Citation Nr: 0930912 Decision Date: 08/18/09 Archive Date: 08/27/09 DOCKET NO. 97-15 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for lumbosacral strain, currently evaluated as 20 percent disabling. 2. Evaluation of major depressive disorder, currently evaluated as 10 percent disabling. 3. Entitlement to an effective date earlier than January 27, 2004, for the grant of service connection for major depressive disorder. 4. Entitlement to a total rating for compensation on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and Dr. Bash ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The appellant had active service from September 1984 to March 1992. This case initially comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The appellant essentially appeals a January 1997 rating decision which confirmed and continued a 20 percent rating for chronic lumbosacral strain. The appellant also appeals an August 2005 rating decision which granted service connection for major depressive disorder, evaluated as 10 percent disabling, effective January 27, 2004. In March 2003, the Board denied the claim of entitlement to a rating in excess of 20 percent disabling for lumbosacral strain. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2003, the Court vacated the Board's decision and remanded the matter to the Board for readjudication. Subsequently, in June 2004, the Board remanded the case to the RO for additional development in compliance with the Veterans Claims Assistance Act of 2000 (VCAA). A supplemental statement of the case (SSOC) was issued in November 2004. On May 12, 2005, the appellant and Dr. Bash. appeared and offered testimony at a hearing before the undersigned Veterans Law Judge in Washington, D.C. A transcript of that hearing is of record. In September 2005 and October 2006, the Board again remanded the case to the RO for further evidentiary development. The case is once more before the Board for appellate consideration. The issues of entitlement to an increased rating for lumbosacral strain, currently evaluated as 20 percent disabling, and entitlement to a total disability rating based on individual unemployability (TDIU) are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Major depressive disorder is manifested by sleep disturbance, fatigue, depressed mood, irritability, and difficulty making decisions. 2. The appellant's initial claim for service connection for depression was received at the RO on January 27, 2004. 3. The record does not establish that there was an informal claim, formal claim, or written intent to file a claim for service connection for depression prior to January 27, 2004. CONCLUSIONS OF LAW 1. Major depressive disorder is 70 percent disabling. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2008). 2. The criteria for assignment of an effective date prior to January 27, 2004, for the grant of service connection for major depressive disorder have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2008), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with the notice required under VCAA in February 2004 and August 2004. The appellant is challenging the disability evaluation and effective date assigned following the grant of service connection for major depressive disorder. In Dingess, the U.S. Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, supra. at 490-191. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2008). In connection with the current appeal, appropriate examinations have been conducted and available service records have been obtained. We also note that the VA examinations were adequate. The examiners reviewed the history, established clinical findings and presented reasons for the opinions. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Factual Findings The evidence shows that in August 1999 the appellant reported depression and was prescribed Prozac. A GAF score of 56 was assigned. In September 1999, the appellant was seen for problems of frustration, depression and anxiety stemming from his inability to maintain and/or get training for employment. Adjustment disorder with depressive and anxious features was diagnosed. A GAF score of 60 was assigned. A history of depression was noted in December 2002. The appellant reported feeling depressed in July 2003. He reported that he tried Prozac and it helped his depression. Depressive disorder secondary to physical condition chronic back pain was diagnosed. It was noted that the appellant was last seen at the mental health clinic in August 1999 and that he was being treated for depression related to chronic back problems. The appellant reported that he returned to the mental health clinic because he was not sleeping well, he felt tired, fatigued and depressed most of the time. The appellant's wife reported that the appellant was moody and irritable with a low tolerance for stress. The appellant reported being employed as a truck driver at that time. The appellant filed a claim for service connection for depression on January 27, 2004. In a November 2004 rating decision, the appellant's claim for service connection for depression was denied. In May 2005, the appellant reported that his depression was brought about by his disabilities and that such has limited his employment opportunities. He reported being laid off from jobs because of failure to mention his disabilities. The appellant was afforded a VA compensation and pension examination in July 2005. During this examination, the appellant reported that the frequency and severity of his depression secondary to his medical condition has increased with no remissions. Examination revealed that the appellant was oriented, alert, cooperative and that his speech was coherent and thinking logical. His memory appeared to be somewhat below normal limits. It was noted that the appellant was depressed due to not being able to get work and his financial straits. Major depressive disorder secondary to chronic pain and service connected medical condition was diagnosed. The examiner reported that the appellant is definitely impaired due to his service connected medical condition and is suffering depression directly related to these conditions. A GAF score of 45 was assigned. In August 2005, the appellant was granted service connection for major depressive disorder evaluated as 10 percent disabling. The appellant was assigned an effective date of January 27, 2004, the date his claim was received by the RO. In September 2005, a GAF score of 55 was assigned and mood disorder secondary to physical condition was diagnosed. In December 2005, the appellant reported significant depression with suicidal rumination. He denied intent as it would harm his wife and daughter. He endorsed feelings of helplessness and hopelessness, sleep problems, reduced energy and appetite, nervousness, irritability, and low frustration tolerance. In August 2006, it was noted that the appellant felt like a prisoner in a damaged body, tired all the time, irritable with a low frustration tolerance, angry and frustrated. He was alert, oriented, and well groomed. His mood was discouraged but he was not without hope. Mood disorder secondary to chronic back pain was diagnosed. In an August 2006 neuropsychological evaluation, the appellant reported a history of post traumatic depression following service and that he has been treated with Prozac since 1994. The appellant reported that he was employed as a driver, and that he lived with his wife of 18 years and his 17 year old daughter. Examination revealed that the appellant had clear speech, and that he was fully oriented with normal form and content. His mood and affect was depressed, and he voiced feelings of frustration pertaining to his pain and disability. The appellant's Beck's Depression Inventory score of 31 indicated moderately severe underlying emotional depression. The appellant acknowledged persistent feelings of sadness since his accident. It was noted that he was more emotional and upset on a regular basis. The appellant was noted to be dissatisfied, pessimistic, angry and irritable. He reported difficulty making decisions, sleep difficulty, fatigue, decreased appetite and worry about his finances and his ability to provide for his family. A GAF score of 55 was assigned and adjustment disorder with depressed mood was diagnosed. The examiner noted that the appellant's depression undoubtedly interferes with his energy level and contributes to his loss of interest in pleasurable activities and diminished sexual drive. In November 2006, it was noted that the appellant continued to have significant memory problems and that he was worried about finances. In December 2006, the appellant reported that depression affects him day to day from living, to family relationships and socializing. Social Security Administration (SSA) records show that the appellant had an additional back injury in December 2005 and that in August 2006 a diagnosis was given of mood disorder secondary to chronic back pain. It was noted that the appellant restricted activities to avoid pain and that he was socially isolated. Major depressive disorder with mood described as tired, frustrated, and angry was noted. Memory impaired and unable to sustain a full work week on a steady and reliable basis was also noted. According to SSA records, the appellant reported that his depression has caused him to react in anger and that he stays in his home because he gets very anxious when he goes outside. He reported thoughts of suicide and being very emotional. The appellant also reported difficulty concentrating and remembering instructions. The appellant was examined in January 2007 for depression and chronic pain. The appellant reported that depression has been a problem from him for 13 years and that he was diagnosed in 1999. The appellant reported depressive episodes, weight loss, insomnia, fatigue and diminished concentration, sleep troubles, suicidal thoughts, and loss of interest in some activities. The appellant was oriented, open and cooperative. His memory and judgment were moderately impaired, and concentration and abstract thinking were within normal limits. Major depressive disorder, recurrent, moderate was diagnosed. A GAF score of 50-was assigned. The examiner noted that the appellant's prognosis appeared good and that his memory functioning had improved since the accident. In February 2007, it was reported that the appellant was unable to sustain concentration, pace necessary to complete regular work schedule without interference from psychological/emotional symptoms. In April 2007 and July 2007, it was noted that the appellant still felt like a prisoner in a damaged body, tired all the time, irritable with a low frustration tolerance, angry and frustrated. He reported that he has worked hard since he was a teenager but now feels very unproductive and useless. He was alert, oriented, somewhat anxious, and well-groomed. Mood disorder secondary to chronic back pain was diagnosed. In May 2007, the appellant stated that he was totally, physically and mentally disabled and unemployable. The appellant was afforded a VA compensation and pension examination in June 2007. During this examination, the appellant was noted to be suicidal without a plan. Feelings of hopelessness and worthlessness were reported. The appellant was diagnosed with PTSD and severe major depression recurrent without psychotic features. A GAF score of 45 was assigned. The appellant was hospitalized from October 2007 to November 2007 with a diagnosis of PTSD. His discharge summary noted a history of major depression. The appellant described depression with anhedonia, insomnia, poor energy and cognitive function, guilt and a poor sense of worth. He denied any serious depression at that time. A GAF score of 47 was assigned In May 2008, it was noted that the appellant had chronic mild depression without suicidal or homicidal ideations and that his condition mostly revolved around chronic life stressors including lack of transportation, financial, struggle with the VA for service connection, and mobility limitations from medical issues. It was reported that he isolates at home and cannot get out due to transport difficulties. Legal Criteria and Analysis Evaluation of major depressive disorder Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2008). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2008). Where an award of service connection for a disability has been granted, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2008). A disability may require re- evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2008). We conclude that the disability has not significantly changed and a uniform rating is warranted. The appellant's major depressive disorder is evaluated pursuant 38 C.F.R. § 4.130 Diagnostic Code 9434, and is subject to the criteria listed under the General Rating Formula for Mental Disorders. The General Rating Formula provides a 10 percent evaluation for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130 (2008). The rating formula provides a 30 percent evaluation when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is indicated where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self of others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. In assessing the evidence of record, it is important to note that the GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 31 to 40 is assigned where there is "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). Id. A score of 41-50 is assigned where there are, "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 51-60 is assigned where there are moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflict with peers or co- workers). Id. A score of 61-70 is indicated where there are "Some mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Id. The appellant has appealed the denial for an evaluation higher than 10 percent disabling for major depressive disorder. This rating contemplates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Based on a review of the evidence, the Board finds that a 70 percent evaluation for major depressive disorder is warranted. This rating contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In this regard, the Board notes that the evidence shows the appellant has major depressive disorder manifested by suicidal ideation, diminished concentration, irritability, sleep disturbance, difficulty making decisions, memory problems, and fatigue. The July 2005 VA examiner reported that the appellant is definitely impaired due to his service connected medical condition and is suffering depression directly related to these conditions. The appellant reported in December 2006 that depression affects him day to day from living, to family relationships and socializing. SSA records show that the appellant has restricted activities to avoid pain and that he is socially isolated. According to SSA records, the appellant reported that his depression has caused him to react in anger and that he stays in his home because he gets very anxious when he goes outside. He reported thoughts of suicide and being very emotional. The appellant also reported difficulty concentrating and remembering instructions. In February 2007, it was reported that the appellant was unable to sustain concentration, pace necessary to complete regular work schedule without interference from psychological/emotional symptoms. The Board notes that a 70 percent evaluation is also consistent with the appellant's GAF scores. Although the appellant has been assigned GAF scores of 55, 56 and 60, he also has been assigned scores of 45, 47 and 50. A GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). The Board finds that these GAF scores are consistent with the appellant's treatment records and with the 70 percent evaluation. We conclude that the consistent findings of the examiners, to include a period of hospitalization, provide a more accurate assessment of the degree of the appellant's impairment. The Board is fully aware that the appellant has had some employment, but the nature and frequency of such employment have not been adequately developed. The Board finds that the appellant's major depressive disorder more nearly approximates the criteria for a 70 percent evaluation. However, the Board notes that an evaluation in excess of 70 percent disabling is not warranted because the evidence does not show total occupational and social impairment. The appellant is married and living with his wife and daughter. The appellant's most recent examination in October 2008 showed that suicidal and homicidal ideations were absent. Examination revealed there were no hallucinations and obsessional rituals. Thought processes were appropriate and judgment was not impaired but memory was noted to be mildly impaired. The above does not justify an evaluation higher than 70 percent disabling. The Board further observes that there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation) or frequent periods of hospitalization related to the service-connected disability at issue, that would take the appellant's case outside the norm so as to warrant an extraschedular rating. The record shows that the appellant once required hospitalized treatment but there is no showing of frequent hospitalizations for his disability. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Entitlement to an effective date earlier than January 27, 2004 for the grant of service connection for major depressive disorder Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a) (West 2002). The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1) (West 2002). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400 (2008). A specific claim in the form prescribed by the Secretary of the VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). When an application for disability compensation is received within one year of the date of the veteran's discharge or release from service, the effective date of such award shall be the day following the veteran's release. 38 U.S.C.A. § 5110(b)(1) (West 2002). The appellant has appealed the denial of an effective date earlier than January 27, 2004, for grant of service connection for major depressive disorder. After review of the evidence, the Board finds against the appellant's claim. Here, the evidence shows that the appellant filed a claim for depression January 27, 2004. The appellant was granted service connection for major depressive disorder in an August 2005 rating decision. He was assigned an effective date of January 27, 2004, the date his claim was received by the RO. Based on the evidence, the Board finds that the effective date of the award of service connection for major depressive disorder is January 27, 2004, the date of the appellant's claim for service connection. The Board notes that claims submitted prior to this date did not include a mention of depression. The record does not establish that there was an informal claim, formal claim, or written intent to file a claim for service connection for depression prior to January 27, 2004. As noted above, while VA must interpret a claimant's submissions broadly, it is not required to conjure up issues not raised by a claimant. Review of the record reveals no documents that can be construed as a claim, informal claim or an intent to file a claim of entitlement to service connection for depression prior to January 27, 2004. We have also considered whether an earlier effective date is warranted based on the grant of this disability on a secondary basis. Section 3.310 provides that when service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. However, a requirement that a secondary condition be considered a part of an original condition does not establish that the original condition and the secondary condition must receive identical effective dates. Indeed, a per se rule requiring identical effective dates for primary and secondary conditions would be illogical, given that secondary conditions may not arise until years after the onset of the original condition. See Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008). We also note that 38 C.F.R. § 3.157 is not applicable since the Court has determined that such regulation is applicable only if the condition at issue is already service-connected. The Board has also considered the pleading of April 16, 2007. In that document, it was reported that a 2003 clinical note includes a diagnosis of depression due to the service- connected back disorder. This may be viewed as an argument that the effective date should be based upon the clinical record. The Court has noted that the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek secondary service connection for the psychiatric condition. See, e.g., KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1993); cf. 38 C.F.R. § 3.157(b) (1997) (permitting certain medical reports to be accepted as an "informal claim for increased benefits or an informal claim to reopen"). While the Board must interpret the appellant's submissions broadly, the Board is not required to conjure up issues that were not raised by the appellant. The appellant must have asserted the claim expressly or impliedly. Brannon v. West, 12 Vet. App. 32 (1998). Accordingly, an effective date earlier than January 27, 2004, for the award of service connection for major depressive disorder is denied. Lastly, the Board is fully aware of the dissent in Ross v. Peake, 21 Vet. App. 534 (2008) and that part of the language contained in section 3.157 has not been fully addressed by the Court. However, a dissent is not a basis to ignore the current state of the case law. At this juncture, the case law is settled. ORDER An evaluation of 70 percent disabling for major depressive disorder is granted, subject to the controlling regulations applicable to the payment of monetary benefits. An effective date earlier than January 27, 2004, for the award of service connection for major depressive disorder is denied. REMAND The appellant has appealed the denial for an increased rating for lumbosacral strain, currently rated as 20 percent disabling. This appeal stems from a January 1997 rating decision which denied an increased rating for lumbosacral strain. The Board remanded the appellant's lumbosacral strain claim to the RO in June 2004 for a VA examination to determine the severity of the appellant's low back disability. A compensation and pension examination was not conducted. In September 2005, we noted that there was insufficient evidence to evaluate the appellant's low back disability under the revised criteria and again remanded this issue for an examination. Since that time, the appellant has been involved in a December 2005 accident which involved injury to the back. The appellant was afforded a VA compensation and pension examination in April 2006. However, the examiner noted that range of motion was not performed because the appellant stated that the spine was too painful for range of motion testing. It was noted that the appellant had a low back brace connected with a metallic bar to a chest brace. L-S spine not examined was noted. As the Board previously noted in the September 2005 remand, the schedular criteria for rating back disabilities changed during the pendency of the appellant's appeal. The new criteria are effective September 26, 2003. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Board finds that the record is insufficient to evaluate the appellant's disability under the new rating criteria. Therefore, a VA compensation and pension examination is necessary before this issue can be decided. In view of VA's duty to assist obligations, which include the duty to obtain a VA examination or opinion when necessary to decide a claim, and based upon guidance from the Court, remand for the purpose of obtaining a VA examination(s) is required. Regarding the issue of TDIU, an evaluation of 70 percent disabling for major depressive disorder has been granted. The Board notes that the appellant reported in May 2007 that he was totally, physically and mentally disabled and unemployable. The law provides that a TDIU may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). In light of the above, the RO should develop and adjudicate the claim for TDIU. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination to determine the severity of the appellant's lumbosacral strain. The examiner should best approximate the appellant's range of motion in degrees and if range of motion cannot be completed the examiner should a make a notation of whether there is favorable or unfavorable ankylosis. If the examiner cannot conduct the examination that must be noted. Regardless of whether an examination is conducted, the examiner should attempt to distinguish the service connected manifestations from the nonservice connected manifestations. 2. The RO must ensure that all VCAA notice obligations are satisfied concerning the claim for TDIU and adjudicate the TDIU claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs