Citation Nr: 1759933 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 13-02 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbar spine osteoarthritis with degenerative disc disease (DDD) at L4/L5 and L5/S1, to include consideration of ratings warranted for associated neurologic abnormalities. 2. Entitlement to a total disability rating based on individual unemployablity due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.D., Associate Counsel INTRODUCTION The Veteran served on active duty from November 1980 to February 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2011 and April 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction of this case was subsequently transferred to Wichita, Kansas. In January 2015 and December 2016, the Board remanded this case for further development, to include scheduling the Veteran for a VA examination. In May 2017, the Department of Veterans Affairs Appeals Management Center increased the Veteran's left lower extremity radiculopathy, which was 10 percent disabling, to 20 percent effective April 12, 2017. In June 2017, the Department of Veterans Affairs Appeals Management Center increased the Veteran's back disability to 20 percent effective June 20, 2011. In September 2014, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's forward flexion was not found to be limited to 30 degrees or less. 2. The Veteran has not experienced incapacitating episodes requiring medically prescribed bed rest during this appeal period. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5243-5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA satisfied the duties to notify and assist in this appeal and neither the Veteran nor his representative have asserted any error as to these duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). In July 2011, December 2012, and April 2017, the Veteran was provided VA examinations regarding his claim of entitlement to a rating in excess of 20 percent for lumbar spine osteoarthritis with degenerative disc disease (DDD) at L4/L5 and L5/S1. The Board finds these examinations to be adequate upon which to adjudicate the merits of this appeal. As previously noted, the Veteran was provided an opportunity to set forth his contentions before a Veterans Law Judges in September 2014. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran has not raised any deficiency with the hearing and the Board does not otherwise find any prejudicial error. See Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). II. Increased Rating The Veteran has asserted that the symptoms of his back disability are worse than those which are contemplated by the currently assigned ratings. The Veteran expressed that he is in pain 24 hours a day due to his sciatic nerve and spine disability. See Board hearing transcript at 3. The Veteran testified that his symptoms are worse than before and that he cannot stand up in one position for more than 5 to 10 minutes, sit for a long time, and walk more than a couple of blocks without the need to stop and sit down. Id. The Veteran applied for an increased rating in June 2011. Currently, a 20 percent rating is in effect from June 20, 2011, the date VA received the claim for increased compensation from the Veteran. The Veteran's lumbar spine osteoarthritis with degenerative disc disease is currently rated under Diagnostic Codes 5243-5242. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The general rating formula provides for the following disability ratings for diseases or injuries of the spine, 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. It applies to Diagnostic Codes 5235 to 5243 unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For purposes of this case, the Board notes that under the general rating formula for diseases and injuries of the spine, ratings are assigned, in pertinent part, as follows: 40 percent if forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for disability with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In order for the Veteran to obtain a higher schedular rating under the general rating formula, the Veteran's disability would have to manifest in forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the thoracolumbar spine. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. At a July 2011 VA examination, the Veteran reported an increase in low back pain. He stated that pain is constant but it does not radiate. He reported weakness, stiffness, fatigue, and lack of endurance. He also reported experiencing flare -ups once a week that requires him to lie down. He stated that his walking is limited to 10 to 15 minutes due to his back and knee pain, his sitting is limited to 15 minutes due to his back pain, and his standing is limited to 10 minutes due to his back pain. The following ranges of motion for the Veteran's lumbar spine were provided: flexion was 50 degrees without pain and 80 degrees with pain, extension was 20 degrees without pain and 25 degrees with pain, left lateral flexion was 30 degrees without pain and 40 degrees with pain (normal 30), right lateral flexion was 30 degrees without pain and 40 degrees with pain (normal 30), left lateral rotation was 50 degrees without pain (normal 30), and right lateral rotation was 50 degrees without pain (normal 30). The combined range of motion was 225 degrees, to include symptoms such as pain. The examiner expressed that there were no significant change in active range of motion following repeat testing (3x) against resistance and therefore no additional loss of range of motion is recommended for the thoracolumbar spine due to painful motion, weakness, impaired endurance, incoordination, or instability. The VA examiner also noted that there was no decrease in the usual lumbar lordosis, no scoliosis, and no kyphosis. The examiner stated that there was tenderness over the right lumbar musculature with mild muscle spasm to palpation. The examiner diagnosed the Veteran was lumbar spine degenerative disc disease at L4/L5 and L5/S1 with no evidence of lumbosacral radiculopathy. The VA examiner noted that the Veteran has not experienced incapacitating episodes requiring a physician to order bedrest within the past 12 months. At a December 2012 VA examination, the Veteran reported that he was able to walk 3 blocks or about 5 to 10 minutes before needing to rest and that he is able to sit for an hour before needing to stand. The Veteran also did not report that his flare-ups impact the function of his back. The following ranges of motion for the Veteran's lumbar spine were provided: flexion was 90 degrees with painful motion that began at 60 degrees; extension was 25 degrees with painful motion that began at 25 degrees; left lateral flexion was 30 degrees with no objective evidence of painful motion; right lateral flexion was 25 degrees with painful motion that began at 25 degrees; left lateral rotation was 25 degrees with painful motion that began at 25 degrees; and right lateral rotation was 25 degrees with painful motion that began at 25 degrees. The following ranges of motion for the Veteran's lumbar spine after repetitive-use testing were provided: flexion was 90 degrees, extension was 20 degrees, left lateral flexion was 30 degrees, right lateral flexion was 25 degrees, left lateral rotation was 25, and right lateral rotation was 30 degrees. The examiner noted that the Veteran did not have additional limitation in range of motion for his thoracolumbar spine after repetitive-use testing. However, the examiner noted that the Veteran did have functional loss and/or functional impairment. The Veteran had less movement than normal, excess fatigability, pain on movement, as well as interference with sitting, standing and or weight-bearing after repetitive-use testing. The Veteran's sensation to light touch was normal for upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The Veteran's straight leg raising test was negative for the right leg and positive for the left leg. There was evidence of radicular pain due to radiculopathy. There was mild intermittent pain of the left lower extremity as well as moderate paresthesias. There was no intermittent pain, paresthesias, or numbness of the right lower extremity. The examiner reported a mild level of severity for the Veteran's left lower extremity radiculopathy. The examiner noted that the Veteran does not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition such as bowel or bladder problems. The examiner reported that the Veteran has intervertebral disc syndrome with no incapacitating episodes in the past year. The examiner expressed that the Veteran had pain behaviors with all extended movements but not with getting on the high exam table independently or removing his boots and jacket. The examiner also stated that the Veteran's absence of the right ankle deep tendon reflexes was due to the Veteran's service connected degenerative disc disease. In a March 2013 VA examination clarification report, the December 2012 VA examiner stated that there is no neurologic diagnosis for the right lower extremity. At an April 2017 VA examination, the Veteran reported that his condition has gotten worse. The Veteran reported constant flare-ups that last all day when waking up and moving around as well as while sleeping and taking long road trips. The Veteran reported functional impairment. The Veteran expressed that he can only do minor house chores but when his back gives out, he has to sit down until the pain subsides, which usually takes about 20 minutes until being functional. The following ranges of motion for the Veteran's lumbar spine were provided: forward flexion was 70 degrees; extension was 15 degrees; left lateral flexion was 25; right lateral flexion was 20 degrees; left lateral rotation was 30 degrees; and right lateral rotation was 30 degrees. The Veteran was able to perform repetitive use testing and it was noted that there was no additional loss of function or range of motion after the three repetitions. The examiner noted that the Veteran's range of motion contributes to his functional loss. The examiner reported that the Veteran's pain also causes functional loss and that there's evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. Pain and lack of endurance limits the Veteran's functional ability. The examiner noted that the Veteran does not have muscle spasm. It was noted that the Veteran has additional contributing factors of his disability which include instability of station, disturbance of locomotion, and interference with sitting and standing. There is no muscle atrophy. The Veteran's straight leg raising test was negative for the right leg and positive for the left leg. The Veteran has moderate constant pain, severe intermittent pain, moderate paresthesias, and moderate numbness of his left lower extremity due to his radiculopathy. The Veteran has no intermittent pain, paresthesias or numbness of the right lower extremity. The examiner noted that the Veteran's left lower extremity radiculopathy was moderate in severity. The Veteran does not have right lower extremity radiculopathy. There is no ankyloses of the spine or other neurological abnormalities such as bowel or bladder problems. The examiner reported that the Veteran has not had any episodes of acute signs and symptoms due to his intervertebral disc syndrome that resulted in bed rest in the past year. A review of the record shows that the Veteran receives VA treatment for various disabilities, to include his back disability. A review of the treatment notes of record show that the Veteran generally reports pain, increased pain with prolonged sitting and prolonged standing, and the use of pain killers and physical therapy for treatment. There is no other evidence of record in the VA Medical Center treatment notes indicating that the Veteran has limitation of motion that is more severe than that noted in the various VA examination reports of record. A September 2012 Denver Health Medical Center note reveals that the Veteran reported back pain and sciatic pain with left lower extremity numbness from knee to toes twice a week. A March 2014 VA outpatient note showed that the Veteran reported that his sciatica has been bad after cleaning up his house. An April 8, 2014 VA telephone note revealed that the Veteran reported that he is in a lot of pain all the time. He stated that his sciatic nerve and spine hurts 24 hours a day. He stated that the pain is excruciating and he cannot sleep at night. He reported the he can only stand for 10 minutes at a time and then he has to sit and rest. An April 22, 2014 VA telephone note reported that the Veteran was kneeling down to tuck some wires under the carpet and when he went to stand up he had terrible pain. The Veteran stated that he has known back problems and that it usually will get better but his pain seems to be getting worse. The Veteran denied loss of bladder or leg pain. He reported pain going down his left leg to his knee and numbness in the foot. In a July 2015 VA telephone encounter note, the Veteran stated that his spinal disease is terrible and getting worse. He reported numbness and tingling in the legs for years and radiation down left legs to toes. In a September 2015 VA treatment note, the physician noted that the Veteran's lumbar radiculopathy discomfort remains the same without worsening. Given the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent. While the service-connected low back disability results in pain and some loss of range of motion, there is no indication that the Veteran's spine is ankylosed. None of the three VA examinations nor treatment records indicated that the Veteran's forward flexion was limited to 30 degrees or less. The most recent VA examination in 2017 showed forward flexion was 70 degrees. Given these and other findings of record, the Board cannot say that the disability more nearly approximates one manifested by flexion limited to 30 degrees or less. The General Rating Formula also provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Other than the Veteran's service-connected left lower extremity radiculopathy, no neurological abnormalities related to such as right lower extremity radiculopathy or bowel or bladder problems were found on the December 2012 and April 2017 VA examination. The most recent VA examination in 2017 showed that the Veteran's straight leg raising test was negative for the right leg and the Veteran had no intermittent pain, paresthesias or numbness of the right lower extremity. The examiner also reported that the Veteran does not have right lower extremity radiculopathy. In addition, the examiner reported that there were no other neurological abnormalities such as bowel or bladder problems. Thus, the medical evidence of record does not show associated objective neurologic abnormalities of right lower extremity radiculopathy, or bowel or bladder impairment so that additional separate neurological disability rating, as it applies to his service-connected lumbar spine disability is warranted. With regard to the Veteran's radiculopathy of the left lower extremity, the Board notes that a 10 percent rating is in effect from August 29, 2012 to April 11, 2017 and a 20 percent rating is in effect from April 12, 2017 under Diagnostic Code 8520. 38 C.F.R. § 4.124a, Diagnostic Code 8520 provides the rating criteria for evaluation of paralysis of the sciatic nerve. Under this provision, moderate incomplete paralysis warrants a 20 percent disability evaluation; moderately severe incomplete paralysis warrants a 40 percent evaluation; and, severe, with marked muscular atrophy, incomplete paralysis warrants a 60 percent disability evaluation. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, with flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diagnostic Codes 8510 through 8540 (2017). Based on review of the evidence of record, the Board finds that the preponderance of evidence does not support a rating in excess of 10 percent for radiculopathy of the left lower extremity for the period from August 29, 2012; and, a rating in excess of 20 percent for radiculopathy of the left lower extremity for the period from April 12, 2017. The Board finds the preponderance of the evidence is against an assignment of a rating in excess of 10 percent for the Veteran's radiculopathy of the left lower extremity prior to April 12, 2017. In so finding, the Board notes that, on the occasion of the December 2012 VA examination, the examiner reported only mild severity of radiculopathy. The examiner noted that the Veteran's symptoms for his radiculopathy did not include constant pain or numbness. The Veteran experienced mild intermittent pain and moderate paresthesias. Sensory examination was reported as normal and no muscle atrophy was found. The Veteran also had normal muscle strength testing for his left great toe extension. In addition, a September 2015 VA treatment note, the physician noted that the Veteran's lumbar radiculopathy discomfort remains the same without worsening. Considering the pertinent evidence in light of the above, the Board finds that the medical evidence reflects that, prior to April 12, 2017, the Veteran's radiculopathy in the left lower extremity has caused disability comparable to no more than mild incomplete paralysis of the sciatic nerve, manifested by some reporting of numbness and tingling, but with no loss of muscle mass, strength, or function attributed to this service-connected disability. As noted, where, as here, the involvement is wholly sensory; the rating should be for the mild, or, at most, the moderate degree. The Veteran is competent to report his symptoms however despite the Veteran's symptoms and findings noted above, the overall disability picture is not found to be comparable to moderate incomplete paralysis of the sciatic nerve. After a careful review of the record, the Board finds that the Veteran's radiculopathy in the left lower extremity does not warrant an evaluation in excess of 20 percent after April 12, 2017. The Board has based its conclusions on the medical evidence outlined above, which shows symptoms productive of no more than moderate incomplete paralysis of the sciatic nerve in the left lower extremity, which includes findings of moderate numbness in the left lower extremity, moderate paresthesias, moderate constant pain, and severe intermittent pain. On examination in April 2017, the examiner noted normal muscle strength, muscle atrophy, decreased sensation in the left lower leg/ankle, and toes. The examiner noted involvement of L4/L5/S1/S2/S3 sciatic nerve, moderate on the left. In light of the foregoing, the Board finds that the Veteran's symptoms of a neurological manifestation of the left lower extremity more nearly approximate the criteria for a 20 percent rating under Diagnostic Code 8520, for moderate incomplete paralysis. In the absence of findings which indicate that the neurological manifestation is productive of moderately severe incomplete paralysis, there is no schedular basis for a disability rating in excess of 20 percent. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. All evidence considered, the record as a whole does not show persistent symptoms that equal or more nearly approximate the criteria for an evaluation in excess of 20 percent. In reaching the above determination, the Board considered, along with the schedular criteria, evidence of functional loss due to flare ups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca, 8 Vet. App. at 206-07. The evidence documents the Veteran's reports of back pain that has increased since its onset and limits his movements. The July 2011 examiner concluded that there was no significant change in active range of motion following repeat testing against resistance and so no additional loss of range of motion is recommended for the Veteran's spine condition due to painful motion, weakness, impaired endurance, incoordination, or instability. The December 2012 examiner noted that there was no additional limitation in range of motion of the spine but there was presence of functional loss and or functional impairment after repetitive use with contributing factors of less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and weight-bearing. Finally, the April 2017 examiner noted that there was no additional loss of function or range of motion after three repetitions but the examiner noted that pain, weakness, fatigability, or incoordination significantly limits the Veteran's functional ability with repeated use over a period of time. The contributing factors that case the functional loss include pain and lack of endurance. Taking all of the evidence of record into consideration, the Board acknowledges that the Veteran's spinal disability is manifested by some functional limitation due to pain and lack of endurance, as noted during the April 2017 VA examination. Although the Veteran had pain on motion, his forward flexion consistently was noted to be 50 degrees or greater with pain. Accordingly, even accounting for any functional limitations of his lumbar spine, the Veteran's range of motion still exceeds that which is required for a disability rating in excess of 20 percent. The Board finds that the assigned rating contemplates any additional impairment due to pain. Essentially, there is no showing of any other functional impairment which would warrant a higher rating for this report of pain. 38 C.F.R. §§ 4.7, 4.20, 4.45, 4.59, 4.71a; see also Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (holding that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based on loss of motion). Consideration has been given to assigning a rating under Diagnostic Code 5243, for degenerative disc disease based on incapacitating episodes rather than limitation of motion. An "incapacitating episode" is defined "as a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician." There is no indication that the Veteran experiences incapacitating episodes requiring medically prescribed bed rest. Therefore, a rating based on incapacitating episodes is not warranted. 38 C.F.R. § 4.71a (2017). The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his service-connected back disability has worsened. The rating criteria are very specific in terms of the symptoms contemplated by each disability rating. Moreover, the objective clinical findings do not support a higher evaluation for the reasons stated above. The preponderance of the evidence is against the Veteran's claim and an increased rating in excess of 20 percent for lumbar spine osteoarthritis with degenerative disc disease (DDD) at L4/L5 and L5/S1 must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER A rating in excess of 20 percent for lumbar spine osteoarthritis with degenerative disc disease (DDD) at L4/L5 and L5/S1 is denied. REMAND TDIU Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Here, the Veteran has the following service connected disabilities: Lumbar spine osteoarthritis with degenerative disc disease at L4/L5 and L5/S1, rated as 20 percent disabling effective June 20, 2011, as well as with a 10 percent rating from July 22, 2009; left lower extremity radiculopathy associated with lumbar spine osteoarthritis with degenerative disc disease at L4/L5 and L5/S, rated as 20 percent disabling effective April 12, 2017 as well as with a 10 percent rating from August 29, 2012; and left knee degenerative joint disease, rated as 10 percent disabling from August 29, 2012. As such, the Veteran has not met the schedular criteria for consideration for the assignment of TDIU at any point during the course of his appeal. 38 C.F.R. § 4.16(a). However, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). For a Veteran to prevail on a claim for a TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with equal rating of disability. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran contends that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran was afforded a VA examination in December 2012. The Veteran reported that he has not worked since 2007 due to low back and bilateral knee pain. The examiner opined that the Veteran's back condition impacts his ability to work. The examiner stated that the Veteran has limited lifting tolerance and now uses a cane with limited standing tolerance. The examiner also opined that the Veteran's knee and lower leg condition impact his ability to work by causing limited standing and lifting tolerance. The examiner also noted that the Veteran has functional impairment after repetitive use of his back condition. The impairment includes interference with sitting, standing, and/or weight bearing. The Veteran was afforded a back VA examination in April 2017. The examiner opined that the Veteran is not able to work. The Veteran is not able to walk distances, be on his feet for more than an hour at a time and has significant limitation in his flexion and extension limiting his abilities. The examiner noted that the Veteran's back condition impacts his ability to work. The functional impact is that he cannot lift greater than 25 pounds or more, or lift no more than 10 pounds after repetitive use. The examiner reported that the Veteran cannot bend over and pick anything up from the floor level and that he cannot squat and then rise independently. To push or pull on anything such as a vacuum stresses the Veteran's low back and increases his discomfort. He is able to care for himself with modifications such as slipping on his shoes and using community transportation to get to the grocery store and doctor appointments. Social Security Administration (SSA) records indicate a disability start date of October 2011. The primary diagnosis for the grant of SSA benefits was noted to be disorders of back (discogenic and degenerative). The Administration Law Judge also noted that the Veteran is not capable of performing work that he has done in the past. The Veteran's previous jobs have included being a truck driver, shuttle bus driver, Home Depot worker, and construction worker. Under section 4.16(b) of VA regulations, when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), the RO may submit such case to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) because the authority to grant such a rating is vested specifically in the Director, Compensation and Pension Service. Should the Board find that a case it is reviewing on appeal is worthy of consideration under section 4.16(b), the Board may remand the case to the RO for referral to the Director, Compensation and Pension Service, but the Board may not grant a total rating in the first instance. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (noting that Board may consider whether referral to "appropriate first-line officials" for extra-schedular rating is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Thus, the decision by the RO of whether to refer a case to the Director for extra-schedular consideration is an adjudicative decision subject to review by the Board and the Court. The Board finds that there is evidence that Veteran's service-connected disabilities render the Veteran unable to secure and follow a substantially gainful occupation. Although the Veteran has not met the schedular criteria for consideration for the assignment of TDIU combined, VA's policy is to rate totally disabled all Veterans who are unemployable. In such cases, the rating boards should submit the case to the Director, Compensation Service for extra-schedular consideration. See 38 C.F.R. § 4.16(b). Therefore, the Board remands this claim for the AOJ to refer to the Director, Compensation Service. Accordingly, the case is REMANDED for the following action: 1. After completing any other development deemed appropriate in order to adjudicate the issue of entitlement to a TDIU, refer the issue to the Director, Compensation and Pension Service, for a determination in the first instance as to whether the assignment of a TDIU on an extraschedular basis is warranted. 2. If any claim remains denied issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs