Citation Nr: 1341304 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-29 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for left foot numbness and tingling, to include left lower radiculopathy secondary to residuals of discectomy (hereinafter left lower extremity disability), to include ratings in excess of 10 percent prior to June 9, 2008, in excess of 20 percent from June 9, 2008, and in excess of 40 percent from September 8, 2011. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Christopher Loiacono, Accredited Agent ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a disability evaluation of 10 percent for the Veteran's service-connected left lower radiculopathy, S1. The Veteran appealed that decision to Board, and the case was referred to the Board for appellate review. The record reveals that the Veteran requested a Travel Board hearing in conjunction with his appeal. The Veteran was scheduled for a hearing on June 3, 2013, but he did not report. The Veteran, through his agent, submitted a letter in May 2013 waiving his right to testify at the scheduled hearing. The Veteran has not requested another hearing and, therefore, the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). Additionally, evidence has been associated with the Veteran's claims folder accompanied by a waiver of local consideration. This waiver is contained in the Veteran's VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2013). In February 2006, the RO initially granted service connection for left foot numbness and tingling secondary to residuals of a discectomy effective August 22, 2005, and assigned a 10 percent disability evaluation. The Veteran submitted a claim for an increased rating for his spine disorder, which was received by VA on June 9, 2008. The RO interpreted this submittal to also constitute a claim for an increased rating for the Veteran's left lower extremity disability. In a June 2010 rating decision, the RO increased the evaluation of the left lower extremity disability to 20 percent, effective June 9, 2008. However, as the increase did not constitute a full grant of the benefits sought, the Veteran's claim for an increased disability rating remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38- 39 (1993). Under 38 C.F.R. 3.400 (o)(2) an increased rating can be granted up to one year prior to the date of the claim. The claim for an increased rating for the Veteran's left lower extremity disability was received by the VA on June 9, 2008, so the VA is to consider evidence back to June 9, 2007. From June 9, 2007 to June 8, 2008, the Veteran was assigned a 10 percent rating for his left lower extremity disability, so the Board will consider whether a higher evaluation is warranted for this period. In a January 2012 rating decision, the RO increased the disability rating for the service-connected left lower extremity disability from 20 percent to 40 percent disabling, effective September 8, 2011. However, as the increase did not constitute a full grant of the benefits sought, the Veteran's claim for an increased disability rating remains in appellate status for both the period before and after September 8, 2011. See AB v. Brown, 6 Vet. App. 35, 38- 39 (1993). The issue of entitlement to TDIU 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. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's service-connected left lower extremity disability has not been manifested by moderate paralysis prior to June 9, 2008. 3. The Veteran's service-connected left lower extremity disability has been manifested by numbness and pain of the foot, hypoactive ankle jerk reflex, burning pain and tingling of the lateral calf, diminished pain and light touch sensation, and some diminished deep tendon reflexes, but has not been manifested by moderately severe paralysis from June 9, 2008. 4. The Veteran's service-connected left lower extremity disability has been manifested by numbness and pain of the foot, diminished light touch sensation for the lower leg, ankle, foot, and toes, and severe paresthesia and/or dysesthesia but has not been manifested by severe paralysis with marked muscular atrophy from September 8, 2011. CONCLUSIONS OF LAW 1. Prior to June 9, 2008, the criteria for a rating in excess of 10 percent for a service-connected left lower extremity disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Code 8520 (2013). 2. On or after June 9, 2008, the criteria for a rating in excess of 20 percent for a service-connected left lower extremity disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Code 8520 (2013). 3. On or after September 8, 2011, the criteria for a rating in excess of 40 percent for a service-connected left lower extremity disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant regarding what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must inform the Veteran about (1) the information and evidence not of record that is necessary to substantiate the claim; (2) the information and evidence that VA will seek to provide; and (3) the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a current disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the Veteran's increased rating claim, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision 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). A predecisional letter sent August 2008 satisfied the requirements for notice following a claim for an increased rating. The letter stated that the Veteran must provide, or ask VA to obtain, evidence of worsening, explained how a disability rating would be determined by applying relevant Diagnostic Codes, and provided examples of the types of medical and lay evidence the Veteran must submit. See Dingess/Hartman, 19 Vet. App. 473; Vazquez-Flores, 580 F.3d 1270. The duty to notify has been satisfied. The Board also finds that VA's duty to assist has been satisfied. The Veteran's VA medical records are in the file, as well as statements from the Veteran and his representative and statements from the Veteran's friends and employer. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. With respect to the increased rating claim, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327 (a) (2013). The Veteran was afforded VA examinations in November 2008, October 2009, December 2011, and July 2013 for his spine disability, which included assessments of the Veteran's left lower extremity disability. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nichols, 21 Vet. App. 303, 312 (2007). The Board finds the VA examination reports to be adequate. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected disability under the applicable rating criteria. Thus, there is adequate medical evidence of record to make a determination in this case. The most recent VA examination was conducted less than six months ago and is considered by the Board to be sufficiently contemporaneous. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4) (2013). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (2007). Increased Rating As provided above, the Veteran asserts that his left lower extremity disability warrants a rating in excess of 10 percent prior to June 9, 2008, in excess of 20 percent from June 9, 2008, and in excess of 40 percent from September 8, 2011. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2013). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Left lower extremity disability The Veteran's service-connected left lower extremity disability is currently evaluated under Diagnostic Code 8520, which pertains to paralysis of the sciatic nerve. A 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). While a private treatment record from June 2011 and a VA examination from December 2011 indicate involvement of the femoral nerve, the Board will continue to assess the left lower extremity disability under Diagnostic Code 8520, as it would provide the higher evaluation and because the disability picture more nearly approximates the criteria for that rating. See 38 C.F.R. § 4.7 (2013). The general rating criteria for diseases of the peripheral nerves provide that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. However, the Board also notes that the words mild, moderate and severe are not defined in the 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. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to ratings for his left lower extremity disability in excess of 10 percent prior to June 9, 2008, in excess of 20 percent from June 9, 2008 or in excess of 40 percent from September 8, 2011. His left lower extremity disability was not manifested by moderate paralysis prior to June 9, 2008, moderately severe paralysis of the sciatic nerve on or after June 9, 2008, or by severe paralysis of the sciatic nerve with marked muscular atrophy on or after September 8, 2011. June 9, 2007 to June 8, 2008 Private medical records from this period include very little discussion of the Veteran's left lower extremity disability, and instead focus on the Veteran's low back disability. In June 2007, one record provides a diagnosis of low back pain with left hip radiation. A September 2007 private medical record notes that the Veteran denied any radicular pain, and upon neurological examination, motor function and sensation were intact, with no allodynia or hyperesthesia. The evidence does not demonstrate a disability picture that warrants the assignment of a disability rating in excess of 10 percent for this period, as the evidence does not show moderate paralysis of the sciatic nerve. June 9, 2008 to September 7, 2011 The Veteran was afforded a VA examination for his spine disability in November 2008. The Veteran gave a history of left leg numbness from the foot to mid-calf since his spinal surgeries and left thigh pain since his last surgery. Motor examination showed active movement against full resistance for left hip flexion, hip extension, knee extension, ankle dorsiflexion and great toe extension. Muscle tone was noted as normal and there was no muscle atrophy. Sensory examination of the left lower extremity showed normal sensation for vibration, pain (pinprick) and position sense, with sensation absent for light touch. The examiner noted that S1 distribution was decreased. Reflex examination of the left lower extremity showed normal knee jerk and plantar flexion reactions, with a hypoactive ankle jerk (S1) response. The examiner provided a diagnosis of left S1 radiculopathy. The Veteran underwent another VA examination for his spine disability in October 2009. The Veteran reported constant burning pain of the left lateral calf made worse when clothing touches the skin. He also described numbness of his left foot radiating up to his calf. Motor examination showed active movement against full resistance for left hip extension, knee flexion, knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension. Muscle tone was noted as normal and there was no muscle atrophy. Sensory examination of the left lower extremity showed normal sensation for vibration and position sense and impaired sensation for pain (pinprick) and light touch. The examiner noted that S1 distribution was decreased. Reflex examination of the left lower extremity showed a normal knee jerk response and a hypoactive ankle jerk (S1) response. The examiner provided a diagnosis of left S1 sensory radiculopathy. VA and private treatment records from July 2008 to March 2009 portray a disability picture substantially similar to that demonstrated by the VA examinations. The Veteran continuously reported numbness of the left leg and foot and examinations showed diminished sensation and normal strength in the left lower extremity except for EHL and dorsiflexion on the left, which was noted as 4+/5 or 4-5 and described as mild. A July 2008 private treatment record noted that deep tendon reflexes were diminished throughout, except for the left Achilles reflex, which was absent. The ankle reflex was again noted as diffusely absent in October 2008. The Veteran also reported some pain, numbness, and tingling of the left thigh in January and March 2009. The claims file also contains a prescription written for moderate paralysis of the last three toes of the left foot with moderate to severe neuropathy, in January 2009. Treatment records from the Jacksonville, Florida VA Outpatient Clinic (VAOPC) from July 2009 and July 2011 note marked tenderness in the legs and intermittent acute thigh pain and constant left foot pain and numbness. Further examinations were conducted by private treatment providers in May and June 2011, which also demonstrated a similar disability picture. The May 2011 examination showed left gastrocnemius-soleus strength of 3/5 with normal reflexes present for the left knee and ankle. Finally, the Veteran was provided a needle EMG nerve conduction study in June 2011 by a private physician. The needle EMG resulted in 1-2+ fibrillations identified in the bilateral posterior tibials, biceps femoris, and gastrocnemius-soleus complex with a neurogenic recruitment pattern identified in these muscle groups as well as a neurogenic recruitment pattern identified in the left ilipsoas, bilateral vastus laterals, and bilateral rectus femoris with increased amplitude polyphasic motor unit potentials with spontaneous activity. There were 1+ fibrillations identified in the lumbosacral paraspinal muscles. The physician noted impressions that the evidence was consistent with bilateral mild-to-moderate S1 lumbosacral radiculopathies with both acute and chronic features, mild-to moderate, bilateral, chronic L4/L5 lumbosacral radiculopathies, chronic left femoral neuropathy (which can be seen with a diabetic amyotrophy), mixed axonal sensorimotor demyelinating polyneuropathy consistent with a mild-to-moderate diabetic polyneuropathy, and underlying bilateral peroneal neuropathy which is severe on the left, most likely localized to the fibular head. The evidence does not demonstrate a disability picture that warrants the assignment of an evaluation greater than 20 percent. The evidence shows that there was no muscle atrophy and that the Veteran's symptoms are primarily sensory in nature. The Veteran demonstrated normal muscle strength at both VA examinations and normal reflexes except for the ankle jerk (S1) response, which was hypoactive in both examinations. The Board finds the reports of the VA examiners should be accorded significant probative weight, as they were based on full consideration of the Veteran's documented history and assertions, and included thorough examinations eliciting information necessary to evaluate his service-connected disability under the applicable rating criteria. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)) and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (holding that the credibility and weight to be attached to medical opinions are within the province of the Board). Although the Veteran's private medical records show some degree of decreased strength in the gastrocnemius-soleus and the EHL, such decrease in strength is noted to be mild. Additionally, the private physician who performed the needle EMG nerve conduction study in June 2011 noted that the evidence found was consistent with mild-to-moderate S1 lumbosacral radiculopathy. The Board finds that the Veteran's left lower extremity disability does not meet the level of impairment contemplated in the schedule for a 40 percent rating on the basis of moderately severe incomplete paralysis of the left sciatic nerve. On balance, the Board concludes that the disability picture presented more closely approximates the criteria for a 20 percent evaluation. On or after September 8, 2011 The Veteran was afforded another VA examination for his spine disability in December 2011. Muscle strength testing showed normal strength for left hip flexion, knee extension, and ankle plantar flexion, and active movement against some resistance for ankle dorsiflexion and great toe extension. The examiner noted that there was no muscle atrophy. Sensory examination of the left lower extremity showed normal sensation to light touch for the upper anterior thigh and thigh/knee and decreased sensation to light touch for the lower leg/ankle and the foot/toes. Reflex examination of the left lower extremity was normal for the knee and ankle. When assessing the Veteran's radiculopathy of the left lower extremity, the examiner noted no constant or intermittent pain, but did note severe paresthesia and/or dysesthesia and moderate numbness. The examiner indicated involvement of the L2/L3/L4 nerve roots (femoral nerve) and the L4/L5/S1/S2/S3 nerve roots (sciatic nerve). The examiner noted the severity of the Veteran's left side radiculopathy as "moderate." The Veteran's most recent VA examination for his spine disability was conducted in July 2013. The Veteran again reported numbness of his left foot at all times, and numbness outside the leg to about the knee, also with burning across the anterior left thigh. The examiner noted no muscle atrophy and normal strength for left hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. Reflexes of the left knee were noted as normal and ankle reflexes were hypoactive. Sensation testing resulted in normal sensation of light touch to the left upper anterior thigh, thigh/knee, and lower leg/ankle, with decreased sensation in the foot/toes. The examiner noted no constant pain for the left lower extremity but mild intermittent pain (usually dull), mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. Involvement of L4/L5/S1/S2/S3 (sciatic nerve) was noted for the left side, and the examiner noted the severity of the Veteran's left side radiculopathy as "mild." The Board finds the reports of the VA examiners should be accorded significant probative weight, as they were based on full consideration of the Veteran's documented history and assertions, and included thorough examinations eliciting information necessary to evaluate his service-connected disability under the applicable rating criteria. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)) and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (holding that the credibility and weight to be attached to medical opinions are within the province of the Board). VA treatment records from this period document continued difficulties with pain, burning, and numbness of the left lower extremity, but do not demonstrate disability more severe than that documented by the VA examinations. The evidence does not demonstrate a disability picture that warrants the assignment of an evaluation greater than 40 percent on or after September 8, 2011. The evidence of record shows that there was neither marked muscular atrophy nor severe paralysis of the sciatic nerve. While the December 2011 VA examiner did note that the Veteran had severe paresthesia and/or dysesthesia of the left lower extremity, overall, the examiner deemed the Veteran's radiculopathy was "moderate." As, no evidence exists in the record of muscular atrophy, or symptoms rising to the same severity of those required for a 60 percent rating, the Board finds that a higher rating than the one currently assigned is not warranted. The Veteran has asserted continued complaints of numbness and pain in his left lower extremity throughout his appeal. The Veteran's statements describing his symptoms are considered to be competent evidence. See Jandreau v. Nicholson, 492 F.3d 1371 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). He is also found to be credible in these assertions. See Caluza v. Brown, 7 Vet. App. 498 (1995). In this regard, while the Veteran is competent to report his symptoms, the Board finds the medical evidence of record is afforded greater probative weight because whether his left lower extremity disability falls under the specific diagnostic criteria necessitated for a particular rating is a medical question which is not answerable by lay person. Id. Extraschedular considerations The Board finds that the record does not reflect that the Veteran's left lower extremity disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). Initially, 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. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extra-schedular consideration referral). The schedular evaluation for the Veteran's left lower extremity disability is adequate. The Veteran does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. The Veteran does not have "exceptional or unusual" disabilities; he merely disagrees with the assigned evaluation for his level of impairment. The available schedular evaluation for this service-connected disability is adequate. Referral for extra-schedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extra-schedular consideration is moot. See Thun, 22 Vet. App at 115. The evidence also shows no distinct periods of time since the beginning of the appeal period during which manifestations of the Veteran's low back disability varied to such an extent that ratings in excess of 10 percent prior to June 9, 2008, in excess of 20 percent from June 9, 2008, or in excess of 40 percent from September 8, 2011 are warranted. Thus, additional staged ratings are not in order for the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Lastly, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is raised by the record. In this case, the Veteran has not argued, and the record does not otherwise reflect, that his left lower extremity disability renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised in connection with his claim for an increased rating for his left lower extremity disability. Finally, as the preponderance of the evidence is against an increased evaluation for the left lower extremity disability in excess of 10 percent prior to June 9, 2008, in excess of 20 percent from June 9, 2008 and in excess of 40% from September 8, 2011, the benefit of doubt is not applicable. See Gilbert, 1 Vet. App. 49 (1990). ORDER Entitlement to an increased evaluation for left foot numbness and tingling, to include left lower radiculopathy secondary to residuals of discectomy, to include ratings in excess of 10 percent prior to June 9, 2008, in excess of 20 percent from June 9, 2008, and in excess of 40 percent from September 8, 2011, is denied. REMAND Reason for Remand: To issue a Statement of the Case. In an October 2009 rating decision, the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida denied the Veteran's claim for entitlement to a total disability rating due to individual unemployability due to his service-connected arthritis/disc disease of the lumbar spine, status post discectomy. The Veteran submitted a Notice of Disagreement with this rating decision, which was received by VA in March 2010. When an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the issue of entitlement to service connection for ischemic heart disease associated with herbicide exposure must be remanded for the issuance of an SOC and to give the Veteran the opportunity to complete an appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case addressing the issue of entitlement to TDIU. The appellant should be provided the opportunity to perfect a timely substantive appeal (VA Form 9) with respect to that issue. The RO is free to undertake any additional development deemed necessary with respect to that issue. 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. 2013). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs