Citation Nr: 1341399 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-28 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for lumbar disc disease with radiculitis, rated 20 percent prior to November 30, 2010, and 40 percent from then. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and M.R. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from April 1968 to November 1968. This matter arises to the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that in pertinent part, denied an increased rating for the lumbar spine. The Board remanded the case in April 2010 for development. During the remand period, in April 2011, the RO granted a 40 percent rating for lumbar disc disease with radiculitis, effective November 30, 2010. In August 2011, the Board remanded the case for more development. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. Although a March 2010 chiropractic report, received by the RO in April 2011, pertains to an association of nerve pain of the hands with the service-connected lumbar spine disability, the Board denied service connection for upper extremity peripheral neuropathy in its April 2010 decision. The Veteran has not appealed that decision to the United States Court of Appeals for Veterans Claims (hereinafter: the Court), nor has he requested reconsideration of that decision by the Chairman of the Board. The Board therefore currently lacks jurisdiction to address this matter. Entitlement to a total disability rating based on individual unemployability (hereinafter: TDIU) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The service-connected thoracolumbar spine disability has been manifested throughout the appeal period by flexion limited to no worse than 10 degrees; neither ankylosis of the thoracolumbar spine nor incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the last 12 months is shown. 2. During the appeal period, left lower extremity radiculopathy and right lower extremity radiculopathy have been manifested only by sensory deficits. CONCLUSIONS OF LAW 1. For the period prior to November 30, 2010, the criteria for a schedular 40 percent rating for lumbar disc disease are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71 Plate V, 4.71a, Diagnostic Code 5243 (2013). 2. For the entire appeal period, the criteria for a schedular rating greater than 40 percent rating for lumbar disc disease are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Plate V, § 4.71a, Diagnostic Code 5243 (2013). 3. For the entire appeal period, the criteria for a schedular rating greater than 10 percent for left lower extremity radiculopathy are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8520 (2013). 4. For the entire appeal period, the criteria for a separate 10 percent schedular rating for right lower extremity radiculopathy are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has complied with all remand orders of the Board. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and VA must assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the notice letter must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about 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). VA's notice requirements that are set forth at 38 U.S.C.A. § 5103(a) and at 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 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, VA must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA's duty to notify the claimant was satisfied by a letter sent to the claimant in July 2006 with regard to the claim for a higher disability rating. The letter addresses all of the notice elements and was sent prior to the initial unfavorable decision issued by the RO in October 2006. VA's duty to assist the Veteran in the development of the claim has also been met. His service treatment records (STRs) and all pertinent VA and private treatment records have been obtained and associated with the file. VA examinations pertinent to the issue on appeal were performed in July 2007, May 2009, November 2010, and September 2011. 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. Nicholson, 21 Vet. App. 303, 312 (2007). The medical opinions obtained in this case are adequate. The medical experts considered the pertinent evidence of record and the statements of the claimant and provided a rationale for their opinions, relying on and citing to the records reviewed. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. See 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i); also see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. For disabilities evaluated on the basis of limitation of motion (as is the spine rating on appeal in this case), VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination, including during flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 38 C.F.R. § 4.59 addresses painful motion. A portion of § 4.59 states: The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record"). Burton v. Shinseki, 25 Vet. App. 1 (2011). In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. Where an increase in disability is at issue, the present level of disability, rather than remote history, is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Lumbar Spine Rating The RO has rated the service-connected lumbar spine disability 20 percent disabling prior to November 30, 2010, and 40 percent from that date under Diagnostic Code 5243. Spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine set forth as follows: 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also Diagnostic Code 5003) 5243 Intervertebral disc syndrome Also available are ratings based on duration of incapacitating episodes over the past 12 months. According to the September 2011 VA compensation examination report, there were at least 4 weeks but less than 6 weeks of incapacitating episodes of intervertebral disc syndrome in a recent 12 month period. This warrants a 40 percent schedular rating, but no higher, for intervertebral disc syndrome. A 60 percent schedular rating for intervertebral disc syndrome is warranted where incapacitating episodes have a total duration or at least 6 weeks during the last 12 months. The medical evidence does not reflect that there has been 6 weeks of incapacitation during any 12-month period. The schedular rating provides that unless the spine is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, it is rated as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine.......................................100 Unfavorable ankylosis of the entire thoracolumbar spine...........................................................................................50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.....................................................................40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. .........................................30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.. ........................................................................................20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.............................................................................................................10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. In July 2008, the Veteran testified before an RO hearing officer that he was not able to bend over to tie his shoes and not able to do most daily activities. He testified that he took three different brands of pain-killers. He recalled a history of incapacitating episodes that had occurred an undetermined number of years earlier, but none recently. In February 2010, the Veteran testified before the undersigned Veterans Law Judge that low back pain limited most daily activities. He testified that VA continued to treat his low back pain. He testified that lower extremity weakness comes and goes, but left lower extremity pain occurred continuously. The lumbar spine has been manifested throughout the appeal period by severely limited flexion that has been as worse as 10 degrees. Comparing this manifestation with the criteria of the rating schedule, the Board finds that the criteria for a schedular rating greater than 40 percent under Diagnostic Code4243 are not more nearly approximated. This is because ankylosis of the thoracolumbar spine has not been shown at any time during the appeal period. While a 40 percent schedular rating has already been granted for the latter portion of the appeal period, there is ample basis for granting a 40 percent rating for the earlier portion of the appeal period also. The basis for extending the 40 percent rating to the earlier portion of the appeal period is three-fold. First, in September 2006, the Veteran's fingertips could not reach to within 20-inches of the floor. Second, in July 2007, a VA physician reported that the Veteran could not bend at the waist due to back and left leg pains. Third, in July 2008, the Veteran testified that he was not able to bend over and tie his shoes. While the examiners did not express this limitation in degrees of thoracolumbar spine flexion, resolving reasonable doubt in favor of the Veteran, the Board concludes that flexion limited to 30 degrees was more nearly approximated during the earlier portion of the appeal period. Concerning additional functional impairment due to factors set forth in Deluca, the Board has considered limitation of motion due to pain and any resulting additional functional impairment. The examination reports do not show additional range-of-motion lost due to weakened movement, excess fatigability, or incoordination. DeLuca, 8 Vet. App. at 206. Thus, the criteria of a 50 percent rating for the lumbar spine are not more nearly approximated, even considering the DeLuca tenets. After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim for a schedular rating greater than 40 percent for the thoracolumbar spine for any portion of the appeal period. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App., at 53. After considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise as to whether the 40 percent criteria are more nearly approximated prior to November 30, 2010. Therefore, a 40 percent schedular rating is granted for the earlier portion of the appeal period. Separate Ratings for Radiculopathy As set forth at Note (1) above, the rater must separately evaluate any associated objective neurologic abnormalities under an appropriate diagnostic code. The Board construes Note 1 to confer upon the Board adjudicative jurisdiction over such neurologic ratings by virtue of the appealed spine disability rating. VA's AMC has already assigned a 10 percent schedular rating under Diagnostic Code 8520 for the entire appeal period for left lower extremity radiculopathy. Thus, the Board must determine whether a schedular rating greater than 10 percent is warranted for any portion of the appeal period for the left lower extremity and whether a compensable schedular rating is warranted for any portion of the appeal period for the right lower extremity. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. Absent organic changes, the maximum rating will be moderate, unless sciatic nerve involvement is shown. 38 C.F.R. § 4.123 (2013). Neuralgia, cranial or peripheral, is usually characterized by a dull and intermittent pain, of typical distribution, so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2013). For disease of the peripheral nerves, the term "incomplete paralysis" when used with peripheral nerve injuries indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral combine with application of the bilateral factor. Diagnostic Code 8520 is analogous to lower extremity radiculopathy because the anatomical area of the neurologic deficits more nearly approximates the level of disability produced by sciatica when considering functional impairment, anatomical location, and symptomatology. 38 C.F.R. § 4.20. Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation requires moderate incomplete paralysis. A 40 percent evaluation requires moderately severe incomplete paralysis. A 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124(a), Diagnostic Code 8520. The evidence for left lower extremity radiculopathy includes a September 2006 VA consultation report that notes that the Veteran reported left buttock and leg pains. No motor weakness was found during that consultation. Three days later, the September 2006 compensation examination report reflected left radicular pain all the way to the left foot, but no motor weakness or atrophy of either lower extremity. The examiner, a VA physician's assistant, also found left and right lower extremity sensory loss to fine touch due to peripheral neuropathy, but dissociated this bilateral peripheral neuropathy from the lumbar spine disability. The September 2006 negative medical opinion mentioned above was soon controverted by the Veteran's VA treating physician. In April 2007, the Veteran's physician (an M.D.) wrote "[The Veteran's] peripheral neuropathy pain is more likely than not caused by his service-connected disc rupture and is 100 % disabled in my opinion." A private MRI report of January 2007 reflects a history of chronic low back pain that radiates to both legs and feet. There was numbness and tingling too. A May 2007 VA out-patient treatment report states, "Patient has had a previous EMG which are said to be normal. My experience is that EMGs are not helpful with sensory radiculopathy and neurology. In addition, patient has a bilateral sensory peripheral neuropathy, possibly of a metabolic cause." A July 2007 VA compensation examination report reflects that the Veteran reported left foot and left leg tingling and weakness. The examiner found diminished monofilament responses in both feet. A November 2010 VA compensation examination report reflects that both lower extremities exhibited normal sensory and motor examinations. The diagnosis was lumbar degenerative disc disease with left lumbar radiculopathy. In March 2010, private chiropractor, F. Schwimmerer, reported that a problem at L5-S1 could cause radiculopathy or nerve pain of the hands and feet. The chiropractor explained that a lower back injury can destabilize the entire spine and cause back instability, twisting, or tilting. This can stretch or pinch nerves that serve the hands and feet. In September 2011, the Veteran underwent a VA compensation examination. The physician noted that the diagnosis was lumbar spine degenerative disc disease and left leg radiculitis. There was moderate, constant, left lower extremity pain, paresthesias, and numbness. No radiculopathy symptom was shown on the right lower extremity. The evidence mentions left foot weakness only during the July 2007 VA compensation examination. No other medical report and no other assertion of the Veteran support a claim of weakness of the left lower extremity. Moreover, other medical reports and the Veteran have specifically denied left lower extremity weakness. Thus, the preponderance of the evidence is against a finding of any left lower extremity motor weakness. Because sensory deficits with no motor involvement are shown, the left lower extremity radiculopathy more nearly approximates mild sciatica. Thus, a 10 percent rating under Diagnostic Code 8520, for the left lower extremity is warranted and the preponderance of the evidence is against a schedular rating greater than 10 percent for left lower extremity radiculopathy. Because a 10 percent rating for the entire appeal period has already been granted for left lower extremity radiculopathy, the claim for a rating greater than 10 percent must be denied. Turning to the correct rating for right lower extremity radiculopathy, the medical evidence for and against a finding of right lower extremity radiculopathy is in controversy. While several medical reports mention or suggest right lower extremity radiculopathy, the September 2011 VA compensation examination report reflects that no right lower extremity radiculopathy symptom was shown. Resolving reasonable doubt in favor of the Veteran, the Board finds that right lower extremity radiculopathy exists, but that it is wholly sensory and productive of no more than mild incomplete paralysis. The criteria for a separate 10 percent schedular rating for right lower extremity radiculopathy are therefore more nearly approximated for the entire appeal period. In this case, the evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disabilities exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. Hart, 21 Vet. App. at 510. Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). This is further addressed in the REMAND portion of the decision. ORDER For the period prior to November 30, 2010, an increased, 40 percent, schedular rating for lumbar disc disease is granted, subject to the laws and regulations governing payment of monetary benefits. For the entire appeal period, a schedular rating greater than 40 percent for lumbar disc disease is denied. For the entire appeal period, a schedular rating greater than 10 percent for left lower extremity radiculopathy is denied. For the entire appeal period, a separate 10 percent schedular rating for right lower extremity radiculopathy is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND Where the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record amply raises the issue of entitlement to TDIU due to the service-connected lumbar spine disability. Social Security Administration records reflect that the Veteran is disabled due to discogenic disease of the spine and the Veteran has reported to VA that he had to stop working because of back pain. As such, the issue is properly before the Board. Further development is needed to properly adjudicate the TDIU claim. TDIU may be assigned where the schedular rating is less than total when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). In this case, the service-connected disabilities do not appear to meet these guidelines, even considering the additional benefits granted herein. However, the guidance set forth at 38 C.F.R. § 4.16 (b) and § 3.321 (b) do apply to this case. A total rating may be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Slightly different criteria for an extra-schedular rating are set forth at 38 C.F.R. § 3.321(b). That subsection provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Please note that unemployability need not be shown. However, the Court has determined that the Board cannot grant an extra-schedular rating, whether that is an extra-schedular TDIU rating, or some other extra-schedular disability rating, in the first instance. Floyd v. Brown, 9 Vet. App. 88. 95-6 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); also see VAOPGCPREC. 6-96. Accordingly, this case is remanded to the AMC for the following action: 1. The AMC should develop the TDIU claim as necessary. This includes offering an appropriate examination to determine whether it is at least as likely as not (50 percent or greater possibility) that service-connected disabilities preclude securing and following a substantially gainful occupation. Following development and adjudication of the TDIU claim, if the benefit is not granted, the AMC should submit it to the Director, Compensation and Pension Service, for extra-schedular consideration in accordance with 38 C.F.R. § 4.16(b) and § 3.321 (b). 2. Following the above, the AMC should review all the relevant evidence and adjudicate the TDIU claim. If the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). If an examination is scheduled, failure to report for a scheduled examination, without good cause, may result in adverse consequences on the claim for benefits. 38 C.F.R. § 3.655(b) (2013). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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