Citation Nr: 1311633 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 06-30 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 40 percent for degenerative disc disease at L5-S1 with a bulging disc. 2. Entitlement to a rating in excess of 30 percent for a depressive disorder. 3. Entitlement to service connection for erectile dysfunction as secondary to service-connected degenerative disc disease. 4. Entitlement to service connection for incontinence of the bowel as secondary to service-connected degenerative disc disease. 5. Entitlement to service connection for incontinence of the bladder secondary to service-connected degenerative disc disease. 6. Entitlement to service connection for right acromioclavicular (AC) joint separation as secondary to service-connected degenerative disc disease. REPRESENTATION Appellant represented by: Kenneth Carpenter, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from January 1986 to March 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2005 and March 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In November 2007, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded the claims for service connection for further action by the originating agency in October 2010. The case has now returned to the Board along with the claims for increased ratings for further appellate action. The issues of entitlement to an increased rating for a depressive disorder and entitlement to 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. The Veteran's degenerative disc disease manifests orthopedic impairment consisting of pain and severe limitation of motion without ankylosis or incapacitating episodes requiring bedrest prescribed by a physician. 2. The Veteran's degenerative disc disease manifests neurological impairment of the right lower extremity that most nearly approximates moderately severe incomplete paralysis of the sciatic nerve. 3. The Veteran's degenerative disc disease manifests neurological impairment of the left lower extremity that most nearly approximates mild incomplete paralysis of the sciatic nerve. 4. The Veteran's erectile dysfunction is etiologically related to service-connected degenerative disc disease at L5-S1 with a bulging disc. 5. The Veteran's bowel incontinence is etiologically related to service-connected degenerative disc disease at L5-S1 with a bulging disc. 6. The Veteran's bladder incontinence is etiologically related to service-connected degenerative disc disease at L5-S1 with a bulging disc. 7. The Veteran's chronic right shoulder AC dislocation is etiologically related to service-connected degenerative disc disease at L5-S1 with a bulging disc and right leg radiculopathy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for orthopedic impairment from degenerative disc disease at L5-S1 with a bulging disc have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2012). 2. The criteria for a separate disability rating of 40 percent, but not higher, for neurological impairment of the right lower extremity from degenerative disc disease have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.123, 4.124a, Diagnostic Code 8520. 3. The criteria for a separate disability rating of 10 percent, but not higher, for neurological impairment of the left lower extremity from degenerative disc disease have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.123, 4.124a, Diagnostic Code 8520. 4. Service connection for erectile dysfunction is warranted. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.310. 5. Service connection for bowel incontinence is warranted. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.310. 6. Service connection for bladder incontinence is warranted. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.310. 7. Service connection for chronic right AC dislocation is warranted. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claim Service connection for low back pain secondary to a ligament injury was granted in an April 1988 rating decision with an initial 10 percent evaluation assigned effective March 22, 1988. An increased 40 percent evaluation was awarded in an October 1998 rating decision effective June 17, 1998 and the service-connected disability was recharacterized as degenerative disc disease. The March 2011 rating decision on appeal continued the current 40 percent evaluation for degenerative disc disease. The Veteran contends that an increased rating is warranted as his low back disability is productive of chronic daily pain and has caused neurological impairment to his lower extremities. As a preliminary matter, the Board notes that the RO issued a December 2012 rating decision proposing to decrease the current 40 percent evaluation assigned to the degenerative disc disease to 20 percent. The rating decision was mailed to the Veteran in January 2013 with an accompanying letter setting out the Veteran's options with respect to the submission of additional evidence and the right to request a hearing. The record currently before the Board does not indicate that any additional action has been taken with respect to the disability evaluation currently assigned the service-connected degenerative disc disease. Furthermore, the issue before the Board is limited to whether a rating in excess of 40 percent is warranted for the low back disability. Therefore, the Board will continue with a decision on the issue of entitlement to an increased rating for degenerative disc disease at L5-S1 with a bulging disc. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's degenerative disc disease is currently rated as 40 percent disabling under Diagnostic Code 5242 (for rating degenerative arthritis of the spine) and the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2011). Under the general rating formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Thus, in order to warrant an increased evaluation under the general rating formula, the Veteran's low back disability must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. With respect to limitation of motion, the Board finds that a rating in excess of 40 percent is not warranted for the service-connected degenerative disc disease. There is no medical or lay evidence of ankylosis during the claims period, and VA examinations conducted in January 2011 and November 2012 clearly establish that the Veteran has maintained some useful motion of his lumbar spine. Range of motion was most restricted during the January 2011 VA examination when thoracolumbar flexion was limited to 30 degrees with a combined range of motion of 75 degrees. Although the Veteran's range of motion was clearly restricted at the examination, it is clear that he has retained some use of his thoracolumbar spine. VA is required to consider functional impairment when evaluating disabilities based on limitation of motion, but the provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration where, as here, 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); DeLuca v. Brown, 8 Vet. App. 202 (1995). There are no objective findings of ankylosis at any time during the claims period. While the Veteran was unable to perform side bending exercises during the January 2011 VA examination, the examiner observed that the Veteran's effort was not truly indicative of his ability and there was some evidence of symptom magnification. The Veteran has also not reported that his lumbar spine is fixed in any single position. Therefore, the Board cannot conclude that the Veteran's disability most nearly approximates ankylosis. The Board finds that the competent evidence of record establishes that the Veteran's thoracolumbar spine is not ankylosed and a rating in excess of 40 percent is not warranted based on limitation of motion. The Veteran's service-connected disability contemplates involvement of the thoracolumbar discs and the criteria included in the formula for rating intervertebral disc syndrome are for application in this claim. Under Diagnostic Code 5243, a maximum 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 provides 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, the evidence does not establish, and the Veteran does not allege, that his low back disability results in incapacitating episodes requiring bedrest prescribed by a physician at anytime during the claims period. He denied experiencing any prescribed periods of bedrest at the January 2011 and November 2012 VA examinations, and treatment records from the Veteran's VA physicians are negative for prescribed bedrest. The Veteran has clearly not experienced incapacitating episodes of this nature and an increased rating is not warranted under the criteria pertaining to intervertebral disc syndrome at anytime during the claims period. In sum, the Veteran's orthopedic impairment of the thoracolumbar spine is appropriately rated as 40 percent disabling throughout the claims period. While an increased rating is not warranted for the orthopedic component of this disability, the general rating formula does provide for separate ratings for neurologic manifestations of a back disability. The Veteran's contentions regarding neurological impairment of the genitourinary system are discussed below and the Board will therefore focus now on whether separate ratings are warranted for neurological impairment of the lower extremities. Disability involving a neurological disorder is ordinarily rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124a. The Board finds that a separate 40 percent rating is appropriate for radiculopathy of the right lower extremity under Diagnostic Code 8520 pertaining to paralysis of the sciatic nerve. A separate 10 percent rating is also warranted for radiculopathy of the left lower extremity under the same diagnostic code. Diagnostic Code 8520 provides that incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular atrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Veteran has consistently complained of pain radiating into his right lower extremity since a November 1991 VA examination and throughout the claims period. He was diagnosed with bilateral lumbar radiculopathy at the St. Louis VA Medical Center (VAMC) following an August 2008 nerve conduction study and has continued to receive treatment for the condition. While the January 2011 and November 2012 VA examiners opined that the Veteran's neurological complaints related to his lower extremities were not consistent with the results of past MRIs (which did not indicate significant spinal cord or nerve root compression), objective neurological testing during both examinations demonstrated decreased sensation in the right leg, the absence of deep tendon reflexes on the right and reduced reflexes on the left, and positive straight leg raising on the right. With respect to the right lower extremity, the Board finds that these objective manifestations and the Veteran's consistent and credible reports of right leg pain, numbness, and weakness most nearly approximate a 40 percent evaluation for moderately-severe incomplete paralysis of the sciatic nerve. As noted above, the Veteran has consistently manifested completely absent right deep tendon reflexes and decreased sensation. An increased rating is not warranted as there is no indication of muscle atrophy and the Veteran does not experience right foot drop or other signs of complete paralysis to allow for a maximum 60 percent evaluation under Diagnostic Code 8520. Turning to the left leg, the Board finds that a separate 10 percent rating for mild incomplete paralysis is warranted. The Veteran's left lower extremity has maintained full sensation and reflexes, while reduced, are present. Thus, a separate 10 percent rating for mild incomplete paralysis is appropriate. The Board has considered whether there is any other schedular basis for granting a higher rating for the orthopedic and neurological impairment resulting from the Veteran's back disability other than those discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the grant of any higher schedular ratings. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's degenerative disc disease. The Veteran's disability is manifested by orthopedic symptoms such as pain and decreased motion and neurological impairment of the bilateral lower extremities. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the disability and referral for consideration of an extraschedular rating is not warranted. Service Connection Claims The Veteran contends that service connection is warranted for erectile dysfunction and incontinence of the bowel and bladder as manifestations of the service-connected lumbar degenerative disc disease. The Veteran also contends that a right shoulder disability was incurred due to a fall caused by his service-connected low back disorder and weakened lower extremities. Service connection is provided for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has held that service connection can be granted under 38 C.F.R. § 3.310 for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA amended 38 C.F.R. § 3.310 to incorporate the holding in Allen with additional requirements that there be medical evidence created prior to the claimed aggravation showing the baseline of the disability prior to aggravation. 38 C.F.R. § 3.310(a)(b) (2008); 71 Fed. Reg. 52,744-52,747 (Sept 7, 2006) (effective October 10, 2006). The new regulation imposes additional burdens and could have retroactive effects. Hence, the Board will apply the old version of the regulation. See Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005); cf. Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). Erectile Dysfunction and Bowel and Bladder Incontinence The Veteran contends that his lumbar degenerative disc disease has caused neurological disabilities of the genitourinary system including erectile dysfunction and incontinence of the bowel and bladder. He testified in November 2007 that the symptoms had been present for several years and began following a worsening of his low back disability. The Board finds that the record establishes the presence of the claimed disabilities. The Veteran first reported experiencing erectile dysfunction and incontinence during a May 2005 neurological consultation at the St. Louis VAMC. He stated that erectile dysfunction had been present for two to three years with bowel and bladder incontinence the last two to three months. Urological testing at the VAMC in August 2006 demonstrated a neurogenic bladder and a January 2007 fee basis anorectal manometry procedure confirmed a finding of fecal incontinence. Although there is no medical evidence of erectile dysfunction, the Veteran credibly testified in November 2007 regarding the manifestations of the disability and the Board finds that his is competent to establish a diagnosis of erectile dysfunction. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection"); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient to establish a diagnosis in a particular case is a fact issue to be addressed by the Board). The Board therefore finds that the record demonstrates the presence of erectile dysfunction, bowel incontinence, and bladder incontinence. The record also contains competent evidence linking the Veteran's disabilities to his service-connected degenerative disc disease. During an August 2005 VA gastroenterology consultation, the Veteran's bowel and bladder incontinence were characterized as most likely related to his spinal cord disorder. Although VA examiners in June 2005, January 2011, and November 2012 provided opinions against the claims, these medical opinions were based on the examiners' conclusions that the Veteran did not have erectile dysfunction or incontinence. As discussed above, the record establishes the presence of the claimed disabilities with competent medical and lay evidence. Additionally, while the VA examiners noted that the Veteran's service-connected lumbar disc disorder did not appear to manifest cord or nerve root compression, MRIs and X-rays dated throughout the claims period have consistently shown a lumbar disc herniation. An August 2008 nerve conduction study also demonstrated bilateral lumbosacral radiculopathy, thereby confirming that the Veteran experiences some neurological impairment due to his back disability despite the VA examiners' interpretation of the MRI and X-ray reports. Finally, while there is no medical evidence directly linking erectile dysfunction to the back disability, the Board finds that the Veteran's statement regarding the onset of the disability and its association with the other neurological manifestations of the degenerative disc disease is sufficient to establish a link with the service-connected lumbar disorder. The record therefore demonstrates current erectile dysfunction, bowel incontinence, and bladder incontinence that are etiologically related to service-connected degenerative disc disease of the lumbar spine and the claims are granted. Right Shoulder The Board also finds that service connection is warranted for a right shoulder disability as secondary to the service-connected degenerative disc disease. In May 2005, the Veteran presented to the VAMC orthopedic clinic with complaints of right shoulder pain following a fall caused by right lower extremity numbness, weakness, and pain. An X-ray confirmed an AC separation and the Veteran was treated with medication and a sling. He continued to complain of pain in the right shoulder later that month at a VA neurological consultation and primary care visit. An October 2005 MRI also indicated a right AC joint ganglion cyst, fluid collection, and moderately-severe osteoarthritis. Several years later, a July 2008 examination from the Social Security Administration (SSA) demonstrated markedly restricted right shoulder range of motion with overhead motion. The diagnosis was chronic dislocation of the right AC joint. The Veteran's right shoulder was examined in June 2005 by a VA examiner who provided an opinion against the claim; however, this opinion was based on the examiner's conclusion that MRIs of the lumbar spine did not indicate any nerve root compression consistent with neurological impairment of the right lower extremity. The examiner therefore concluded that the Veteran's May 2005 fall and shoulder separation were not related to the service-connected back disability. However, as discussed above, the Board has determined that the Veteran's service-connected degenerative disc disease manifests radiculopathy of the bilateral lower extremities. In addition, the Veteran has consistently reported numbness, weakness, and pain in his right leg since a November 1991 VA neurological examination. He also complained of his right leg buckling due to weakness and numbness during a July 2002 VA primary care examination and during an August 2002 VA examination. The Veteran was issued a cane at the VAMC in August 2002 to help with his antalgic gait. Treatment records document the Veteran's fall in May 2005 and initial AC joint separation, and include statements from the Veteran attributing the fall to neurological abnormalities in his right leg. The Board finds that the evidence establishes a current disability, diagnosed as chronic dislocation of the right AC joint, and contains sufficient medical and lay evidence to attribute the disability to a fall incurred due to right lumbar radiculopathy associated with the service-connected lumbar degenerative disc disease. Duties to Notify and Assist 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)) defined VA's duties to notify and assist a veteran in the substantiation 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) (2012). 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; (3) and 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). With respect to the Veteran's claims for service connection, VA has substantially satisfied the duties to notify and assist. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claims. Regarding the claim for an increased rating for degenerative disc disease, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a January 2011 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the January 2011 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a 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 a 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, records of VA treatment, and records from the SSA. The Veteran has not reported undergoing any private treatment of his service-connected degenerative disc disease. Additionally, the Veteran was provided proper VA examinations in January 2011 and November 2012 in response to his claim for an increased rating. The Board also finds that VA has complied with the October 2010 remand orders of the Board. In response to the Board's remand, records from the SSA were associated with the claims file along with VAMC records for the period beginning August 2006. The case was then readjudicated in a December 2012 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a rating in excess of 40 percent for orthopedic impairment from degenerative disc disease at L5-S1 with a bulging disc is denied. Entitlement to a separate rating of 40 percent, but not higher, for neurological impairment of the right lower extremity from degenerative disc disease at L5-S1 with a bulging disc is granted. Entitlement to a separate rating of 10 percent, but not higher, for neurological impairment of the left lower extremity from degenerative disc disease at L5-S1 with a bulging disc is granted. Entitlement to service connection for erectile dysfunction as secondary to service-connected degenerative disc disease is granted. Entitlement to service connection for incontinence of the bowel as secondary to service-connected degenerative disc disease is granted. Entitlement to service connection for incontinence of the bladder secondary to service-connected degenerative disc disease is granted. Entitlement to service connection for a chronic right AC joint dislocation secondary to service-connected degenerative disc disease is granted. REMAND The Board finds that additional development is necessary before a decision may be rendered with respect to the claims for entitlement to an increased rating for a depressive disorder and entitlement to TDIU. Regarding the increased rating claim, the originating agency issued a SSOC in December 2012, but there is no indication that the Veteran's claim was actually readjudicated with consideration of the most recent October 2012 VA psychiatric examination. The VA examination report was not listed on the list of evidence considered by the RO and the analysis section of the SSOC merely stated that no new evidence had been received that pertained to the service-connected depressive disorder. Neither the Veteran nor his representative have provided a waiver of initial Agency of Original Jurisdiction (AOJ) consideration of the October 2012 VA examination. The Veteran has a right to have the evidence considered by the AOJ. 38 C.F.R. § 20.1304(c). Thus, the claim must be remanded to allow for readjudication by the AOJ. The Board also finds that a VA examination and medical opinion are necessary to determine whether the Veteran is unemployable due to his service-connected disabilities in combination. The duty to assist requires that VA obtain an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Therefore, upon remand, the claims file should be provided to a VA examiner with the expertise to render an opinion regarding the cumulative effect of all the Veteran's service-connected disabilities on his employability. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and ask that he properly complete and return the form to support his claim for entitlement to TDIU. 2. The Veteran's claims file should be made available to a VA examiner with sufficient expertise to ascertain whether the Veteran is currently unemployable due solely to service-connected disabilities. The examination report should indicate that the claims file was reviewed by the examiner. The examiner should provide 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's service-connected disabilities are sufficient in combination to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. The rationale for this opinion should be provided. The Veteran is currently service-connected for degenerative disc disease (with neurological complications of bilateral lumbar radiculopathy, incontinence of the bowel and bladder, and erectile dysfunction) and a depressive disorder. He last worked in 1999 with the United States Postal Service (USPS). 3. Readjudicate the claims on appeal with consideration of all evidence of record, including the October 2012 VA psychiatric examination, and any additional evidence associated with the claims file. If the benefits sought are not fully granted, provide the Veteran and his representative a SSOC before returning the case to the Board, if otherwise in order. 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). 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. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs