Citation Nr: 1107586 Decision Date: 02/25/11 Archive Date: 03/09/11 DOCKET NO. 09-03 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for chronic lumbar strain with degenerative changes, currently evaluated as 40 percent disabling. 2. Entitlement to an initial evaluation in excess of 10 percent for right leg radiculopathy. 3. Entitlement to an initial evaluation in excess of 10 percent for left leg radiculopathy. 4. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri . Although the Veteran did not separately perfect an appeal pertaining to bilateral lower extremity radiculopathy this issue is a component of his claim for an increased rating for his low back disability. The Board finds, therefore, that the issue of entitlement to an evaluation in excess of separate 10 percent ratings for bilateral leg radiculopathy is within its jurisdiction. See Buckley v. West, 12 Vet. App. 76, 81 (1988) (the Board has jurisdiction of all issues appropriately identified from the radix of the notice of disagreement). The Board notes that a request for a TDIU, whether expressly raised or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Accordingly, the issues are as stated on the title page of this decision. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran's chronic lumbar strain with degenerative changes does not manifest in unfavorable ankylosis of the entire spine. 2. The Veteran's bilateral leg radiculopathy, as a residual of the Veteran's service-connected low back disability, manifests with decreased reflexes and decreased sensory perception in the lower extremities; however, there is no evidence of moderately severe incomplete paralysis, no evidence of muscle atrophy bilaterally, and only slightly diminished strength upon objective testing. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for chronic lumbar strain with degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5237, 5242, 5243 (2010). 2. An evaluation of 20 percent, but no higher, for right leg radiculopathy is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1, 4.124a, Diagnostic Code 8520 (2010). 3. An evaluation of 20 percent, but no higher, for left leg radiculopathy is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1, 4.124a, Diagnostic Code 8520 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Here, the Veteran was sent a letter in August 2005 that fully addressed all notice elements and was issued prior to the initial RO decision in the matter of the claim for an increased rating. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. In the instant case, the Veteran was never informed of how VA determines disability ratings and effective dates. However, as the instant decision denies an increased rating, the failure to provide Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. Concerning the appeals for higher ratings for bilateral radiculopathy, these issues arise subsequent to the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). 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 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2010). Lumbosacral strain is rated under the General Rating Formula for Diseases and Injuries of the Spine. It provides that an evaluation of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242. The rating criteria for intervertebral disc syndrome is evaluated either on the total duration of incapacitating episodes resulting from intervertebral disc syndrome over the past 12 months, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 10 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months. Finally, a rating of 60 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Under Diagnostic Code 8520, pertaining to paralysis of the sciatic nerve, a 10 percent rating is warranted if paralysis is mild, a 20 percent rating is warranted if it is moderate, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.121a, Diagnostic Code 8520. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2010). Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a (2010). When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2010). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§4.10, 4.40 and 4.45 (2010) are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more of less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Turning to the evidence of record, the Veteran was afforded a VA examination in September 2005. He indicated that he was a self- employed tree surgeon who ran his own crew. He explained that he had problems doing physically strenuous activity the previous three to four years due to his back condition and arthritis. He indicated that he went to the hospital for severe back pain three to four times per year. He had no urinary incontinence, no erectile dysfunction, no fecal incontinence, no numbness, no falls, no unsteadiness and no urinary retention. However, he did report weekly lower extremity weakness and paresthesias. The Veteran indicated that he had flare-ups every one to two months for four to seven days; by his estimate, during flare-ups all ranges of motion were limited to 20 degrees and he could not stand or walk for more than 5 to 10 minutes. He also stated that he could not pick up or hold a pan to cook during flare-ups. The Veteran additionally complained of mild weakness and fatigue; moderate decreased motion; moderate stiffness in the morning; moderate spasm; and moderate, constant pain with radiation to the right hip. He could normally walk 1/8 of a mile. He reported he had no incapacitating episodes. On physical examination, the Veteran had normal gait and posture and mild lumbar flattening. He had no thoracolumbar spine ankylosis. There was no spasm or atrophy. The Veteran did not have muscle spasm, localized tenderness or guarding severe enough to cause abnormal gait or abnormal spine contour. Range of motion was as follows: flexion from 0 to 60 degrees, with pain from 45 to 60 degrees; extension from 0 to 12 degrees, with pain throughout; left lateral flexion from 0 to 30 degrees; right lateral flexion from 0 to 24 degrees; left lateral rotation from 0 to 30 degrees; and right lateral rotation from 0 to 25 degrees. There was additional pain, fatigue, weakness, or lack of endurance on repetitive use to include loss of motion on repetitive use at flexion from 0 to 45 degrees due to pain. Upon detailed motor exam, his lower extremities had 5/5 strength with normal muscle tone. For his detailed sensory examination, there was impaired light touch bilaterally. However, he had normal vibration and position sense with no abnormal sensation. For his detailed reflex examination, the Veteran had normal knee jerk bilaterally with hypoactive left ankle jerk and absent right ankle jerk. He had positive Lasegue's sign on the right. X-rays yielded an impression of mild lumbar spondylosis with narrowing of the aforesaid disc spaces; transitional vertebra; and spondylolysis grade 1 at L4. A March 2006 VA treatment note reflects complaints of intermittent spells of recurrent lumbar pain, sometimes reaching a pain level of 10 out of 10, during which the Veteran was unable to stand, sit, walk or have any motion without severe pain. He reported radiation down his left leg to the knee in between flare-ups. The provider indicated that the Veteran's strength may be less than normal but that sensory findings were unchanged. There was no relief with Vicodin or other medications. He was offered surgery but refused due to his fear of paralysis. The provider indicated that the Veteran was obviously in extreme pain and that his back was tender in the lower lumbar region. The Veteran was barely able to stand or walk and any motion caused pain; his straight leg raises were limited to 10 degrees, which he was unable to do himself. Sensory examination was grossly normal. The provider was unable to conduct strength tests due to pain, and his reflexes were 1+. The Veteran was afforded additional VA examinations for the spine and peripheral nerves in December 2006. He reported flare-ups with pain at 10 out of 10, three or four times per month, lasting from two hours to two or three days, with pain, weakness, fatigue and functional loss. He also reported radiation from the lower back into the lower extremities. He had not worked since 1995. Objectively, straight leg raises were positive bilaterally. His right patella deep tendon reflexes were 2+. The examiner was unable to elicit Achilles deep tendon reflexes or left patella reflexes. There was diminished perception of vibratory stimuli in the right sacral L2 intervention area. There was diminished perception of vibratory stimuli in the left lower extremity to the L2 and L5 intervention areas. Motor strength testing of the lower extremities, including dorsiflexion and plantar flexion of the feet, was 4/5. There was increased pain and decreased strength with repetitive range of motion. There was mild clonus movement elicited. Heel and toe gate testing was unstable and he was unable to perform the tests. There was no unusual callous formation of the feet but there was increased shoe wear pattern to the outer heels. There was normal configuration of the lumbar sacral spine area with a symmetrical appearance with rest and motion of the musculature of the area and no wasting of the lower extremity limbs. Bilaterally, calf and quadriceps circumference were the same. The Veteran's posture was erect with a very stiff but steady gait. The Veteran had difficulty rising from a sitting position and utilized the armrest on the chair. Active range of motion was from 0 to 72 degrees for flexion, with extension from 0 to 0 degrees; lateral flexion on the right from 0 to 12 degrees and on the left from 0 to 18 degrees; and right rotation from 0 to 30 degrees and left rotation from 0 to 30 degrees. Passive range of motion was from 0 to 78 degrees for flexion, with extension from 0 to 0 degrees; right lateral flexion from 0 to 15 degrees and left lateral flexion from 0 to 20 degrees; and right rotation from 0 to 30 degrees and left rotation from 0 to 30 degrees. With repetitive motion, the Veteran's had 0 to 72 degrees of flexion, and 0 to 0 degrees of extension; right lateral flexion was from 0 to 10 degrees and left lateral flexion was from 0 to 16 degrees; and right rotation was from 0 to 26 degrees and left lateral flexion was from 0 to 28 degrees. The Veteran reported that pain was present at 0 degrees of motion on testing and increased throughout. There were additional limitations of range of motion or joint function secondary to pain, fatigue, weakness or lack of endurance following repetitive use. There was no evidence of fixed postural abnormalities or evidence of ankylosis present. An MRI revealed a dominant finding of a right paracentral and lateral recessed broad-based protrusion at L4-5, which effaces the descending right L5 nerve root and likely correlates with the Veteran's right-sided radiculopathy pain; and grade 1 spondylolisthesis at L3-4 which is related to occult spondylolysis at L3 with at least moderate bilateral foraminal stenosis at that level. An x-ray revealed bilateral spondylolysis of L4 with spondylolisthesis of L4-5. The overall diagnosis was chronic lumbar strain with degenerative disc disease and radiculopathy. The Board initially notes that the Veteran has been diagnosed with disc disease. However, the evidence does not reflect any incapacitating episodes requiring bed rest prescribed by a physician. In this regard, the September 2005 VA examination report revealed that the Veteran did not have incapacitating episodes. Thus, the evidence does not reflect that the Veteran has experienced incapacitating episodes as defined by the rating schedule for a total duration of 6 weeks over the period of 12 months. Additionally, in order to receive a higher rating under Diagnostic Code 5237 for lumbosacral strain, the Veteran's disability would have to manifest in unfavorable ankylosis of the entire thoracolumbar spine. The Board observes that there is no indication of ankylosis of the spine shown during the Veteran's VA examinations or in the context of his VA treatment. In this regard, the Board notes that the Veteran was barely able to stand or walk and any motion caused pain during March 2006 treatment; however, there is no indication that the spine was actually ankylosed in an unfavorable position, or that the extent of his disability most nearly approximated unfavorable ankylosis, even when considering DeLuca factors. Indeed, both the September 2005 and December 2006 VA examinations expressly noted that there was no ankylosis of the lumbar or thoracolumbar spine. Thus, while the evidence does reflect considerable limitations, the overall disability picture does not rise to the level contemplated by the next-higher 50 percent rating. Rather, the functional limitations described above are accounted for in his 40 percent disability rating as already in effect throughout the rating period on appeal. Thus, the Board finds that the Veteran's back disability does not warrant a higher rating than the current 40 percent disability rating. As a result of the Veteran's service-connected bilateral leg radiculopathy, he experiences diminished perception of vibratory stimuli in the right sacral L2 intervention area as well as diminished perception of vibratory stimuli in the left lower extremity to the L2 and L5 intervention areas, with reported unsteadiness as of the December 2006 VA examination. Indeed, the most recent VA examiner was unable to elicit Achilles deep tendon reflexes or left patella reflexes at that time. Additionally, the December 2006 examination showed motor strength testing of the lower extremities including dorsiflexion and plantar flexion of the feet to be 4/5. Under these circumstances, the Board is of the opinion that the Veteran's service-connected bilateral lower extremity radiculopathy is consistent with moderate incomplete paralysis of the sciatic nerve since June 2005. Accordingly, 20 percent evaluations are warranted by the Veteran's condition during the entirety of the relevant period for each lower extremity. While a 20 percent evaluation is warranted for neurologic manifestations of each lower extremity, ratings in excess of that amount are not justified. Indeed, moderately severe incomplete paralysis has not been shown. For example, the Veteran reported at his September 2005 VA examination that he had no urinary incontinence, no erectile dysfunction, no fecal incontinence, no numbness, no falls, no unsteadiness and no urinary retention. Objective findings at that time revealed 5/5 strength testing, with normal muscle tone. While light touch was impaired, he had normal vibration and position sense with no abnormal sensation. He also had normal knee jerk bilaterally with hypoactive left ankle jerk and absent right ankle jerk. The Board also notes that there was no wasting of the lower extremity limbs and calf and quadriceps circumference were the same bilaterally. Moreover, even the 2006 examination showed only 4/5 strength deficit in the lower extremities. In sum, a 20 percent rating, but no higher, is warranted for the neurologic component of the low back disability on appeal. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected back disability, to include his bilateral lower extremity radiculopathy, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorders. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. ORDER Entitlement to an increased rating for chronic lumbar strain with degenerative changes, currently evaluated as 40 percent disabling, is denied. Entitlement to an evaluation of 20 percent for right leg radiculopathy is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an evaluation of 20 percent for left leg radiculopathy is granted, subject to the law and regulations governing the award of monetary benefits. REMAND With respect to the TDIU claim, the file contains conflicting statements as to the Veteran's employment history. For example, he related during his September 2005 VA examination that he was self-employed. By contrast, he had indicated during his December 2006 VA examination that he had been unemployed as a result of his back problems since 1995. He has been receiving a non- service connected pension since June 2000, reflecting an inability to work due to nonservice-connected problems. In the context of his pension claim, he contended that he had last worked as a tree surgeon until August 1998. Additionally, in a May 2009 VA examination for his liver, gall bladder and pancreas, the Veteran indicated that he was retired from being an arborist due to his arthritis as of 2006. Despite the inconsistencies in his statements, he clearly is not working at present. Moreover, his disability ratings satisfy the threshold percentage requirements under 38 C.F.R. § 4.16(a). Thus, the Board finds that an examination should be afforded to determine whether the Veteran's service-connected disabilities, standing alone, preclude employment. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA medical examination in order to determine whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's service- connected disabilities alone are sufficient to preclude substantially gainful employment in light of his professional qualifications and employment history. Age cannot be considered in rendering the requested opinion. A rationale for all opinions and conclusion should be provided, and the examination report must indicate whether the claims file was reviewed in conjunction with the examination. 2. After the development requested above has been completed to the extent possible, the record should be reviewed. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs