Citation Nr: 1310778 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-24 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen Veteran's claim of entitlement to service connection for bone spurs of the cervical spine. 2. Entitlement to service connection for bone spurs of the cervical spine. 3. Entitlement to an increased rating in excess of 20 percent for lumbosacral strain with history of psychophysiological overlay and intervertebral syndrome of the nerve root at L5 with superficial peroneal nerve involvement and degenerative joint disease prior to June 11, 2011, and 40 percent thereafter. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Terry L. Miller, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active military service from April 1981 to June 1982. He also had active duty for training from March to June 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A May 2007 rating decision continued a previously-assigned 20 percent disability rating for the Veteran's service-connected lumbosacral strain with history of psychophysiological overlay and intervertebral syndrome of the nerve root at L5 with superficial peroneal nerve involvement. A June 2011 RO rating decision (which added degenerative joint disease to the description of the service-connected disability) increased the disability evaluation assigned to the Veteran's lumbar spine disorder to 40 percent, effective from June 14, 2011. As the Veteran is in receipt of less than the maximum schedular rating for this disorder, the matter therefore remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). An October 2009 rating decision determined that service connection was not warranted for bone spurs of the cervical spine. The Board observes, however, that service connection for cervical spine injury residuals was previously denied in a final July 1990 RO decision. Therefore, while acknowledging that the RO in October 2009 adjudicated the Veteran's claim on a de novo basis, the Board is nevertheless required to address whether the Veteran has submitted new and material evidence to reopen his claim for entitlement to service connection for cervical spine bone spurs. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, regardless of the manner in which the RO characterized the issue, the initial question before the Board is whether new and material evidence has been presented. A video conference hearing was held in November 2012, with the Veteran sitting at the RO, and the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing testimony (transcript) is associated with the claims folder. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for total disability rating, whether expressly raised by a veteran 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 as part of a claim for increased compensation. Id. at 453-54. In the current appeal, an issue before the Board involves the degree of disability of the Veteran's service-connected lumbar spine disability. During the current appeal, the Veteran has asserted that he is unable to work as a result of his worsening lumbar spine problems. See page 35 of transcript. Accordingly, the Board concludes that the issue of entitlement to a TDIU has been reasonably raised by the record and that therefore the Board does have jurisdiction over this claim. The issues of entitlement to an increased rating in excess of 20 percent for lumbosacral strain with history of psychophysiological overlay and intervertebral syndrome of the nerve root at L5 with superficial peroneal nerve involvement and degenerative joint disease prior to June 11, 2011, and 40 percent thereafter and for 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. A July 1990 rating decision denied the appellant's claim of entitlement to service connection for cervical spine injury residuals. The appellant was notified of his appellate rights in August 1990, but did not appeal the decision. 2. Evidence associated with the claims file after the last final denial in July 1990 is neither cumulative nor redundant of the evidence of record at that time and, when considered with the previous evidence of record, raises a reasonable possibility of substantiating the claim. 3. Affording the Veteran the benefit of the doubt, the Veteran has a current cervical spine disorder that is related to active service. CONCLUSIONS OF LAW 1. The July 1990 RO rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the July 1990 rating decision, in connection with Veteran's request to reopen a claim of service connection for bone spurs of the cervical spine, is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The Veteran's cervical spine disorder was incurred in active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Application to Reopen In a July 1990 RO decision the Veteran's claim of entitlement to service connection for cervical spine injury residuals was denied. This rating decision indicates that the Veteran was involved in an April 1981 motor vehicle accident, at which time he was treated for neck-related complaints. Service medical records on file, together with private medical records dated concurrently, show that cervical lumbar strain was diagnosed in April 1981. An April 1981 emergency room record shows that a severe neck sprain was diagnosed. The Veteran was provided a cervical spine collar. An April 1982 X-ray report showed findings of cervical spine kyphosis. Mild cervical strain was diagnosed at that time. An April 1982 Medical Board Proceedings report shows that diagnoses of chronic cervical and lumbosacral strain were provided. The Board parenthetically observes that the Veteran was granted service connection for a lumbar spine-related disorder in July 1990. The RO in July 1990 additionally found that at that time there was no evidence of a current disability of the neck or cervical spine. The report of an April 1990 VA examination includes a diagnosis of history of residuals of injury to neck. The evidence before VA at the time of the prior final decision consisted of the Veteran's service treatment records and the above-mentioned April 1990 VA examination report. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. Thus, the July 1990 RO rating decision became final because the Veteran did not file a timely appeal. In addition, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently reiterated that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may not support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Significantly, absent any indication in the record that this analysis occurred, the Federal Circuit explained that it was particularly reluctant to presume that the VA considered, but rejected, the possibility that a submission contained new and material evidence relating to an earlier claim. Id. at 1368. The Federal Circuit noted the Board's statutory obligation to provide a written statement of its findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. Id. In the current case, nothing was received and associated with the claims file during the year subsequent to notice of the July 1990 RO denial. As such, no new and material evidence relevant to the claim of entitlement to service connection for bone spurs of the cervical spine was received during the relevant period and the July 1990 RO rating decision became final. The claim of entitlement to service connection for cervical spine bone spurs may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim of entitlement to service connection for this disorder in September 2006. Under the law in effect at the time he filed his claim, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason(s) why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). As noted above, the Veteran filed his current claim of entitlement to service connection for bone spurs of the cervical spine in September 2006. The RO, in July 1990, denied his claim on the basis that, while he was treated for his cervical spine during his military service, there was no evidence that the Veteran had a cervical spine disorder in the course of an April 1990 VA examination. The RO added that, essentially, the Veteran did not currently have a cervical spine disorder. Following the RO's prior final denial in July 1990, additional evidence was associated with the claims file, including several VA and private medical records and the testimony of the Veteran at a hearing before the undersigned Veterans Law Judge in November 2012. The Veteran's testimony competently and credibly reveals that the Veteran has had problems with his neck since separation from service. The post-July 1990 medical record also includes several treatment records which include diagnoses of a neck/cervical spine disorder. These include a September 2009 VA fee-basis ("QTC") examination report, which includes a diagnosis of cervical spine intervertebral disc syndrome. The examiner also commented that review of other medical records had shown the presence of bone spurs of the neck. The examiner commented that it would be speculative to opinion that the Veteran's bone spurs were service connected as there was "many causes" of bone spurs. A January 2010 private examination report includes a diagnosis of cervical degenerative disc disruption. The Board finds that this evidence is both new and material. The evidence is new as it was not of record at the time of the prior denial. The evidence is also material in that it indicates that the Veteran currently has medically-diagnosed cervical spine (neck) problems and that he has had such problems since separation from service. As noted, in July 1990 the RO found that the Veteran did not have a neck-related disorder. In light of the above, the Board finds that the evidence received in conjunction with the Veteran's request to reopen his previously disallowed claim is both new and material and, therefore, the request to reopen the previously denied claim of residuals of a cervical spine injury (now characterized as bone spurs of the cervical spine) is granted. 38 C.F.R. § 3.156(a). Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (holding that a finding of continuity of symptomatology to presume service connection for a chronic disease applies only to the diseases listed at 38 C.F.R. § 3.309(a)). Bone spurs are not included in 38 C.F.R. § 3.309(a). Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. In adjudicating a claim, including as to continuity of symptomatology, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, whether the veteran's particular disability is the type of disability for which lay evidence is competent. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Federal Circuit has held that there is no categorical requirement of "'competent medical evidence ... [when] the determinative issue involves either medical etiology or a medical diagnosis.'" Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377. For example, the Veteran is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson; Jandreau; Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. The Veteran seeks entitlement to service connection for bone spurs of the cervical spine. The above-discussed service treatment records note treatment afforded the Veteran for his cervical spine. The evidence added to the record after July 1990 clearly demonstrates that the Veteran in fact has a cervical spine disability. Also, the report of a January 2013 private medical independent examination report shows that the Veteran reported a history of injuring his back and neck in a 1981 motor vehicle accident, and, at which time cervical strain was diagnosed. The examining physician, in providing a diagnosis of cervical disk disease, commented that it was impossible to draw specific correlations between the 1981 accident and the Veteran's specific cervical spine disorder diagnosed in the course of the examination. The examiner added, however, that in the absence of other factors, it was "as likely as not" that these remote traumas are causative for his cervical disk disease. The Board observes that this physician is familiar with the Veteran, as he conducted a March 2012 examination in conjunction with the Veteran's claim for Social Security Administration (SSA) disability benefits. Thus, in resolving all doubt in the Veteran's favor, this opinion demonstrates that the Veteran's presently-manifested cervical spine disk disease is etiologically related to his in-service motor vehicle accident. Although the January 2013 private medical opinion is not accompanied by a specific explanation, it at least supports a conclusion that the Veteran's involvement in a 1981 motor vehicle accident at least as likely as not is responsible for his current cervical spine-related problems. This physician, as mentioned, is shown to have previously examined the Veteran. His knowledge of the health of the Veteran is without rival. The Veteran is competent to report orthopedic symptoms, such as neck pain. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. Further, there is nothing to explicitly contradict his reports, and his reports are otherwise generally consistent with the evidence of record. Therefore, the Board concludes that the Veteran's reports of neck-related pain beginning after his 1981 in-service accident are credible. In light of the Veteran's competent credible testimony, a positive nexus opinion, and a current diagnosis, the Board concludes that the evidence supports a finding that the Veteran's current cervical spine disability is related to his active military service. ORDER As new and material evidence has been submitted to reopen the claim of service connection for bone spurs of the cervical spine, the appeal to this extent is allowed. Service connection for bone spurs of the cervical spine is granted. REMAND The record reflects that in June 2011 the RO issued a supplemental statement of the case (SSOC) on the claim for an increased rating for the Veteran's service-connected lumbar spine disability. However, after the issuance of the June 2011 SSOC additional VA and private medical records were associated with the Veteran's claims file. While the Veteran did waive initial RO consideration of a March 2012 SSA decision he submitted to the undersigned in the course of his November 2012 hearing, other evidence submitted to the Board in January 2013 from the Veteran's attorney, in the form of private medical and VA records, was not accompanied by such a waiver. See 38 C.F.R. § 20.1304 (2012). Since this case must be remanded in order to afford the Veteran a VA examination and to seek to obtain medical evidence from SSA, the Board will instruct the RO to consider this evidence on remand and issue an SSOC, rather than attempt to obtain the Veteran's waiver of his right to RO consideration of the additional evidence in the first instance. See 38 C.F.R. §§ 19.31, 19.37 (2012). The Veteran's service-connected lumbar spine disability has been evaluated using criteria of Diagnostic Codes 5242 (degenerative arthritis of the spine) and 5243 (intervertebral disc syndrome). Under the General Rating Formula for Diseases and Injuries of the Spine (which includes Diagnostic Codes 5242 and 5243), a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is 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 enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the thoracolumbar spine. 38 C.F.R. § 4.71a. Also under Diagnostic Code 5243, intervertebral disc syndrome can be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under this diagnostic code, a 20 percent rating can be assigned where incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past year are shown to have occurred. For a 40 percent rating, the incapacitating episodes need to have a total duration of at least 4 weeks but less than 6 weeks during the past year. For a 60 percent rating, the incapacitating episodes need to have a total duration of at least 6 weeks during the past year. The Veteran was most recently afforded a VA spine examination to evaluate the nature and severity of his service-connected lumbar spine in June 2011. The examiner commented that he did not have the Veteran's claims folder available for review. To this, the Board observes that governing regulations provide that VA's duty to assist includes conducting a thorough and contemporaneous examination of the Veteran that takes into account the records of prior examinations and treatment. 38 C.F.R. § 3.326 (2012); Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was shown to use a cane, but not a walker or a wheelchair. He complained of localized low back pain, which radiated down his right leg at the back of his thigh to the feet. He complained of associated foot numbness. The supplied diagnosis was lumbar spine degenerative joint disease, mainly at L5-S1. In the course of the June 2011 VA spine examination, it was reported that the Veteran was currently under the treatment of a private physician, Dr. S. See page two of examination report. It was added that the Veteran was last seen by this physician two weeks earlier. Review of the record shows that medical records are on file from this private spine and pain medicine practice; however, these are most recently dated in January 2010. As records from the above-cited private medical provider may contain probative information regarding the extent of severity of any currently present low back disorder, efforts to retrieve them are required. See 38 C.F.R. § 3.159(c)(1) (2012). At his November 2012 hearing, the Veteran complained that his back had "gotten worse" since June 2011, with symptoms causing him to seek bed rest on a daily basis. See page eight of transcript. The Veteran also testified as to the radiating pain which traveled from his back into his lower extremities, worse on his right side. See page 28 of transcript. As mentioned, the Veteran was last afforded a VA examination for his lumbar spine in June 2011. This is nearly two years ago. In some instances, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Peters v. Brown, 6 Vet. App. 540, 542 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). In this case, the Veteran testified at his November 2012 hearing that he felt the severity of his lumbar spine disability had increased. The Board finds this to be a reasonable assertion, inasmuch as he is shown to continue to be treated privately for pain management. In light of the factors noted above, as well as in contemplating that the Veteran has not been examined by VA after his June 2011 VA spine examination, the Board concludes that, in this case, another VA examination is needed to render a decision on the claim. 38 C.F.R. § 3.159(c)(4). Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. 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). Hence, in readjudicating this claim the RO must consider the Hart decision. The Board also observes that of record is a March 2012 fully favorable decision from the SSA to the Veteran, informing him that he was entitled to a period of disability commencing in December 2009. Records, to include medical, associated with this SSA decision have not been sought by VA. VA has a duty to obtain any relevant records obtained or developed in conjunction with a SSA claim. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) ("As long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the identified records."). The Board also notes that VA must obtain SSA decisions and records which may have a bearing on a Veteran's claim. Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). In this regard, the Board notes that, "[i]n the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained." Hyatt v. Nicholson, 21 Vet. App. 390 (2007). As such, pursuant to this remand, and while acknowledging that the Veteran's attorney in the course of the November 2012 hearing informed the undersigned that it was his belief that all relevant SSA records had already been associated with the Veteran's claims folder (see page two of transcript), as this case must be remanded anyway and in an effort to develop additional evidence concerning the increased ratings and TDIU claims now before the Board on appeal, an exhaustive effort should be made to clarify if SSA records pertaining to the Veteran, including medical records, are available. Concerning the claim for entitlement to TDIU raised within the context of the appeal for an increased rating for a service-connected lumbar spine disability -- the Board notes first that the Veteran should be sent the appropriate application form for this claim. Rice. Second, the Board notes that, to be granted, a TDIU rating must be supported by medical evidence that a claimant's service-connected disability or disabilities have rendered a veteran unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a) (2012). Given the assertions made in the course of this appeal concerning the employability of the Veteran, the Board concludes that, on remand, a VA examiner should address the extent of functional and industrial impairment due to the Veteran's service-connected disabilities - at this juncture, his lumbar spine disability and now service-connected cervical spine disability. See Gary v. Brown, 7 Vet. App. 229 (1994); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); Beaty v. Brown, 6 Vet. App. 532 (1994); Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). There is no examination report in the claims file that addresses both the extent of functional and industrial impairment and the ability of the Veteran to obtain or maintain substantially gainful employment concerning his service-connected disabilities. Such an opinion therefore must be obtained. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran the appropriate application form for a claim for TDIU, and request that such form be completed and returned to VA. 2. The RO/AMC should request, directly from the SSA, complete copies of any medical records that served as the basis for the March 2012 determination. All attempts to fulfill this development should be documented in the claims file. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If the records are unavailable, the claims file must be properly documented as to the unavailability of these records. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 3. The RO/AMC should also obtain all records, dated from January 2010 to the present, associated with treatment provided the Veteran by a private physician, Dr. S. The Board notes that this pain management center is located in Dalton, Georgia. To assist in acquiring these private medical records, the RO/AMC should provide the Veteran a copy of VA Form 21-4142 (Authorization and Consent to Release Information). Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(1). If the records are unavailable, the claims file must be properly documented as to the unavailability of these records. 4. After the above evidentiary development is accomplished to the extent possible, the RO/AMC should schedule the Veteran for VA orthopedic and neurological examination to determine the current severity of his service-connected lumbar spine disability, as well as to obtain an opinion concerning the affect of the Veteran's service-connected lumbar and cervical spine disorders on his employability. The claim files must be made available to the VA examiner, and the examiner should review the file prior to the examination. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any lower back disability. All appropriate tests and studies, including neurological studies and range of motion studies reported in degrees, must be accomplished. All findings should be made available to the examiner prior to the completion of their reports, and all clinical findings should be reported in detail. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service-connected low back disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should attempt to specify the Veteran's neurological symptoms, including lower extremity symptoms, which are attributable to his lumbar spine disability. In addition, after considering the Veteran's documented medical history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. Concerning the Veteran's low back disability, the examiner must answer the following questions: * Is there favorable or unfavorable thoracolumbar ankylosis? If so, which and to what degree? * What is the exact measurement for forward flexion of the Veteran's thoracolumbar spine? Does the Veteran's age, body habitus, neurologic disease, or other factors unrelated to disease or injury of the spine, in any way render the above provided range of motion value normal, even though it does not conform to the normal range of motion values set forth in Note (2) of 38 C.F.R. § 4.71a (2012). If so, a full supporting rationale for such a conclusion must be furnished. * What is the combined range of motion of the thoracolumbar spine (forward flexion, extension, lateral flexion, and lateral rotation), with normal being 240 degrees? * Does the Veteran's lumbar spine exhibit weakened movement, excess fatigability, or incoordination? If feasible, these determinations should be expressed in terms of additional lost range of motion or favorable or unfavorable ankylosis due to any excess fatigability, weakened movement or incoordination. If the examiner is unable to make such a determination, it should be so indicated on the record. * During the prior twelve months has the Veteran experienced incapacitating episodes (i.e., a period of acute signs and symptoms which require bed rest prescribed by a physician and treatment by a physician) involving his low back disorder having a total duration of at least four weeks? * The examiner should address the extent of functional and industrial impairment due to the Veteran's service-connected lumbar spine disability. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The examiner should also determine the impact of the Veteran's service-connected disabilities (lumbar spine and cervical (neck) spine) on his employability. All indicated studies should be performed, and all findings should be reported in detail. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his service-connected disabilities. The examiner must opine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation in light of his education and occupational history. Although it is the responsibility of the VA rating specialist to determine, based on all the evidence of record whether the Veteran is unable to obtain or retain substantially gainful employment in light of his service-connected disabilities alone, the VA examiner must address the extent of functional and industrial impairment due to the Veteran's service-connected disabilities. It is the examiner's responsibility to furnish a full description of the effects of the service-connected disabilities upon the Veteran's ordinary activity which include employment. See 38 C.F.R. § 4.10. This description may include an opinion on such questions as whether a claimant's condition precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. Moore v. Nicholson, 21 Vet. App. 211, 219 (2007), rev'd on other grounds sub nom. Moore v Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although the examiner is not required to offer an opinion on the general employability of the Veteran, the examiner should, in this case, offer such an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities. The examination report must include a complete rationale for all opinions and conclusions expressed. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 5. The Veteran is hereby notified that it is his responsibility to report for the above-ordered VA examinations, to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any ordered examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, appropriate corrective action should be taken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. If, while in remand status, additional evidence or information received triggers a need for further development or assistance, such as providing the Veteran with updated notice of what evidence has been received and not received by VA as well as who has the duty to request evidence, then such development must be undertaken by VA. 38 U.S.C.A. §§ 5100, 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). 8. Thereafter, and following any other indicated development, the RO/AMC should readjudicate the appealed issue of entitlement to an increased rating in excess of 20 percent for lumbosacral strain with history of psychophysiological overlay and intervertebral syndrome of the nerve root at L5 with superficial peroneal nerve involvement and degenerative joint disease prior to June 11, 2011, and 40 percent thereafter. The RO/AMC must consider whether different ratings may be warranted for different time periods in light of the decision in Hart. If the appeal is denied, the Veteran and his representative should be provided a SSOC in accordance with 38 U.S.C.A. § 7105 (West 2002) which includes a summary of any additional evidence submitted (including that received by VA since the issuance of the June 2011 SSOC), applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond. 9. The RO/AMC then should adjudicate the TDIU claim. If the issue is denied, the RO/AMC should issue an SSOC which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required on his part until he is notified. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs