Citation Nr: 1013167	
Decision Date: 04/07/10    Archive Date: 04/14/10

DOCKET NO.  09-00 217	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUES

1.  Entitlement to an increased disability rating for 
degenerative joint disease, lumbar spine, currently 
evaluated as 40 percent disabling.

2.  Entitlement to a total disability evaluation based on 
individual unemployability due to service-connected 
disabilities (TDIU).


ATTORNEY FOR THE BOARD

F. Yankey, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1978 to July 
1996.  This case comes before the Board of Veterans' Appeals 
(Board) on appeal of an October 2007 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Winston-Salem, North Carolina.  

The Board notes that in December 2009, prior to 
certification of the appeal to the Board, the North Carolina 
Division of Veterans Affairs revoked its representation of 
the Veteran.

The issue of entitlement to a TDIU is addressed in the 
REMAND portion of the decision below and is REMANDED to the 
RO via the Appeals Management Center (AMC), in Washington, 
DC.


FINDING OF FACT

The Veteran's low back disability is manifested by forward 
flexion of the lumbar spine to 20 degrees with consideration 
of functional factors; there is no evidence of ankylosis.  


CONCLUSION OF LAW

The criteria for a rating in excess of 40 percent for 
degenerative joint disease, lumbar spine have not been met.  
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R §§ 4.7, 4.71a, 
Diagnostic Code 5237, 5242, 5243 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 
2002 & Supp. 2009) defined VA's duty to assist a Veteran in 
the development of a claim.  VA regulations for the 
implementation of the VCAA were codified as amended at 38 
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).

Under the VCAA, VA 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.  Pelegrini 
v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), 
see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims 
(Court) has also held that the VCAA notice requirements of 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 
five elements of a service connection claim.  Those five 
elements include: 1) Veteran status; 2) existence of a 
disability; 3) a connection between the Veteran's service 
and the disability; 4) degree of disability; and 5) 
effective date of the disability.  Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  

The Court had held that at a minimum, adequate VCAA notice 
in an increased rating claim required that VA notify the 
claimant that, to substantiate such a claim: (1) the 
claimant must provide, or ask VA to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity 
of the disability and the effect that worsening has on the 
claimant's employment and daily life; (2) if the diagnostic 
code under which the claimant is rated contains criteria 
necessary for entitlement to a higher disability rating that 
would not be satisfied by the claimant demonstrating a 
noticeable worsening or increase in severity of the 
disability and the effect of that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant; 
(3) the claimant must be notified that, should an increase 
in disability be found, a disability rating will be 
determined by applying relevant diagnostic codes; and (4) 
the notice must also provide examples of the types of 
medical and lay evidence that the claimant may submit (or 
ask VA to obtain) that are relevant to establishing 
entitlement to increased compensation.  Vazques-Flores v. 
Peake, 22 Vet. App. 37 (2008).

The Federal Circuit has overturned the requirement that VA 
provide notice that the claim could be substantiated by 
evidence of a disability's impact on daily life and that VA 
provide notice with regard to potential diagnostic code 
criteria (element 2). Vazquez-Flores v. Shinseki, No. 08- 
7150 (Fed. Cir. Sep. 4, 2009).
In a June 2007 letter, issued prior to the initial 
adjudication of the claim, the RO or AMC notified the 
Veteran of the evidence needed to substantiate his claim for 
an increased rating.  The letter told the Veteran that he 
could substantiate the claim with evidence that the 
disability had worsened.  It satisfied the second and third 
elements of the duty to notify by informing the Veteran that 
VA would try to obtain medical records, employment records, 
or records held by other Federal agencies, but that he was 
nevertheless responsible for providing any necessary 
releases and enough information about the records to enable 
VA to request them from the person or agency that had them.  

The Veteran has substantiated his status as a Veteran.  He 
was notified of all elements of the Dingess notice, and the 
surviving elements of Vazquez-Flores notice, including the 
disability-rating and effective-date elements of the claims, 
by the June 2007 and November 2008 letters.

VCAA notice should be provided to a claimant before the 
initial unfavorable decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004); see also Disabled 
American Veterans v. Secretary of Veterans Affairs, 327 F.3d 
1339 (Fed. Cir. 2003).  However, VA's notice requirements 
may, nonetheless, be satisfied if any errors in the timing 
or content of such notice are not prejudicial to the 
claimant.  Id.

There was a timing deficiency in that the November 2008 
letter was sent after the initial adjudication of the claim.  
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The 
timing deficiency was cured by readjudication of the claim 
in a supplemental statements of the case issued in December 
2008.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 
2007).

The Duty to Assist

The VCAA also requires VA to make reasonable efforts to help 
a claimant obtain evidence necessary to substantiate his 
claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  
This "duty to assist" contemplates that VA will help a 
claimant obtain records relevant to his claim, whether or 
not the records are in Federal custody, and that VA will 
provide a medical examination or obtain an opinion when 
necessary to make a decision on the claim.  38 C.F.R. § 
3.159(c)(4).

VA has obtained records of treatment reported by the 
Veteran, including service treatment records and VA 
treatment records.  Additionally, the Veteran was provided a 
VA examination in June 2007 for his low back disability.  
Although the examiner did not have access to the claims 
folder, the examination report contained the history and 
findings necessary to rate the disability under the criteria 
contained in the rating schedule.

For the reasons set forth above, the Board finds that VA has 
complied with the VCAA's notification and assistance 
requirements.  The appeal is thus ready to be considered on 
the merits.

Legal Criteria

Disability evaluations are determined by the application of 
VA's Schedule for Rating Disabilities (Rating Schedule), 38 
C.F.R. Part 4 (2009).  The percentage ratings contained in 
the Rating Schedule represent, as far as can be practicably 
determined, the average impairment in earning capacity 
resulting from diseases and injuries incurred or aggravated 
during military service and their residual conditions in 
civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 
(2009).

Each disability must be considered from the point of view of 
the Veteran working or seeking work. 38 C.F.R. § 4.2 (2009).  
Where there is a question as to which of two evaluations 
shall be applied, the higher evaluation will be assigned if 
the disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating will 
be assigned.  38 C.F.R. § 4.7.

In view of the number of atypical instances it is not 
expected, especially with the more fully described grades of 
disabilities, that all cases will show all the findings 
specified.  Findings sufficiently characteristic to identify 
the disease and the disability therefrom, and above all, 
coordination of rating with impairment of function will, 
however, be expected in all instances.  38 C.F.R. § 4.21 
(2009).

Where entitlement to compensation already has been 
established and an increase in the disability rating is at 
issue, it is the present level of disability that is of 
primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 
(1994).  Although a rating specialist is directed to review 
the recorded history of a disability in order to make a more 
accurate evaluation, see 38 C.F.R. § 4.2, the regulations do 
not give past medical reports precedence over current 
findings.  Nevertheless, the Board acknowledges that a 
claimant may experience multiple distinct degrees of 
disability that might result in different levels of 
compensation from the time the increased rating claim was 
filed until a final decision is made.  Hart v. Mansfield, 21 
Vet. App. 505 (2007).  The analysis in the following 
decision is therefore undertaken with consideration of the 
possibility that different ratings may be warranted for 
different time periods.

Under the General Rating Formula for Diseases and 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 the residuals of injury or disease, a 10 
percent evaluation is warranted for disability of the 
thoracolumbar spine when there is forward flexion of the 
thoracolumbar spine greater than 60 degrees but not greater 
than 85 degrees; or, combined range of motion of the 
thoracolumbar spine greater than 120 degrees but not greater 
than 235 degrees; or, muscle spasm, guarding, or localized 
tenderness not resulting in abnormal gait or abnormal spinal 
contour; or, vertebral body fracture with loss of 50 percent 
or more of the height.

A 20 percent evaluation is warranted for disability of the 
thoracolumbar spine when there is forward flexion of the 
thoracolumbar spine greater than 30 degrees but not greater 
than 60 degrees; or, the combined range of motion of the 
thoracolumbar spine not greater than 120 degrees; or, muscle 
spasm or guarding severe enough to result in an abnormal 
gait or abnormal spinal contour such as scoliosis, reversed 
lordosis, or abnormal kyphosis.

A 40 percent evaluation is warranted for disability of the 
thoracolumbar spine when there is forward flexion of the 
thoracolumbar spine to 30 degrees or less, or favorable 
ankylosis of the entire thoracolumbar spine.

Unfavorable ankylosis of the entire thoracolumbar spine is 
evaluated as 50 percent disabling, and unfavorable ankylosis 
of the entire spine is evaluated as 100 percent disabling.  
38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237.

The following notes accompany the General Rating Formula:

Note (1): Evaluate any associated 
objective neurologic abnormalities, 
including, but not limited to, bowel or 
bladder impairment, separately, under an 
appropriate diagnostic code.

Note (2): (See also Plate V.) For VA 
compensation purposes, normal forward 
flexion of the cervical spine is zero to 
45 degrees, extension is zero to 45 
degrees, left and right lateral flexion 
are zero to 45 degrees, and left and 
right lateral rotation are zero to 80 
degrees. Normal forward flexion of the 
thoracolumbar spine is zero to 90 
degrees, extension is zero to 30 
degrees, left and right lateral flexion 
are zero to 30 degrees, and left and 
right lateral rotation are zero to 30 
degrees. The combined range of motion 
refers to the sum of the range of 
forward flexion, extension, left and 
right lateral flexion, and left and 
right rotation. The normal combined 
range of motion of the cervical spine is 
340 degrees and of the thoracolumbar 
spine is 240 degrees. The normal ranges 
of motion for each component of spinal 
motion provided in this note are the 
maximum that can be used for calculation 
of the combined range of motion.

Note (3): In exceptional cases, an 
examiner may state that because of age, 
body habitus, neurologic disease, or 
other factors not the result of disease 
or injury of the spine, the range of 
motion of the spine in a particular 
individual should be considered normal 
for that individual, even though it does 
not conform to the normal range of 
motion stated in Note (2). Provided that 
the examiner supplies an explanation, 
the examiner's assessment that the range 
of motion is normal for that individual 
will be accepted.

Note (4): Round each range of motion 
measurement to the nearest five degrees.

Note (5): For VA compensation purposes, 
unfavorable ankylosis is a condition in 
which the entire cervical spine, the 
entire thoracolumbar spine, or the 
entire spine is fixed in flexion or 
extension, and the ankylosis results in 
one or more of the following: difficulty 
walking because of a limited line of 
vision; restricted opening of the mouth 
and chewing; breathing limited to 
diaphragmatic respiration; 
gastrointestinal symptoms due to 
pressure of the costal margin on the 
abdomen; dyspnea or dysphagia; 
atlantoaxial or cervical subluxation or 
dislocation; or neurologic symptoms due 
to nerve root stretching. Fixation of a 
spinal segment in neutral position (zero 
degrees) always represents favorable 
ankylosis.

Note (6): Separately evaluate disability 
of the thoracolumbar and cervical spine 
segments, except when there is 
unfavorable ankylosis of both segments, 
which will be rated as a single 
disability.  
Id.

Intervertebral disc syndrome is to 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 under 38 C.F.R. § 4.25.

For intervertebral disc syndrome manifested by 
incapacitating episodes having a total duration of at least 
six weeks during the past 12 months, a 60 percent evaluation 
is warranted; with incapacitating episodes having a total 
duration of at least four weeks but less than six weeks 
during the past 12 months, a 40 percent evaluation is 
warranted; and with incapacitating episodes having a total 
duration of at least two weeks but less than four weeks 
during the past 12 months, a 20 percent evaluation is 
warranted.  Note one states that an incapacitating episode 
is a period of acute signs and symptoms due to 
intervertebral disc syndrome that requires bed rest 
prescribed by a physician and treatment by a physician.  See 
38 C.F.R. § 4.71a, Diagnostic Code 5243.

For disabilities evaluated on the basis of limitation of 
motion, VA is required to apply the provisions of 38 C.F.R. 
§§ 4.40, 4.45, pertaining to functional impairment.  The 
Court has instructed that in applying these regulations VA 
should obtain examinations in which the examiner determined 
whether the disability was manifested by weakened movement, 
excess fatigability, incoordination, or pain.  Such inquiry 
is not to be limited to muscles or nerves.  These 
determinations are, if feasible, be expressed in terms of 
the degree of additional range-of-motion loss due to any 
weakened movement, excess fatigability, incoordination, 
flare-ups, or pain.  DeLuca v. Brown, 8 Vet. App. 202 
(1995); see also Johnston v. Brown, 10 Vet.App. 80, 84-5 
(1997); 38 C.F.R. § 4.59 (2006).

Factual Background

In a February 1998 rating decision, the RO granted service 
connection for low back strain, and a 10 percent evaluation 
under Diagnostic Code 5295, effective August 1, 1996.

In a January 1999 rating decision, the RO continued the 10 
percent evaluation for his low back disability.

In June 2007, the Veteran filed a claim for an increased 
rating for his service-connected low back disability, 
contending that the disability had gotten worse since his 
last rating.  

In response to his claim, the Veteran was afforded his most 
current VA examination later in June 2007.  The examiner 
noted the Veteran's complaints of low back pain that had 
been so bad he was not able to bend due to back spasms.  The 
Veteran also reported that he had stopped working in 2006 
due to severe low back pain and that the VA was supposed to 
be issuing him a back brace.  

He indicated that his back pain did not radiate and the 
examiner noted that there was a history of falls, but no 
history of numbness, paresthesias, leg or foot weakness, 
unsteadiness or dizziness.  The Veteran also complained of 
fatigue, decreased motion, stiffness, weakness, spasms and 
pain.  He reported weekly flare-ups which lasted for 1-2 
days, which were precipitated by certain movements and 
alleviated by rest and medication.  

The Veteran did not report any additional limitation of 
motion or other functional impairment during flare-ups.  He 
did not use any devices or aids and he reported that he was 
able to walk 1/4 mile.  As mentioned above, the Veteran 
reported that he had a back spasm so severe in December 2006 
that he fell and had to go to the emergency room due to back 
pain.

On physical examination, there was no spasm, atrophy or 
weakness.  There was evidence of right and left guarding, 
tenderness and pain with motion.  However, there was no 
abnormal gait or abnormal spinal contour.  Muscle tone was 
normal and there was no muscle atrophy.  Motor examination, 
sensory examination and reflex examination were all normal.  
There was no evidence of thoracolumbar spine ankylosis.  

Range of motion testing revealed flexion from 0 to 20 
degrees; extension from 0 to 10 degrees; right lateral 
flexion from 0 to 10 degrees; left lateral flexion from 0 to 
20 degrees; right rotation from 0 to 30 degrees; and left 
rotation from 0 to 20 degrees.  There examiner noted that 
there was no additional limitation of motion on repetitive 
use.  X-ray results revealed joint space narrowing and 
vacuum disc of L5/S1.  

On neurologic testing, the Veteran's motor strength, 
reflexes and sensation were normal.  No neurologic 
abnormality was reported.

The examiner's diagnosis was degenerative joint disease of 
the lumbar spine, and he noted that the disability had a 
severe effect on the Veteran's usual daily activities such 
as chores, shopping, exercise, recreation and traveling, a 
moderate effect on bathing, dressing, toileting and 
grooming, and a mild effect on feeding.  

The examiner also noted that the Veteran indicated that he 
was unemployed due to his retirement in 1996.  Although the 
Veteran was eligible for retirement due to his age or 
duration of work; he reported that he retired from his full-
time job as a driver due to low back pain.

Based on the results of the June 2007 VA examination, the 
Veteran was granted an increased rating of 40 percent for 
degenerative joint disease of the lumbar spine, under 
Diagnostic Code 5237, effective June 6, 2007

In his April 2008 notice of disagreement, the Veteran argued 
that the assigned 40 percent rating did not consider 
functional loss due to pain on movement or the effect of his 
treating medication.

VA outpatient treatment records from the VA Medical Center 
in Fayetteville, North Carolina dated from February 2007 to 
November 2007 show that the Veteran was fitted for lumbar 
supports in June 2007; that he requested a brace for 
occasional back pain in July 2007; and that he was issued a 
cane in October 2007.

Analysis

In order for the Veteran to receive a higher rating under 
the General Rating Formula for Diseases and Injuries of the 
Spine, there must be evidence of unfavorable ankylosis of 
the entire thoracolumbar spine or separately ratable 
neurologic disability.  There was no evidence of ankylosis 
of the thoracolumbar spine on VA examination in June 2007 
and treatment records from the VA Medical Center in 
Fayetteville, North Carolina are also negative for any 
evidence of ankylosis of the thoracolumbar spine.  In 
addition, the Veteran has not reported ankylosis.

The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for 
consideration where the Veteran is in receipt of the highest 
rating based on limitation of motion and a higher rating 
requires ankylosis.  Johnston v. Brown, 10 Vet. App. 80, 84-
5 (1997).  The Veteran does not have ankylosis of the 
thoracolumbar spine, inasmuch as he retains the ability to 
move the spine and it has not been shown to be fixed.  There 
is no other basis for a higher schedular rating for the 
orthopedic manifestations of the low back disability.  
Accordingly, the Board finds that a rating in excess of 40 
percent is not warranted under the general criteria for 
rating injuries of the spine.

The clinical and examination records also contain no 
evidence of neurologic impairment and the Veteran has not 
otherwise reported neurologic symptoms.

Higher ratings are not available under the formula for 
rating intervertebral disc syndrome based on incapacitating 
episodes, as the Veteran denied any episodes of physician- 
prescribed bed rest, and there is no other evidence of 
prescribed bed rest.  See 38 C.F.R. § 4.71a, Diagnostic Code 
5243.

Extra-schedular consideration

Pursuant to § 3.321(b)(1), the Under Secretary for Benefits 
or the Director, Compensation and Pension Service, is 
authorized to approve an extraschedular evaluation if the 
case "presents such an exceptional or unusual disability 
picture with such related factors as marked interference 
with employment or frequent periods of hospitalization as to 
render impractical the application of the regular schedular 
standards."  38 C.F.R. § 3.321(b)(1) (2009).  

The question of an extraschedular rating is a component of a 
claim for an increased rating. See Bagwell v. Brown, 9 Vet. 
App. 337, 339 (1996).  Although the Board may not assign an 
extraschedular rating in the first instance, it must 
specifically adjudicate whether to refer a case for 
extraschedular evaluation when the issue either is raised by 
the claimant or is reasonably raised by the evidence of 
record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

If the evidence raises the question of entitlement to an 
extraschedular rating, the threshold factor for 
extraschedular consideration is a finding that the evidence 
before VA presents such an exceptional disability picture 
that the available schedular evaluations for that service-
connected disability are inadequate.  Therefore, initially, 
there must be a comparison between the level of severity and 
symptomatology of the claimant's service-connected 
disability with the established criteria found in the rating 
schedule for that disability.  Thun v. Peake, 22 Vet. App. 
111 (2008).

Under the approach prescribed by VA, if the criteria 
reasonably describe the claimant's disability level and 
symptomatology, then the claimant's disability picture is 
contemplated by the rating schedule, the assigned schedular 
evaluation is, therefore, adequate, and no referral is 
required.  In the second step of the inquiry, however, if 
the schedular evaluation does not contemplate the claimant's 
level of disability and symptomatology and is found 
inadequate, the RO or Board must determine whether the 
claimant's exceptional disability picture exhibits other 
related factors such as those provided by the regulation as 
"governing norms."  38 C.F.R. 3.321(b)(1) (related factors 
include "marked interference with employment" and "frequent 
periods of hospitalization").  

The Veteran's disability, as discussed above, is manifested 
by symptomatology contemplated by the rating criteria, 
namely pain, and other functional impairment resulting in 
limitation of motion.  Hence, referral for consideration of 
an extraschedular rating is not warranted.

The weight of the evidence is against a finding that the 
Veteran's disability approximates the criteria for a higher 
rating and to the increased rating claim, apart from the 
TDIU claim discussed below, is denied.  38 U.S.C.A. 
§ 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2009).


ORDER

A rating in excess of 40 percent for degenerative joint 
disease, lumbar spine is denied.


REMAND

The Court has held that TDIU is an element of all appeals of 
an initial or increased rating.  Rice v. Shinseki, 22 Vet. 
App. 447 (2009).  TDIU is granted where a Veteran's service 
connected disabilities are rated less than total, but they 
prevent him from obtaining or maintaining all gainful 
employment for which his education and occupational 
experience would otherwise qualify him.  38 C.F.R. § 4.16 
(2009).

Where a Veteran: (1) submits evidence of a medical 
disability; (2) makes a claim for the highest rating 
possible; and (3) submits evidence of unemployability, the 
requirement in 38 C.F.R. § 3.155(a) (2001) that an informal 
claim "identify the benefit sought" has been satisfied and 
VA must consider whether the Veteran is entitled to a total 
rating for compensation purposes based on individual 
unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 
(Fed. Cir. 2001).  In this case the Veteran has satisfied 
each of these requirements.  The Veteran has reported during 
VA outpatient treatment and on VA examination in June 2007 
that he has been unemployed since 2006, and during the June 
2007 examination, the Veteran reported that the unemployment 
was attributable to his low back disability.

The Court has held that in the case of a claim for TDIU, the 
duty to assist requires that VA obtaining an examination 
which includes an opinion on what effect the appellant's 
service- connected disability has on his ability to work.  
Friscia v. Brown, 7 Vet. App. 294, 297 (1994).  The most 
recent examiner recorded the Veteran's reports and opined 
that the degenerative joint disease of the lumbar spine does 
not prevent employment.  However, the examiner did not give 
a rationale for his opinion.  In addition, the Board notes 
that the Veteran's claims file and medical records were not 
reviewed by the examiner because they were not requested by 
the VA RO.  Such a review would be helpful in assessing the 
Veteran's work history and his ability to maintain gainful 
employment.

Accordingly, the case is REMANDED for the following action:

1.  The examiner who provided the June 
2007 VA examination should review the 
claims folder and provide an opinion as 
to whether the Veteran's back 
disability, together with his other 
service connected disabilities 
(sinusitis, hypertension, epididymitis, 
and headaches) would as likely as not 
(50 percent probability or more) 
prevent the Veteran from obtaining or 
retaining gainful employment for which 
he would otherwise be qualified.  The 
examiner should provide a rationale for 
this opinion.

If the examiner is not available, or 
otherwise unable to provide the 
necessary opinion, the Veteran should 
be afforded a VA examination so that 
the opinion can be obtained.

2.  If there is evidence that the 
service connected disabilities preclude 
gainful employment, the case should be 
referred to the Director of VA's 
Compensation and Pension Service in 
accordance with 38 C.F.R. § 4.16(b) 
(2009).

3.  If entitlement to TDIU remains 
denied, a supplemental statement of the 
case should be issued.  The case should 
then be returned to the Board, if 
otherwise in order.

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. 2009).



______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs