Citation Nr: 1601410 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 09-01 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for a recurrent low back strain. 2. Entitlement to an increased initial evaluation for right lower extremity neuropathy, rated as 10 percent disabling prior to July 18, 2013, and as 20 percent disabling thereafter. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 1, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran had active service from June 1970 to June 1972 and from May 1975 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In that rating decision, the RO granted an increased evaluation of 40 percent for a recurrent low back strain effective from December 11, 2006. The RO also granted service connection for right lower extremity neuropathy and assigned a 10 percent evaluation effective on December 11, 2006. The Veteran appealed the assigned evaluations. In a March 2012 rating decision the RO granted service connection for left lower extremity neuropathy and assigned a 10 percent disability rating effective January 26, 2010. In an August 2013 rating decision, the disability rating for neuropathy of the bilateral lower extremities was increased to 20 percent effective July 18, 2013. While the Veteran has disagreed with the disability rating assigned to the neuropathy of the right lower extremity,, he has not disagreed with the disability rating assigned to the left lower extremity. Accordingly, the Board will not assume jurisdiction over the disability rating assigned to the left lower extremity. The Board notes that, pursuant to his request, the Veteran was scheduled for a March 2013 hearing before the Board at the RO in Albuquerque, New Mexico; however, he failed to report for that hearing. As he has not provided cause for his failure to appear or requested another hearing, the Veteran's hearing request is deemed withdrawn, and the Board will proceed with its review on the present record. See 38 C.F.R. § 20.704(d), (e). In June 2013, the Board remanded the claim for further development. The requested development has been substantially complied with and the claims are ready for appellate review. During the pendency of his claim, the Veteran raised the issue of entitlement to a TDIU. While he was eventually granted a TDIU in June 2012, effective September 1, 2012, the Board finds that the issue of entitlement to a TDIU was raised prior to September 1, 2012 in the context of his appeal for an increased rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the issue of entitlement to a TDIU prior to September 1, 2012 has been listed on the title page and is addressed in the remand portion below. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issues of entitlement to TDIU and the initial disability rating for right lower extremity are addressed in the REMAND portion of the decision below. They are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran's low back strain is manifested primarily by constant pain and decreased thoracolumbar motion which restricted his ability to stand, walk, or drive for long periods of time without any ankyloses. CONCLUSION OF LAW The criteria for an increased disability rating for lumbar strain and degenerative disc disease, rated as 40 percent disabling are not met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, pre-decisional letters dated in November 2007 and March 2008, and an additional letter dated in January 2011, notified the Veteran of the information and evidence needed to substantiate his claims. Consistent with Dingess, the pre-decisional letters also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected. Thus, because the VCAA notice was legally sufficient, VA's duty to notify has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His available service treatment records, claims submissions, lay statements, identified and relevant private treatment records, and VA treatment records have been associated with the record. The Board notes that Albuquerque, New Mexico VA Medical Center outpatient treatment records from January 2006 to December 2007 have not been obtained and associated with the claim file. The RO issued a formal finding of unavailability in April 2012 stating the efforts made to obtain the records and the reason for their unavailability. The Veteran was informed of the same and afforded an opportunity to submit any records himself. However, to date, he has not done so. Therefore, the Board finds that the duty to assist with regards to these records has been fulfilled. The Board also notes that in the June 2013 remand, the Board requested that the RO obtain the private treatment records form the private doctor who treated the Veteran for his back disability as identified in the September 2011 VA treatment records. In July 2013, the AOJ sent a letter to the Veteran requesting that he provide the names of the physician and submit a release of information form. The Veteran did not respond to the request. The duty to assist is not a one-way street, and the Veteran has not provided the evidence requested. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, without the Veteran's participation, the VA is unable to obtain the identified relevant private treatment records. No additional actions were available or required of the VA pertaining to these records. During the course of this appeal, the Veteran was afforded various VA examinations of his spine and neuropathies. The examinations, along with the other evidence of record, are fully adequate for the purposes of determining the current severity of his lumbar spine disability and all associated neurological manifestations. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Legal Criteria and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases where there is a question as to which of two ratings applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's defined and consistently applied policy is to administer the law under a broad interpretation; however, in a manner that is consistent with the facts shown in each case. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The rating criteria for spine disabilities are expressed under DCs 5235 through 5242. In this case, the Veteran's lumbar spine disability has been rated under DC 5237, which governs disabilities due to lumbosacral or cervical spine strain. Regardless of which criteria between DC 5235 through 5242 that the RO selects, disabilities characterized under those diagnostic codes are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, a 40 percent disability rating is assigned where the evidence demonstrates forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is appropriate for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating contemplates unfavorable ankylosis of the entire spine. For VA compensation purposes, the "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a (Plate V) indicates that normal range of motion of the thoracolumbar spine consists of flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Ankylosis has been defined as, "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 69 (4th ed. 1997)). The criteria under the General Formula contemplate symptoms such as pain, stiffness, aching, etc., where such symptoms are shown in the record. Thus, evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. 68 Fed. Reg. 51,455 (Aug. 27, 2003). Indeed, the Board observes service connection for bilateral lower extremity neuropathy of the bilateral legs has been granted with an initial disability rating of 10 percent disabling prior to July 18, 2013, and a 20 percent disability rating thereafter. Disabilities of the musculoskeletal system, such as spine disabilities, are defined primarily by the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the evidence on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran was afforded a VA spine examination in January 2008. At the time, he reported low back pain of 7-8 out of 10 without medication and 4-5 out of 10 with medication. He reported his pain was constant and on a daily basis, and radiates down to the right leg, on the lateral side of the leg from the thigh to the top of the foot. He reported numbness and tingling down the right leg and pain down both legs. He also reports a history of fatigue, decreased motion, stiffness, muscle spasm and moderate pain. He reported being on medical disability leave from work due to his back pain. Upon physical examination, there was guarding, spasm and tenderness along the spine, but no atrophy or weakness. Posture was normal. Gait was antalgic, ataxic with poor propulsion. Sensory and reflex examinations were normal, and it was noted he had no ankyloses of the lumbar spine. Range of motion was passive flexion to 25 degrees and active flexion to 20 degrees, with pain on both active and passive at 20 degrees. Extension was to 5 degrees passive, and to 3 degrees active with pain at 3 degrees on both active and passive motion. Bilateral lateral flexion and bilateral lateral rotation were all to 10 degrees both on passive and active motion, with pain at 10 degrees. There was no additional loss of motion on repetitive use. The diagnosis was degenerative disc and joint disease of the lumbar spine with right neuropathy. It was noted the disability had significant effects on his daily living and occupation causing restricted movement, pain, and problems with lifting and bending. The Veteran was afforded another VA examination in April 2008 for unrelated conditions. In the examination report, the examiner noted that the Veteran's back disability had a significant effect on his employability, to include sedentary employment. The examiner stated that the Veteran is in pain medications which cause him to slow down. Due the back pain, he has problems with sitting, mobility, lifting and carrying, and difficulty reaching. The pain causes decreased efficiency and productivity. The examiner concluded by stating the Veteran's back disability interferes with his ability for future physical and sedentary work. An opinion as to unemployability was obtained in August 2008. The examiner noted that while the Veteran was service connected for other disabilities, he was claiming unemployability due to his back. The examiner noted that the Veteran had to quit his employment of 17 years due to his back pain causing him problems with moving, lifting, and sitting, including sitting at a computer. The examiner reported the Veteran had to leave his job the prior November due to problems in lifting heavy tools, driving long distances, sitting on the computer, standing for more than 10 minutes, and walking more than a block. In addition, his pain medications made him drowsy and affected his concentration. The examiner noted that the Veteran has problems with sedentary work as he cannot sit for more than 15 minutes. In an October 2008 letter, the Veteran's private physician, Dr. C.D.G., stated that the Veteran has a failed surgery of the lumbar spine with chronic pain in the back and only sedentary work possible on occasion. He noted he could not work for more than 4 hours a day. At a February 2010 VA examination the Veteran reported constant pain on the left lower extremity which prevents him from walking more than a block. He reported numbness on his right leg. Sensory exam was normal except for decreased light touch on both lower extremities, and decreased pin/prick exam on the left leg. The Veteran reported pain in the left leg with standing and walking from the lateral thigh to the medial calf. On the right leg, he reported numbness on the entire leg without pain, but with paresthesias when supine. He was diagnosed with bilateral lower extremity neuropathy. It was noted this was associated with the spine disability and not the Veteran's diabetes mellitus. An MRI showed significant nerve root irritation with polyradiculopathy. The examiner opined that the bilateral neuropathy prevented the Veteran from tolerating prolonged weight bearing activity. Sedentary work is feasible with frequent changes in position. At the February 2010 VA examination, range of motion of the lumbar spine was noted to be flexion to 60 degrees, extension to 15 degrees, bilateral lateral rotation to 30 degrees, right lateral flexion to 15 degrees, and left lateral flexion to 20 degrees. Objective pain on active motion was noted, and there was pain on repetitive motion but no additional loss of motion on repetitive use. Regarding employability, the examiner noted the Veteran has difficulty tolerating prolonged sitting requiring alternating in position every 15 minutes which may not be suitable for sedentary employment. He cannot perform heavy manual labor or prolonged weight bearing, including heavy lifting/pushing/pulling prolonged bending. The Veteran was afforded another VA examination in December 2010. At the time, he reported intermittent chronic back pain which is sharp and of an intensity of 4 out of 10. He reporeted the only therapy for pain is swimming. He also reported his pain to be constant and to worsen with weight bearing activities. He described constant left lower leg pain and being unable to walk for more than a block as the pain worsens and his right leg goes numb. Physical examination showed decreased light touch with normal pin/prick, vibration and position sense exams on the right leg. The left leg showed decreased pin/prick and decreased light touch sensation, with normal vibration and position sense. The examiner entered a diagnosis of neuropathy of the bilateral lower extremities resulting from the back disability. The examiner opined that sedentary work was feasible with frequent position changes. Regarding the back, examination showed forward flexion to 60 degrees, extension to 15 degrees, left lateral flexion to 15 degrees, right lateral flexion to 20 degrees, and bilateral lateral rotation to 30 degrees. There was no additional loss of function due to repetitive use; however, there were objective signs of pain. In a September 2011 VA outpatient treatment note, the Veteran reported that his back pain had worsened and it kept him up at night. He indicated that he had an "outside provider and pain clinic consult pending for [a] possible implant." He noted that Doxepin did not relieve his symptoms, he requested a refill for Trazodone, and he indicated that he used Temazepam four times per week as needed for his pain. A December 2011 VA treatment note also shows that the Veteran had a dorsal column stimulator (DCS) implanted over the right side of his pelvic and thoracic spine area due to his severe low back pain. At a July 2013 VA examination the Veteran reported his back had worsened since the last examined. He reported he had a neurostimulator implanted in December 2011. He reported taking Hydrocodone and ibuprofen for the pain, and gets epidural injections every 3 months. The pain is constant and radiates down to the thighs. On examination forward flexion was to 70 degrees, extension to 10 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees and right and left lateral rotation to 30 degrees. After repetitive use, forward flexion was to 50 degrees, extension to 10 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees and right and left lateral rotation to 30 degrees. The examiner noted there was additional limitation of motion after repetitive testing. The Veteran denied any flare ups, but it was noted he had functional of less movement than normal and pain on movement. There was no guarding and muscle strength was normal. There was no muscle atrophy and sensory examination was normal. The examiner noted that the Veteran had intervertebral disc syndrome, but no incapacitating episodes in the last 12 months. Scars were noted, but none were painful or stable, and none were 36 square centimeters in size. Under the General Formula, the Veteran's entitlement to a disability rating higher than 40 percent for lumbar strain and degenerative disc disease depends upon an evidentiary showing of unfavorable ankylosis. Upon careful review and consideration of the evidence outlined above, the Board finds that the evidentiary record shows there is no ankyloses of any type at any point during the appeal period, nor the equivalent of the same, and that the Veteran has retained movement, albeit restricted, throughout the appeal period. The evidence at all of the VA examinations shows that the Veteran's spine disability was manifested primarily by pain and decreased thoracolumbar motion. Notably, the examiners in all of the examinations specifically noted the Veteran had no ankyloses. Moreover, an altered gait was not noted at any point. Significantly, the Veteran has not argued ankyloses of his spine, and even when considering repetitive use, anklyosis, or the functional equivalent of ankyloses have not been shown. Finally, the evidence of record does not establish that the Veteran currently has bowel, bladder, or erectile dysfunction as a result of his lumbar spine disability. While the record may show some bladder and erectile dysfunction, the record is clear that these are attributable to the diabetes mellitus and not the lumbar spine disability. Therefore, the Board finds that the Veteran is not entitled to separate ratings for any additional manifestations of his lumbar spine disability. The Board recognizes that the Veteran has radiculopathy manifestations from his lumbar spine disability; however, these will be discussed in the remand section below. Finally, the Board notes that while there is evidence of scars associated with surgeries of the lumbar spine, the Veteran has been separately rated for these scars and he has not appealed the disability rating assigned. Moreover, as noted above, the initial rating for right leg radiculopathy is being remanded. Here, the Board is cognizant of, and has carefully considered, the Veteran's subjective reports. However, none of the criteria required for a disability rating in excess of the 40 percent rating were diagnosed or objectively noted during the period on appeal. The VA and private treatment notes of record similarly do not provide objective support for a higher rating. Under these circumstances, the overall evidence does not meet or approximate the criteria for a disability rating in excess of 40 percent for the Veteran's lumbar spine disability under 38 C.F.R. § 4.71a. Throughout the appeal period, the Veteran's level of disability has most nearly approximated that contemplated by a 40 percent evaluation. Ankylosis of any kind has not been shown. The Veteran has, while limited, retained movement in his lumbar spine. For all of these reasons, the Veteran's appeal must be denied. The Board has also considered whether a "staged" disability rating is warranted by the evidence. The symptomatology shown upon examination and treatment, however, has been essentially consistent and fully contemplated by the assigned disability rating. As such, there is no basis for a staged disability rating in this case. Extraschedular rating In considering the other provisions under 38 C.F.R., Parts 3 and 4, as mandated under Schafrath, the Board has considered application of the provisions under 38 C.F.R. § 3.321(b)(1) , which govern the assignment of extra-schedular disability ratings. In Thun v. Peake, 22 Vet App 111 (2008), the United States Court of Appeals for Veterans Claims (Court) established a three-step inquiry for determining whether an extra-schedular rating is warranted by the evidence. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, 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 extra-schedular rating. Considering the first prong under Thun, the Board concludes that the evidence in this case does not show that the manifestations from the Veteran's lumbar spine disability have resulted in an exceptional disability picture that renders inadequate the available schedular criteria. In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and, no extra-schedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). Here, a comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the selected rating criteria reasonably describe the Veteran's disability levels and symptomatologies. As discussed above, higher ratings are available under the selected code provisions; however, the Veteran's lumbar spine disability has not been productive of the manifestations or disability picture required for a higher disability rating. As such, it cannot be said that the available schedular ratings are inadequate. Based on the foregoing, the Board finds that the requirements for an extra-schedular evaluation for the Veteran's service-connected lumbar spine disability and lower extremity radiculopathies, under the provisions of 38 C.F.R. § 3.321(b)(1), have not been met. Thun, 22 Vet. App. 111; Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to a disability rating in excess of 40 percent for recurrent low back strain is denied. REMAND A veteran may be awarded a total (100 percent) rating based in individual unemployability (TDIU). The term "unemployability" has been defined as the same as an inability to secure and follow substantially gainful employment VAOPGCPREC 75-91 (December 27, 1991). A request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this regard, VA's Office of General Counsel has stated that when the issue of entitlement to a TDIU for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board would have jurisdiction to consider the TDIU issue. See VAOPGCPREC 6-96 at para. 12, 13 (August 16, 1996); Cf. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995). TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2014). A veteran is eligible for TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more). 38 C.F.R. § 4.16(a). Here, the Board notes that TDIU has been granted effective September 1, 2012. However, as noted above, the issue of entitlement to TDIU prior to September 1, 2012 has been raised by the record. Moreover, the record shows that the Veteran has been unemployed since November 2007. He has consistently argued that his unemployability is due to his service connected back disability. A review of the record shows, however, that the Veteran did not meet the schedular criteria for TDIU until January 26, 2010. However, extraschedular TDIU may be granted when the schedular criteria under 38 C.F.R. § 4.16(a) are not met, but the Veteran still contends that he is unemployable because of his service-connected disability. Past precedent indicates that the Board does not have the authority to consider TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001); Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995). However, the prohibition against addressing an extraschedular TDIU in the first instance has been implicitly overruled. See, e.g., Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014); Wages v. McDonald, No. 13-2694, 2015 WL 293616 (Jan. 23, 2015). Regardless, if the Board determines that further action is necessary with respect to TDIU, the Board should remand rather than refer the TDIU issue for further development. See VAOPGCPREC 6-96 at para. 12, 13 (August 16, 1996); Cf. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995). The record shows that the Veteran has recently been awarded service connection for several disabilities, including diabetes mellitus type II and major depression associated with recurrent low back strain, with effective dates which predate the current effective date of the grant for TDIU. While there are opinions of record regarding employability as to the effects of some of the service connected disabilities individually, there is no opinion of record which discusses the Veteran's employability when considering all of the service connected disabilities. As to the Veteran's bilateral leg neuropathies, the Veteran was most recently afforded a VA examination in July 2013. At the time, he was afforded a spine examination and a peripheral neuropathy examination. In the spine section of the examination report, muscle strength testings were noted to be normal. However, in the neuropathy section of the examination, the Veteran was noted to have no muscle movement on knee extension, ankle plantar flexion and ankle dorsiflexion bilaterally. These movements were included within the normal findings in the spine examination. The Board finds these findings to be inconsistent and confusing and a new examination of the peripheral nerves is needed prior to deciding the claim. Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the Veteran for a VA examination to assess the current level of severity of the Veteran's bilateral neuropathies of the lower extremities. The claim file should be made available to the examiner and the examination report should state that a review of the file has been completed. The examiner should identify any neurological findings in the right and left lower extremities and fully describe the extent and severity of those symptoms. The examiner should identify the specific nerve(s) involved, to include whether there is incomplete or complete paralysis, and offer an opinion as to the degree of impairment of the nerve (that is, whether it is mild, moderate, or severe in nature). A full reasoning should be provided for all opinions rendered. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 2. The AOJ should obtain an examination to determine the functional impairment associated with all of his service-connected disabilities, to include the effects of those disabilities on occupational duties and activities of daily living. The claim file should be made available to the examiner and the examination report should state that a review of the file has been completed. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. Thereafter, the AOJ should adjudicate the issues of the disability rating for right leg neuropathy and entitlement to TDIU prior to September 1, 2012 to include possible extraschedular consideration. If the benefits sought are not fully granted, the AOJ should then furnish a supplemental statement of the case (SSOC), before the claims file is returned to the Board for further adjudication. 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 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 2014). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs