Director) for extraschedular consideration. In August 2007, the C&P Director determined that the symptomatology resulting from service-connected lumbar disability was not more disabling than the 40 percent evaluation reflected, and that the Veteran was not unemployable as a result of his service-connected lumbar disability. The Director noted that the Veteran was being treated for more than 10 other medically-diagnosed disorders for which service connection was not in effect, and denied an extraschedular evaluation in excess of 40 percent. See August 30, 2007 Memorandum. The Veteran argued during this period that he had radiating pain due to his back disability. He attributed all symptoms in his lower extremities to his "back." The statements by the Veteran and the statements of his employers discussed by the Court in its 2006 decision do not separate out absenteeism or inability to perform work due to lower extremity polyneuropathy from disability due to the service-connected lumbar disability. However, the polynueropathy of the lower extremities experienced by the Veteran is unrelated to his service-connected back disability. The Court affirmed that finding. 2011 WL 5839072 (Nov. 22, 2011). After the unfavorable August 2007 determination was made by the C&P Director, the Veteran received cortisone injections in the shoulders bilaterally. At the time of the September 2007 treatment the examiner noted that the Veteran used a cane. An unsigned October 2007 private medical statement included an opinion that the Veteran had "significant lumbar degenerative disc disease" requiring a combination of injections and pain medication management with monthly medical evaluation. In July 2008, the Veteran reported that he had severe and constant back pain for which he used methadone, and needed a hearing pad for pain "until the pain pills kick in." He also stated his belief that his rating for back disability should be increased because of his neuropathy. He requested a powered scooter due to mobility issues resulting from back pain, but it was noted that the Veteran had several mobility issues, and this evaluation was postponed. The Veteran, as a lay person, is unable to distinguish which types of pain and impairment are due to his lumbar disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition such signs and symptoms must be attributed to the service-connected disability). Multiple medical opinions have determined, however, that his neurological complaints are no related to his service connected back condition. This renders his lay statements of little probative value to establish entitlement to an extraschedular evaluation for lumbar disability. Indeed, as set forth in prior Board and Court decisions, the Veteran's contention that his pain and lower extremity symptoms warranted a higher rating for service-connected lumbar disability was denied. Thus, to the extent that his employers relied on the Veteran's assertion that back pain and neurological symptomatology have caused work problems, those statements would also be tainted. These employers would be relying on an inaccurate factual premise. In March, July, August, and October 2008, the Veteran received lumbar steroidal injections from a non-VA provider. In November 2008, on VA examination, the examiner again noted that, although the Veteran had peripheral neuropathy, that disorder did not appear to be related to the lumbar spine disability. The examiner noted that the Veteran had lumbosacral pain and pain in the legs, but not pain radiating from the back into the legs. The Veteran had sharp pain after prolonged standing or walking. He reported use of a back brace around the house and use of a cane outside the house. He did not have incapacitating episodes. He had forward flexion to 60 degrees, with pain beginning at 30 degrees; forward flexion decreased to 50 degrees after 5 repetitions. This evidence is unfavorable to an extraschedular evaluation in excess of 40 percent, since the schedular evaluation allows for an increased rating for ankylosis, but the Veteran did not meet or approximate the criteria for ankylosis. The Veteran required a titanium rod in his right leg due to an injury sustained during flash flooding in August 2008. Clinical records reflecting immobility and pain due to right leg surgery do not warrant referral for consideration of an extraschedular evaluation for lumbar disability. VA examination conducted in July 2009 confirmed that the Veteran's lower extremity symptoms were unrelated to his service-connected back disability. VA medical opinion provided in July 2009 stated that the Veteran's peripheral neuropathy was not due to service-connected lumbar degenerative disease or lumbar radiculopathy. The 2009 medical opinion indicated that the Veteran had weakness of the extremities, and used a cane for ambulation, because of neuropathy. Pain due to neuropathy was constant, and worsened with activity. The Veteran was unable to keep his balance, and required use of a cane, due to the neuropathy. This evidence is unfavorable to consideration of an extraschedular evaluation, because it reflects that evidence of increased pain and decreased mobility was unrelated to the service-connected lumbar disability. In August 2009, the Veteran reported he had required local hospitalization. The hospitalization was unrelated to service-connected lumbar disability or to medications used for lumbar disability. Psychiatric examination in 2009 discloses that the Veteran reported somnolence during the daytime due to pain medications, and he was taking Ritalin to combat drowsiness. This evidence discloses that drowsiness, if not specifically encompassed within the schedular criteria for rating pain, was minimized, and not of such severity as to warrant referral for an extraschedular evaluation. VA outpatient treatment records dated through the remainder of 2009 and early 2010 reflect that the Veteran was treated for complaints of right ankle pain, and other medical disorders, but there was no specific treatment for lumbar pain. In February 2010, the Veteran requested referral for lumbar steroid injections. In March 2010, the Veteran sought private care for his lumbar disability. This evidence does not reflect the presence of any lumbar symptom or impairment not encompassed in the schedular criteria. In May 2011, the Veteran reported confusion and loss of energy. The providers suspected that these symptoms were due to his hepatitis C or other liver disorder. June 2010 and August 2010 evaluations disclosed that the Veteran's liver disorders had increased in severity, and that he was not a candidate for medical or surgical treatment. His treatment records for the remainder of 2010 disclose no treatment of the lumbar spine. In February 2011, the Veteran reported that his pain medication was no longer working well. Methadone was switched to morphine. In March 2011 and April 2011, the Veteran reported that the morphine did not help his pain at all. He was changed back to the same dosage of methadone he had been on, 15 mg three times a day. He requested 20 mg three times a day. However, as of June 2013, the Veteran's medication list reflects that the prescribed dosage of methadone remains at 15 mg three times daily. His medication regimen remained unchanged. In May 2011, MRI of the lumbar spine disclosed diffuse disc bulges from L2-S1. At L4-5, there was an increase in the bulge and some narrowing of the nerve outlets, and at L5-S1, there was an increase in narrowing where the nerve left the canal. The provider indicated that a pain clinic consultation would be ordered. There is no record that the Veteran followed up on pain clinic consultation. Rather, from September 2011 through November 2011, the Veteran was treated for a non-healing ulcer of the right great toe. This evidence is unfavorable to consideration of an extraschedular evaluation, because it establishes that the Veteran considered the right great toe ulcer of greater medical priority, and tends to establish that lumbar disability was not of such severity as to render application of the schedular standards impractical. In December 2011, the Veteran sought medical evaluation for left ankle pain. He reported that he had a motorcycle accident and his motorcycle fell on his left leg and ankle. A fracture of the left ankle was identified on radiologic examination. In January 2012, the Veteran admitted that his ankle pain had increased after he "was fixing a water line." The Veteran's involvement in a motorcycle accident and his attempt to "fix a water line" are not consistent with a determination that lumbar disability was of such severity as to render application of the schedular standards impractical. Rather, the nature of these activities suggests a level of physical activity that is well-contemplated by the current 40 percent rating. In April 2012, the Veteran sought emergency evaluation for a headache and was found to have uncontrolled hypertension (blood pressure recorded as 226/101). He obtained custom foot orthotics in August 2012. In June 2013, the Veteran reported decreased balance and strength in lower extremities. A June 2013 neurology consultation again disclosed that the Veteran had peripheral neuropathy unrelated to his service-connected lumbar disability. This evidence that the Veteran did not seek specific evaluation of lumbar disability for a period of approximately a year, followed by evidence that, when evaluation was sought, the symptoms the Veteran considered significant were attributed to a disorder other than the service-connected disability establishes that the service-connected lumbar disability was not of such severity as to render application of the schedular standards impractical. In its July 2013 Remand, the Board directed the RO to specifically consider whether referral to the Director, C&P Service, was again required, given the evidence and time elapsed since an extraschedular evaluation was denied by the Director, C&P Service, in 2007. The RO considered whether the Veteran's lumbar disability during the pendency of this appeal presented an exceptional or unusual disability picture, warranting a finding that the available schedular evaluations for lumbar disability are inadequate." Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009); see also Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (clarifying that although the Court in Thun identified three "steps," they are, in fact, necessary "elements" of an extraschedular rating). In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Thun, 22 Vet. App. at 115. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id. The RO concluded that the evidence did not support a finding that the Veteran's lumbar disability presented exceptional or unusual symptoms which rendered the application of the rating schedule impractical. An additional review by the Director was not required. The Board agrees. The Board has considered each rating criterion applicable to the Veteran's lumbar disability in this case, including under DCs 5292, 5293, and 5295, under the rating criteria in effect when the Veteran submitted the claim. The Board has considered each rating criterion applicable under DCs 5237 to 5243 as currently in effect, during the entire period of the pendency of this appeal, including from August 30, 2007, to the present. The Veteran's primary symptoms of lumbar disability throughout the pendency of this appeal, since 2001, have included pain, limitation of motion, and degenerative changes objectively demonstrated on radiologic examinations. The Veteran's pain, limitation of motion, and degenerative changes of the spine demonstrated from 2001 to the present, under either the "old" or the "new" regulations are encompassed within the rating criteria. The Veteran has not manifested such profound limitation of motion as to approach ankylosis of the lumbar spine, although the rating schedule allows a higher rating than the 40 percent in effect if the Veteran should meet that criterion. Further, while the Veteran has narrowing or irregularity of joint space, this finding and related symptoms are encompassed within the criteria for a 40 percent evaluation under the "old" regulations (DC 5295) and under the new regulations (DC 5237, 5243). The Veteran has not demonstrated such significant pain that essentially limits all activity, which might warrant a finding that application the rating schedule would be impractical. The evidence does demonstrate that the Veteran is, as a lay person, unable to distinguish between pain and impairment which is due to service-connected lumbar disability and pain and impairment due to neuropathy which is unrelated to lumbar disability. This fact decreases the probative value of statements by the Veteran and other lay individuals about the extent and severity of the lumbar disability. Moreover, as discussed, there is evidence suggesting that the current 40 percent rating encompasses adequately the Veteran's limitation of motion. The Board directs attention to the Veteran's well-documented motorcycle accident in 2011, and his exacerbation of pain resulting from a left ankle fracture while we was "fixing a water line." Both actions establish that the Veteran is able to engage in significant activity, including activity of a work-like nature ("fixing" a water line). The evidence further establishes that the neuropathy that results in severe pain, weakness of the lower extremities, loss of balance, and mobility "issues" discussed in 2007 and 2008, is medically attributed to the Veteran's diabetes. The Veteran's symptoms of neuropathy, and the impairment of industrial capability due to such symptoms, whether at the beginning of this appeal in 2001, or as manifested currently in 2013, cannot be attributed to the Veteran's service-connected lumbar disability. The Board again notes that, although the "old" criteria for rating lumbar disability allow an increased rating for neurologic symptoms, that schedular criterion is not applicable in this case, since the medical evidence establishes that neurologic symptoms in the lower extremities are not attributable to service-connected lumbar disability. Thus, these symptoms, although present, do not serve as a factual basis for an extraschedular rating for lumbar disability. The Veteran has, in fact, been granted separate service connection for disability due to diabetes and for disability due to neuropathy. The only impairment the Veteran manifests due to his service-connected back disability that is not specifically encompassed in the applicable rating criteria is the side effects of his pain medication. The Veteran has, at times, complained of daytime somnolence (drowsiness), and that Ritalin was prescribed to manage his daytime somnolence. The medical evidence establishes that the Veteran sought increased pain medication from August 2007 to the present, despite somnolence. The medical evidence also demonstrates that, throughout the pendency of this appeal, the Veteran has complained of being unable to sleep at night (insomnia) more frequently than he has complained of sleeping too much during the day. The effect of side effects of pain medications, such as potential drowsiness during employment, that is, the statements from the employers who stated they could not hire an individual taking methadone in a job which required driving, was considered by the C&P Director at the time of the August 2007 review, and those facts remain unchanged. The Director determined that inability to be hired for employment such as a driver was not equivalent to unemployability due to back disability. The Board concurs. In any event, the Veteran does drive, as demonstrated by the medical evidence that he broke his left ankle in a motorcycle accident. The evidence demonstrates that the side effects of the Veteran's medications, although not specifically encompassed within the rating schedule, do not result in such severe factors of disability that the schedular standards are not applicable. The medical evidence also demonstrates that, although the Veteran has manifested confusion and loss of energy at times since August 2007, those episodes have been attributed to medical disorders other than back pain or medication side effects. See VA outpatient treatment records dated in May 2010, June 2010, and August 2010. The treatment records dated from May 2010 to the present disclose that the Veteran has not complained about side effects of his pain medications, and has sought evaluation or treatment for lumbar complaints with decreasing frequency as other disorders become more severe. In January 2012, as noted above, the Veteran reported increased back pain in addition to left ankle pain. He admitted that his pain had increased after he was "fixing" a water line. The Veteran's activities demonstrated in the record are inconsistent with a finding that the side effects of medications used to control back pain are of such severity as to present a disability picture that is not encompassed within the schedular criteria, even though those criteria do not specifically address impairment due to medication side effects. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). In this case, if the Veteran's functional impairment due to medication side effects resulted in incapacitation, or were equivalent to neurologic impairment, he would, in fact, be entitled to a higher schedular rating, either under the "old" regulations or the "new" regulations, since a 40 percent rating is not the maximum schedular rating for intervertebral disc disease under wither applicable version For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss, such that the only impairment the Veteran manifests due to his service-connected lumbar disability which is possibly not encompassed in the rating schedule is the impairment due to side effects of pain medication, with the primary symptom being drowsiness or daytime somnolence. As noted, the Veteran's daytime drowsiness is at least partially controlled by use of Ritalin. The facts demonstrate that the Veteran preferred additional pain relief more important that decreasing the drowsiness due to pain medication. The facts also demonstrate that the Veteran's most frequent complaint about sleep disturbances was inability to sleep at night rather than daytime drowsiness. Therefore, the Board finds, as a matter of fact, that the Veteran's impairment due to somnolence caused by pain medication was not of such severity from August 2007 to the present as to render impractical the use of the rating criteria, and did not presents an exceptional or unusual disability picture during the relevant time period. Since there is no exceptional or unusual disability picture, referral to the appropriate officials for consideration of extraschedular ratings during the period at issue is not warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). With respect to the second Thun element, the evidence does not suggest that the criteria of "related factors" are met. The Veteran does not contend, and the evidence of record does not suggest, that his lumbar disability required hospitalization. Rather, the evidence establishes that the Veteran's hospitalizations during the period since August 2007 have been for treatment of disorders other than the service-connected lumbar disability. The Veteran has not been employed for many years. However, the evidence as a whole demonstrates that the Veteran performs a variety of work-like activities. The Veteran, who lives alone, performs all activities of daily living without assistance, rides a motorcycle, and performs odd jobs such as fixing a water line. This evidence demonstrates that the Veteran's service-connected lumbar disability does not preclude all employment. The Board acknowledges that the Veteran has provided statements from prospective employers who indicated they would be unable to hire the Veteran because of his use of methadone. The Board finds that, as result of potential side effects of pain medication, the Veteran is unable to obtain employment which involves operating heavy equipment, working at heights, or in occupations with specific safety requirements. While the Veteran is unable to perform certain functions (driving), the evidence does not establish that the Veteran's service-connected lumbar disability, in and of itself, results in "marked" interference with employment such as to warrant a finding that his lumbar disability presents an "exceptional" disability picture which renders application of the schedular standards impractical. 38 C.F.R. § 3.321(b)(1). The Board finds that the Veteran does not meet either the first criterion of the Thun analysis or the second prong of the Thun analysis as to an extraschedular rating in excess of 40 percent for lumbar disability. Since both criteria must be met, an additional referral for assignment of an extraschedular evaluation for lumbar is not required, nor is an extraschedular evaluation in excess of 40 percent for lumbar disability warranted. 38 C.F.R. § 3.321(b)(1). The preponderance of the evidence is against a finding that an extraschedular evaluation in excess of 40 percent is warranted for lumbar disability, and that claim must be denied. ORDER The appeal for an extraschedular evaluation in excess of 40 percent for lumbar disability is denied. REMAND The agency of original jurisdiction has issued a rating decision which implements the grant of TDIU for the Veteran from May 4, 2011, but has not readjudicated the Remanded of the claim for TDIU prior to May 4, 2011. The actions directed and the readjudication of that portion of the TDIU claim remain on appeal. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an opportunity to identify or submit records of any non-VA treatment that is not yet of record for the period from May 31, 2001 to May 4, 2011. In particular, the Veteran is afforded the opportunity to identify records of treatment by providers paid by Medicaid, especially those providers who treated the Veteran for service-connected disabilities between May 31, 2001 to May 4, 2011, such as injections and other treatments for back pain, records of providers who conducted non-VA "medication checks," and complete records from the Pain Management Center of Southern Indiana, records of inpatient and outpatient non-VA treatment of a left ankle fracture in about 2008, emergency department records during the pendency of this claim, and the like. 2. Update the August 2013 Social and Industrial Survey to focus more clearly on the Veteran's activities of daily living from May 2001 to May 4, 2011, including the type of dwelling he lived in each of those years, including whether the dwelling was a camper or trailer home, how he performed activities such as laundry and bathing, if the dwelling was a camper or trailer home which did not have a washer and dryer, whether he owned or rented the dwelling, and whether he made repairs or a landlord made repairs. 3. The RO should provide a summary of the disabilities for which service connection was in effect, and the assigned disability rating, during the relevant period (May 2001 to May 4, 2011). A reviewer should, based on review of the record and the updated Social and Industrial Survey, describe the industrial activities that the Veteran remained able to perform, considering service-connected disabilities, beginning in May 2001, through May 4, 2011. The examiner should discuss any additional limitations to the range of industrial activities the Veteran was able to perform as his service-connected disabilities progressed in severity, and provide an opinion as to the onset of such changes, if possible. If the reviewer determines that in-person history and/or examination is required to address the question, then such examination should be conducted. A rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim for TDIU prior to May 4, 2011. The AOJ/AMC should remain mindful that the Veteran's entitlement to a TDIU from May 31, 2001, to April 12, 2006, needs to be considered under the tenets of 38 C.F.R. § 4.16(b) and that application of 38 C.F.R. § 4.16(a) is warranted for the period from April 12, 2006, to May 4, 2011. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed under 38 C.F.R. § 4.16(b). 5. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs