Citation Nr: 1340914 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 00-18 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a higher disability rating for low back syndrome, strain of the dorsal paravertebral muscles, thoracic facet strain, and dorsolumbar paravertebral myositis, initially rated as 20 percent disabling from November 10, 1999 to June 3, 2008, and as 40 percent disabling since then. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from September 3, 1981 to November 16, 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, granting service connection for a low back disability rated initially at 20 percent from November 10, 1999 to June 3, 2008, then at 40 percent onwards. The Veteran appealed therefrom as to the assigned initial evaluation. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Board remanded this case for further development in December 2012, at that time also taking jurisdiction of an inextricably intertwined claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); VAOPGCPREC 6-96 (Aug. 16, 1996). Presently, the issue of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. From November 10, 1999 to June 3, 2008, the Veteran did not manifest severe limitation of motion of the lumbar spine; or since September 26, 2003, under the revised rating criteria, forward flexion of the thoracolumbar spine to 30 degrees or less. 2. Since June 4, 2008, the Veteran has not manifested unfavorable ankylosis of the lumbar spine. 3. Throughout, there has not been moderate limitation of motion of the dorsal spine, or associated neurological impairment, including under the criteria for Intervertebral Disc Syndrome (IVDS) based on severity and/or incapacitating episodes. CONCLUSION OF LAW The criteria are not met to establish an increased rating for low back syndrome, strain of the dorsal paravertebral muscles, thoracic facet strain, and dorsolumbar paravertebral myositis, initially evaluated at 20 percent disabling from November 10, 1999 to June 3, 2008, and at 40 percent since then. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code (DC) 5292 (prior to September 26, 2003), and DC 5237 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), sets forth VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. See also, 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. However, VA does not have to provide VCAA notice in this circumstance concerning the "downstream" disability rating of the claim already granted for service connection for a low back disability. See Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO and AMC together have provided the Veteran the required statement of the case (SOC), also supplemental SOCs (SSOCs), citing the applicable statutes and regulations governing the assignment of disability ratings and containing discussion of the reasons or bases for not assigning a higher initial rating. Thus, the Veteran has received all required notice concerning his initial-rating claim. Moreover, all measures have been undertaken to assist the Veteran with development of this matter, including through affording VA examinations, as well as obtaining relevant treatment records and disability benefit records from the Social Security Administration (SSA). The Veteran himself has provided additional evidence. He has not requested a hearing in this case. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. Governing Law and Regulations, Factual Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. Effective September 26, 2003, VA revised the criteria for evaluating all musculoskeletal disabilities of the spine to include IVDS. 68 Fed. Reg. 51,454 (Aug. 27, 2003). The Veteran's back disorder must be evaluated under both the former and revised criteria, though the revised criteria may not be applied at any point prior to the effective date of the change. See 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2013); VAOPGCPREC 3-2000 (Apr. 10, 2000); VAOPGCPREC 7-2003 (Nov. 19, 2003). Prior to the September 26, 2003 revision in rating criteria, 38 C.F.R. § 4.71a, DC 5292 pertained to limitation of motion of the lumbar spine. Under DC 5292, a 10 percent rating was warranted for slight limitation of motion; a 20 percent rating for moderate limitation of motion; and a maximum 40 percent rating for a severe limitation of motion. DC 5291 provided for evaluation of limitation of motion of the dorsal spine. A noncompensable rating was warranted for slight limitation of motion; a 10 percent rating for moderate limitation of motion; and a 10 percent rating for a severe limitation of motion. The terms "moderate" and "severe" among other components of the rating criteria are not expressly defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Meanwhile, under the former DC 5289 for ankylosis of the lumbar spine, a 40 percent evaluation was warranted for favorable ankylosis, and a 50 percent evaluation for unfavorable ankylosis. Also, Diagnostic Code 5295, pertained to lumbosacral strain, and provided for a 10 percent rating for lumbosacral strain with characteristic pain on motion. A 20 percent rating was assigned for lumbosacral strain with muscle spasm on extreme forward bending, with unilateral loss of lateral spine motion in a standing position. A 40 percent rating required severe lumbosacral strain that included listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint spaces, or with some of these characteristics with abnormal mobility on forced motion. Since the September 26, 2003 regulatory revision, disorders of the lumbosacral spine are to be evaluated in accordance with VA's General Rating Formula for Diseases and Injuries of the Spine. This rating formula provides for the assignment of a 10 percent rating when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent rating is for assignment upon a showing of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Under notes to the rating formula: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion 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 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 (0 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. The Board also notes the applicable criteria for evaluation pursuant to IVDS. Under the provisions of 38 C.F.R. § 4.71a, DC 5293, in effect prior to September 23, 2002, pronounced IVDS warranted a maximum rating of 60 percent. 38 C.F.R. § 4.71a, DC 5293 (2002). Under the criteria in effect since September 23, 2002, IVDS is evaluated by one of two alternative methods, applying whichever results in the higher evaluation. First, the disability could be rated on the basis of the total duration of incapacitating episodes over the previous 12 months with again a maximum rating of 60 percent. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5293, Note 1 (2002). Second, IVDS from September 23, 2002, could be rated by separately evaluating the chronic orthopedic manifestations under the most appropriate orthopedic diagnostic code (DCs 5292 or 5295) and the neurological manifestations under the most appropriate neurologic diagnostic code(s), and then combining the separate evaluations under 38 C.F.R. § 4.25. "Chronic orthopedic and neurologic manifestations" meant orthopedic and neurologic signs and symptoms resulting from IVDS that were present constantly, or nearly so. See 38 C.F.R. § 4.71a, DC 5293 (2002). The September 26, 2003 version of the rating criteria includes the same language from the previously revised regulation for rating IVDS under the General Rating Formula for Diseases and Injuries of the Spine or otherwise based upon the frequency and severity of its incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DC 5243 (2012). Evidence since the November 10, 1999 effective date of service connection for a low back disability includes a May 2001 MRI study report indicating an impression of "thoracic levoscoliosis; mild degenerative changes along the dorsal spine; tiny right sided disk protrusion at T9-T10." The Veteran underwent VA Compensation and Pension examination in October 2001, during which he reported having mild thoracic back pain with radiation to the head and palpitations. He referred occasional numbness, cramps and pain on the posterior legs. There was no fecal or urinary incontinence. He received intermittent injections of muscle relaxants and pain relievers. He indicated that although he had chronic low back pain, he went to work and did not experience acute severe bouts of pain. He thought he needed a cane to walk. Range of motion of the lumbar spine consisted of forward flexion to 55 degrees, backward extension to 30 degrees, lateral flexion to 35 degrees, and rotations 30 degrees. There was no objective evidence of painful motion on all movements of the thoracic and lumbar spine. There was no thoracic or lumbar paravertebral muscle spasm. There was no tenderness to palpation on the thoracolumbar area. There were no postural abnormalities of the back or fixed deformities. As to neurological condition, there was no muscle atrophy of the lower extremities. There was diminished pinprick and smooth sensation from the umbilicus down T9, T10 and all dermatomes of the legs. There was positive straight leg raising and Lasegue sign bilaterally. The diagnosis was thoracic levoscoliosis, mild degenerative joint disease and right T9, T10 disc protrusion (herniated nucleus pulposus); and mild bilateral low lumbosacral radiculopathy by EMG study. On VA re-examination of April 2004, the Veteran described thoracolumbar pain with radiation to the chest and posterior legs up to the toes. He described acute flare-ups of low back pain which functionally impaired him on a daily basis 35 percent of the year. Range of motion of the thoracolumbar spine was measured at forward flexion to 45 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation 40 degrees. There was painful motion on the last degree of range of motion measured. The Veteran was not additionally limited by fatigue, weakness and lack of endurance following repetitive use of the thoracolumbar spine. He did have acute flare-ups of thoracolumbar pain on a daily basis, with the major functional impact being difficulty lifting objects and getting out of bed in the mornings. There was palpable thoracolumbar muscle spasm, with localized tenderness, and a normal gait cycle. There was no scoliosis, reversed lordosis or abnormal kyphosis. There was no weakness of the legs with a muscle strength guarded 5/5. There were no postural abnormalities of the back or fixed deformities. Sensory exam revealed diminished pinprick and smooth sensation diffusely in the hands and legs not following any specific dermatomal pattern. There was no muscle atrophy of the lower extremities. Regarding any incapacitating episodes of IVDS, the Veteran was given two or three medical certificates for two or three weeks of bedrest as part of treatment by his private physicians, but the Veteran stated that he did not accept many of them because he had to work to pay his bills. The diagnosis was dorsolumbar paravertebral myositis with radiculopathy. VA examination of June 2008 revealed that the Veteran reported no urinary or fecal incontinence, though there were reported parathesias. Pain was present in the mid-back and low back areas, and was described as severe and constant. According to the Veteran, he had been told verbally by a treating physician to take from two days to two weeks of bed rest due to acute IVDS. Physical examination revealed thoracic spine spasm and tenderness, though no atrophy, guarding or weakness. There was not muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Inspection of the spine was normal, and there were no abnormal spinal curvatures. A detailed sensory exam did not show a dermatomal pattern indicative of sensory loss for the lower extremities. Range of motion consisted of forward flexion to 35 degrees, limited by pain on repetitive use to 20 degrees; extension to 5 degrees, limited by pain to 2.5 degrees; right and left lateral flexion to 10 degrees, limited by pain to 5 degrees; right and left lateral rotation 10 degrees, limited by pain to 5 degrees. Lasegue's sign was positive on both sides. The diagnosis was thoracic facet strain; lumbar levoscoliosis, low thoracic degenerative joint disease and tiny disc protrusion at T9-T10 by MRI; sciatica; bilateral low lumbar radiculopathy; strain dorsal paravertebral muscles; and strain dorsal paravertebral muscles. Then upon VA examination in April 2013, the diagnosis was initially indicated of lumbar strain. The Veteran alleged a worsening of his back pain. The impact of flare-ups was limitation upon ambulation for more than 20 minutes, and limitation upon sitting for more than 10 to 15 minutes, as well as limitation on driving for more than 10 minutes. Range of motion on the thoracolumbar spine consisted of forward flexion to 20 degrees, with painful motion beginning at 5 degrees; extension to 10 degrees, with pain at 5 degrees; right lateral flexion to 15 degrees, pain at 5 degrees; left lateral flexion to 10 degrees, pain at 5 degrees; right lateral rotation 10 degrees, pain at 5 degrees; and left lateral rotation 5 degrees, no further limitation due to pain. There was excruciating pain in the lumbosacral area. With repetition motion testing, there was forward flexion to 15 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. There was localized tenderness or pain to palpation of the thoracolumbar spine, and also guarding or muscle spasm of the thoracolumbar spine, though not resulting in abnormal gait or spinal contour. There was no muscle atrophy of the bilateral lower extremities, and muscle strength was consistently 4/5. Sensory exam was generally normal, except for decreased sensitivity in the feet/toes. Straight leg raising test results were negative. There were no signs of radiculopathy. The Veteran did not have IVDS of the thoracolumbar spine. There was leg numbness. There was no vertebral fracture. In view of the preceding, the Board must continue assignment of the existing compensation scheme for the Veteran's service-connected low back disability, to consist of an initial 20 percent evaluation since November 10, 1999, increasing to 40 percent effective June 3, 2008. In so finding, the Board is mindful of the requests made by the Veteran's attorney for separate compensable ratings based on adjoining lumbar and dorsal spine limitations, as well as for increased compensation for "severe" limitation of the lumbar spine where demonstrated, and due application of the DeLuca provisions for recognition of functional loss in orthopedic disability evaluation. The Board has also given due consideration to any distinct neurological manifestations. On the whole, however, no further award of compensation is tenable given what the evidence reflects. The Board finds that the current assigned 20 percent evaluation, and then 40 percent evaluation effective June 3, 2008 premised upon limitation of motion should stand. For the first few years of pendency of this claim, only the original rating criteria applied, under which the Veteran would have had to have manifested "severe" impairment to warrant the next higher 40 percent evaluation. See 38 C.F.R. § 4.71a, DC 5290 (prior to September 26, 2003). This rating standard applies prospectively throughout the claim. After September 26, 2003, the Veteran had a second avenue of recovery for a 40 percent evaluation under the revised rating criteria, for forward flexion limited to 30 degrees of less. See 38 C.F.R. § 4.71a, DC 5237 (2013). However, on VA examination in 2001, there was forward flexion to 55 degrees -- more than half the full range of 90 degrees -- accompanied by near normal findings in other planes of motion. There was no additional limitation of motion occasioned by pain or other type of functional loss. On examination again in 2004, forward flexion was 45 degrees -- half of normal. There was obvious worsening here, but with roughly half of lumbar spine mobility retained, and no further diminution due to pain on use, as well as back extension remaining at 15 degrees and significant retained mobility in other planes, the Board simply does not have a compelling indication of "severe" limitation of motion of the lumbar spine. The Board fully recognizes that the Veteran experienced intermittent acute flare-ups of back pain and other functional limitations. This notwithstanding, those limitations that inherently affected range of motion when measured on the examination (following repetitive motion testing) did not place this residual capacity in the category of severe, as opposed to more moderate limitation. For that matter, the Veteran also has not objectively manifested symptomatology consistent with the highest evaluation of 40 percent for lumbosacral strain under the previous DC 5295. There has not been indication in this regard of severe lumbosacral strain, with any aggravating factors included such as listing of the whole spine to the opposite side, positive Goldthwaite's sign, or marked limitation of forward bending in the standing position. Therefore, based on the record before it, prior to June 4, 2008, the Veteran's lumbar spine condition did not warrant in excess of a 20 percent rating. Nor can any other result be substantiated since June 4, 2008, given that to warrant an evaluation in excess of the existing 40 percent, the Veteran would have had to objectively demonstrate unfavorable joint ankylosis, under either the former and revised rating criteria. The Veteran has always retained at least some level of joint mobility in the thoracolumbar spine, and has never had ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) (both indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). It could be interpreted that the Veteran on the most recent VA examination in 2013 nearly had thoracolumbar spine ankylosis, given that he experienced onset of pain at 5 degrees when completing forward flexion, within a few measures of 0 degrees (total absence of motion) -- however, there still was nothing ever approximating unfavorable ankylosis, i.e., fixation outside of a neutral position with attendant functional limitations such as in vision, breathing, or the gastrointestinal system. As the Veteran is already in receipt of the highest assignable evaluation throughout based on limitation of motion alone, no rating beyond 40 percent for lumbar spine disability is assignable after June 4, 2008. Regarding whether there is compensable impairment of the dorsal spine, there indeed has been diagnosed underlying dorsal spine disability, and while the former rating criteria recognizes the possibility of compensation for the same, such is not objectively warranted in this case. The former DC 5292 required at least "moderate" dorsal spine limitation of motion in order to assign a minimum 10 percent rating. "Slight" limitation of motion still equated to a noncompensable (0 percent) rating. Here, there is nothing to bring within the categorization of moderate the Veteran's dorsal spine limitation, as there are no distinct range of motion findings, or specific and distinct symptoms and manifestations of the dorsal spine observed by any of the VA examiners. It follows that while mild degenerative changes of the dorsal spine were noted, and dorsal spine strain has been documented, there is unfortunately no factual basis at hand to begin to assess the severity of this manifestation, or otherwise suggest that it materially impacted limitation of motion, much less had a direct impact upon range of motion. The Board consequently has no grounds upon which to recognize any separate award of compensation for disability involving the dorsal spine, above and beyond what has been awarded for lumbar spine limitation of motion. As to neurological manifestations, whereas the Veteran intermittently has been considered to have had some form of radiculopathy to the lower extremities, this has been fleeting in nature, at point identified as mild radiculopathy on one examination, and then found not to exist the next evaluation. The VA examination in 2013 effectively ruled out lumbosacral radiculopathy. The Board assigns considerable weight to this finding, inasmuch as radiculopathy from neurological impairment inherently is not the type of condition that would likely fully resolve over time, and instead would be reflected in the most recent VA examination of record. Nor is there a basis to separately assign compensation due to IVDS. Here again, the most recent VA examination effectively ruled out IVDS. Even assuming that the Veteran manifested such disorder, however, at no point during the evaluation history has he experienced neurological and/or orthopedic symptoms of IVDS that would have entitled him to in excess of the already assigned disability ratings throughout. Accordingly, it cannot be ascertained in view of the VA rating schedule that there is an objective basis for assignment of a separate rating for any component of the Veteran's service-connected low back disability, beyond that already corresponding to lumbar spine limitation of motion. Meanwhile, aside from the rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations also has been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extra-schedular evaluation. In Thun v. Peake, 22 Vet. App. 211 (2008), the U.S. Court of Appeals for Veterans Claims (Court) articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. In this case, there initially is no basis to find that the Veteran's low back disability presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. Essentially, the rating criteria premised upon limitation of motion with associated pain and/or discomfort fairly accounts for nearly all of the Veteran's symptoms as presented, including from his descriptions upon VA examination and on other occasions. To the extent the Veteran has any distinctly ratable neurological impairment, the Board has sought to account for this as well. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. The Board therefore is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for consideration of an extraschedular evaluation. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying the claim for a higher rating for low back disability. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER A higher disability rating for low back syndrome, strain of the dorsal paravertebral muscles, thoracic facet strain, and dorsolumbar paravertebral myositis, initially rated as 20 percent disabling from November 10, 1999 to June 3, 2008, and as 40 percent disabling since then, is denied. REMAND The Veteran does not meet the preliminary schedular criteria for a TDIU, however, he may still ultimately demonstrate meeting the qualifications for that benefit on an extraschedular basis. See 38 C.F.R. § 4.16(b) (2013). The April 2013 VA examiner offered an opinion that on its face substantiates occupational incapacity as a consequence of service-connected disability. Therefore, this case must be remanded for referral to the VA, Director Compensation and Pension Service for consideration of a TDIU on extraschedular grounds. Accordingly, this claim is REMANDED for the following action: 1. Refer the case to the VA Director, Compensation and Pension Service for consideration of the propriety of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). 2. Thereafter, the RO/AMC should adjudicate the claim for a TDIU on an extraschedular basis. If the benefit sought on appeal is not granted (to include if a TDIU is partially granted, but then denied for any relevant time period), the Veteran and his attorney should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012 & Supp. 2013). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs