Citation Nr: 1312065 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 09-30 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 20 percent for ankylosing spondylitis and lumbar spine degenerative disc disease. 2. Entitlement to an initial compensable rating prior to January 9, 2009, and in excess of 20 percent from January 9, 2009, for iritis. 3. Entitlement to an effective date earlier than December 11, 2007, for the 20 percent evaluation for ankylosing spondylitis and lumbar spine degenerative disc disease. 4. Entitlement to an effective date earlier than December 11, 2007, for the grant of service connection for iritis. 5. Entitlement to a total rating based on individual employability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from September 1998 to December 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a February 2009 rating decision, the RO concluded that a 20 percent rating for iritis was warranted effective January 9, 2009, the date that the Veteran called and requested an increased rating. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35, 38 (1992). In this case, the Veteran has not indicated that this increased evaluation satisfies his appeal for a higher initial evaluation of his iritis. Thus, the Board concludes that the issue of entitlement to a higher initial rating for iritis remains before the Board. This case was remanded in May 2011 to obtain VA treatment records and Social Security Administration (SSA) records and to afford the Veteran new VA examinations. Except as discussed in the Remand below, review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of service connection for ankylosing spondylosis of the bilateral ankles and knees have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of an increased rating for the Veteran's lumbar spine, an earlier effective date for the 20 percent evaluation of the lumbar spine and entitlement to a TDIU being remanded 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. Prior to January 9, 2009, the iritis caused pain, rest-requirements or episodic incapacity. 2. Since January 9, 2009, the iritis has not resulted in visual acuity where the vision is 20/70 in one eye and 20/70 in the other eye; 20/100 in one eye and 20/70 in the other eye; 20/200 in one eye and 20/50 in the other eye; 15/200 in one eye and 20/50 in the other eye; 10/200 in one eye and 20/40 in the other eye or 5/200 in one eye and 20/40 in the other eye; or impairment of field of vision. 3. An original claim for service connection for iritis was filed on December 11, 2007, more than one year after the Veteran was separated from service. CONCLUSIONS OF LAW 1. Prior to January 9, 2009, the criteria for an initial 10 percent rating for iritis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.84a Diagnostic Code (DC) 6003 (2008). 2. From January 9, 2009, the criteria for a rating in excess of 20 percent for iritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.84a Diagnostic Code (DC) 6003 (2008). 3. The criteria for the award of an effective date earlier than December 11, 2007, for the grant of service connection for iritis have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the Veteran's claim for a higher rating for iritis, as well as an earlier effective date for the grant of service connection for iritis, arises from his disagreement with the initial evaluation and effective date following 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). Regardless, December 2007 and February 2008 letters informed the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), post-service medical records, Social Security Administration (SSA) records and also secured examinations in furtherance of his claim. Pertinent VA examinations were obtained in January 2008, February 2009 and June 2011. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic codes, and considered the full history of the disability. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis A. Initial Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court has indicated that a distinction must be made between a Veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Consequently, the Board will evaluate the Veteran's eye disability as a claim for a higher evaluation of the original award. Also, when an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings. Id. The Veteran contends that he is entitled to an initial compensable rating prior to January 9, 2009, and in excess of 20 percent from January 9, 2009, for the service-connected iritis due to the severity of his symptomatology. In evaluating this disability, the Board observes that some of the Veteran's treatment records refer to "uveitis" instead of "iritis." However, as both diagnoses appear to refer to the symptoms and disability being rated, the Board will not differentiate between the two when evaluating this service-connected eye disability. This service-connected disability is rated as zero percent or noncompensably disabling prior to January 9, 2009, and as 20 percent disabling from January 9, 2009, under 38 C.F.R. § 4.84a, DC 6003, which evaluates impairment from iritis. While the appeal was pending, the rating schedule for evaluating disabilities of the eyes was revised and amended. See 73 Fed. Reg. 66543 -54 (Nov. 10, 2008). The effective date of the revisions is December 10, 2008, and the revised criteria apply to all applications for benefits received by VA on or after that date. Because the Veteran's claim was received prior to December 10, 2008, the revised criteria are not for application in his case. As noted in the Introduction, by way of a February 2009 rating decision, the RO awarded an increased evaluation effective January 9, 2009, the date the Veteran called the RO to request an increased rating. In awarding a 20 percent rating, the RO utilized the rating criteria in effect since December 10, 2008, as opposed to the pre-amendment criteria. The Board observes that following the December 2008 rating decision that granted service connection for iritis with a noncompensable evaluation, the Veteran filed a timely notice of disagreement in December 2008 in which he disagreed with the initial rating assigned. Thus, notwithstanding the Veteran's telephone call in January 2009, the Board finds that the rating assigned to his iritis was already on appeal and therefore, the January 2009 call was not an increased rating claim. As such, the Board considers the Veteran's claim to have been pending since it was filed in December 2007, which means that the pre-amendment criteria apply. Although the RO mistakenly rated the Veteran's disability under the amended criteria, the Board observes that the AMC in a September 2012 supplemental statement of the case (SSOC) applied the appropriate rating criteria in effect at the time of the Veteran's claim. As the claim was initially rated under the old criteria in the December 2008 rating decision on appeal, and as the SSOC apprised the Veteran of the former criteria, the Board finds that the Veteran will not be prejudiced by the Board's rating under the 2008 criteria. Under the criteria in effect at the time of the December 2007 claim for evaluating diseases of the eye, DCs 6000 through 6009, in chronic form, are to be rated from 10 percent to 100 percent disabling for impairment of visual acuity or loss of field of vision, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. A minimum rating of 10 percent is to be assigned during active pathology. 38 C.F.R. § 4.84a, DC 6003 (2008). Ratings for impairment of visual acuity are found in DCs 6061 through 6079, which provide a chart wherein the visual acuity in one eye is compared to the visual acuity in the other eye to achieve the bilateral rating. 38 C.F.R. § 4.84a, DCs 6061-6079, Table V (2008). The best distance vision obtainable after best correction by glasses will be the basis of rating, except in cases of keratoconus in which contract lenses are medically required. Also, if there exists a difference of more than four diopters of spherical correction between the two eyes, the best possible visual acuity of the poorer eye without glasses, or with a lens of not more than four diopters difference from that used with the better eye will be taken as the visual acuity of the poorer eye. When such difference exists, close attention will be given to the likelihood of congenital origin in mere refractive error. 38 C.F.R. § 4.75 (2008). A 10 percent disability rating is warranted for visual acuity where vision is 20/50 in one eye and 20/40 in the other eye; or where the vision is 20/50 in one eye and 20/50 in the other eye; or where vision is 20/70 in one eye and 20/40 in the other eye; or where vision is 20/100 in one eye and 20/40 in the other eye. 38 C.F.R. § 4.84a, DCs 6078, 6079. A 20 percent disability rating is warranted for visual acuity where the vision is 20/70 in one eye and 20/50 in the other eye; or where vision is 20/100 in one eye and 20/50 in the other eye; or where vision is 20/200 in one eye and 20/40 in the other eye; or where vision is 15/200 in one eye and 20/40 in the other eye. 38 C.F.R. § 4.84a, DCs 6077, 6078. A 30 percent disability rating is warranted for visual acuity where the vision is 20/70 in one eye and 20/70 in the other eye; or where vision is 20/100 in one eye and 20/70 in the other eye; or where vision is 20/200 in one eye and 20/50 in the other eye; or where vision is 15/200 in one eye and 20/50 in the other eye; or where vision is 10/200 in one eye and 20/40 in the other eye; or where vision is 5/200 in one eye and 20/40 in the other eye. 38 C.F.R. § 4.84a, DCs 6074, 6076, 6077, 6078. Ratings for impairment of field vision are evaluated from 10 to 30 percent under DCs 6080 and 6081. A 10 percent rating under DC 6080 is warranted for (a) concentric contraction of visual field to 60 degrees but not to 45 degrees unilaterally; (b) concentric contraction of visual field to 45 degrees but not to 30 degrees unilaterally; (c) concentric contraction of visual field to 30 degrees but not to 15 degrees unilaterally; (d) loss of nasal half of visual field unilaterally; or (e) loss of temporal half of vision field unilaterally. 38 C.F.R. § 4.84a, DC 6080 (2008). A 20 percent rating under DC 6080 is warranted for (a) concentric contraction of visual field to 60 degrees, but not to 45 degrees bilaterally; (b) concentric contraction of visual field to 15 degrees, but not to 5 degrees unilaterally; or (c) loss of nasal half of visual field bilaterally. Id. A 30 percent rating under DC 6080 is warranted for (a) concentric contraction of visual field to 45 degrees, but not to 30 degrees bilaterally; (b) concentric contraction of visual field to 5 degrees unilaterally; (c) loss of temporal half of visual field bilaterally; or (d) homonymous hemianopsia impairment of field vision. Id. DC 6081 provides for a minimum 10 percent rating for large or centrally located pathological scotoma. 38 C.F.R. § 4.84a, DC 6081 (2008). A Note which follows the rating criteria indicates that the disability should be rated on loss of central visual acuity or impairment of field vision. Id. Regarding the determination of field loss, the extent of contraction of visual field in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45 degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in table III of VA's Rating Schedule for determining average concentric contraction of visual fields. The degrees lost are then added together to determine total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by eight represents the average contraction for rating purposes. 38 C.F.R. § 4.76a (2008). Based on the evidence of record, when affording the Veteran the benefit-of-the-doubt, the Board concludes that an initial 10 percent rating is warranted from the date of service connection through January 9, 2009. However, a rating in excess of 20 percent is not warranted from January 9, 2009. The Veteran's contentions throughout this appeal have indicated pain, rest-requirements, or episodic incapacity since the award of service connection. In this case, private treatment records and VA treatment records dated in December 2007 show that the Veteran had active iritis. A VA record dated in December 2007 indicates that the Veteran's recent bout of recurrent iritis began one week ago. He had had four episodes over the years. The Veteran was assessed as having iritis in January 2008. At a January 2008 VA examination, the Veteran reported having four episodes of iritis over the past four to five years. His reported symptoms included pain, redness, swelling, light sensitivity, watering and blurred vision, which occurred during episodes of iritis and resolved with successful treatment. Slit lamp examination revealed healthy anterior structures in both eyes without active iritis. No active iritis was diagnosed. A VA treatment record dated in February 2008 showed that the Veteran's ocular inflammation was much improved. He denied any acute visual changes at that time. Examination revealed that his eyes were anicteric, moist and clear. A record dated in August 2008 shows that the Veteran denied having uveitis or ocular inflammation since starting Humira. For the initial rating period from the award of service connection through January 9, 2009, the evidence reveals that the Veteran required continuous medication to prevent flare-ups of his iritis. Considering the Veteran's overall contentions throughout this appeal, as well as the fact that continuous medication is required to prevent recurrences of his chronic iritis, the Board concludes that the Veteran's eye disability is more disabling than that contemplated for by a noncompensable rating. As noted above, in cases where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Affording the Veteran the benefit-of-the-doubt, the Board concludes a 10 percent rating, but no higher, is warranted prior to January 9, 2009. A rating in excess of 10 percent for this period is not warranted as the evidence does not show that the iritis caused the Veteran's vision to be 20/70 in one eye and 20/50 in the other eye; 20/100 in one eye and 20/50 in the other eye; 20/200 in one and 20/40 in the other eye; or 15/200 in one eye and 20/40 in the other eye. Here, the Veteran had corrected distance vision of 20/25 in the right eye and 20/20 in the left eye at the January 2008 VA examination. None of the Veteran's treatment records during this period reveal corrected vision acuity warranting a rating in excess of 10 percent. The evidence for this period also does not show any visual field loss. The January 2008 examiner specifically found that there was no visual field deficit. As such, a rating of 10 percent, but no higher, is warranted from December 11, 2007, to January 9 2009. For the period from January 9, 2009, the evidence does not show that a rating in excess of 20 percent is warranted. The Veteran's pertinent treatment records fails to show visual acuity where the vision is 20/70 in one eye and 20/70 in the other eye; 20/100 in one eye and 20/70 in the other eye; 20/200 on one eye and 20/50 in the other eye; 15/200 in one eye and 20/50 in the other eye; 10/200 in one eye and 20/40 in the other eye; or 5/200 in one eye and 20/40 in the other eye. At a February 2009 VA examination, the Veteran's corrected distant vision acuity was 20/20- in the right eye and 20/20 in the left eye. A June 2011 VA examination revealed corrected distant vision acuity of 20/30 in the right eye and 20/25 in the left eye. As such, the results of these examinations fails to show that the Veteran's iritis caused visual acuity warranting a rating in excess of 30 percent. The evidence also fails to show that the Veteran had impairment of field vision warranting a 30 percent rating. As noted above, a 30 percent rating for impairment of field vision requires concentric contraction of visual field to 45 degrees, but not to 30 degrees bilaterally; concentric contraction of visual field to 5 degrees unilaterally; loss of temporal half of visual field bilaterally; or homonymous hemianopsia impairment of field vision. The Veteran's pertinent treatment records for this period fail to show such impairment. The February 2009 examiner opined that the Veteran had no visual field defects when screened with frequency doubling perimetry. The June 2011 examiner also found that the Veteran did not have a visual field defect. Therefore, as none of the VA examinations or treatment records show visual field defects, the Board concludes that a rating in excess of 20 percent for impairment of field vision is not warranted. For these reasons, the Board finds that the criteria for an initial 10 percent rating for iritis prior to January 9, 2009, have been met. However, the criteria for a rating in excess of 20 percent rating from January 9, 2009, have not been met. Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's iritis symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's iritis has resulted in interference with employment or activities of daily life which would warrant a compensable rating. To the extent that the Veteran indicates that his iritis interferes with his employability, as discussed below, the Board is remanding the issue of entitlement to a TDIU. B. Earlier Effective Date The Veteran contends that he is entitled to an effective date earlier than December 11, 2007, for the grant of service connection for iritis since he has had iritis since his military service. See, e.g., December 2008 notice of disagreement. The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2012). The Board notes that a specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151 (2012). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2012). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). Any communication or action indicating an intent to apply for a benefit may be considered an informal claim. 38 C.F.R. § 3.155 (2012). An informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). Where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within one year of the date of request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a) (2012). Where a prior claim has been abandoned, the veteran must file a new claim, and the effective date of service connection will not be earlier than the date of the receipt of the new claim, or the date entitlement arose, whichever is later. 38 C.F.R. §§ 3.158, 3.400(b) (2012). Based on a review of the evidence, the Board concludes that the criteria for the award of an effective date earlier than December 11, 2007, for the grant of service connection for iritis have not been met. The Veteran was medically discharged from service on December 5, 2002. Prior to his discharge, an original claim was filed seeking service connection for various disorders in August 2002. He did not seek service connection for an eye disability at that time. In July 2003, the Veteran filed a second service connection claim; again, he did not include his eye disability. The evidence does not show, nor does the Veteran contend, that he included his eye disability in these claims. Post-service medical records indicate that the Veteran had iritis at least as early as October 2007, if not even prior to then. The evidence shows that the claim for iritis and which led to this appeal was received by the RO on December 11, 2007. The Veteran has not contended, nor does the evidence show, that a claim, either informal or formal, seeking service connection for an eye disorder was received prior to December 11, 2007. As noted above, the effective date of an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (emphasis added). In this case, although the Veteran had iritis prior to December 11, 2007, as the date of receipt of the claim is the later of the two dates, the earliest effective date for the grant of service connection that may be assigned is the presently assigned date of December 11, 2007. While the Board recognizes the Veteran's belief that the effective date for his grant of service connection for iritis should be earlier than December 11, 2007, because he had iritis prior to that date, the governing legal authority is clear and specific, and VA is bound by it. As a result, the Veteran's claim for an earlier effective date is denied. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and his claim of entitlement to an effective date earlier than December 11, 2007, for the grant of service connection for iritis is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to an initial 10 percent rating prior to January 9, 2009, for iritis is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 20 percent from January 9, 2009, for iritis is denied. Entitlement to an effective date earlier than December 11, 2007, for the grant of service connection for iritis is denied. REMAND Regrettably, another remand is necessary for further evidentiary development of the Veteran's remaining claims. The May 2011 Board remand noted that the Veteran argued that his lumbar spine disability should be evaluated as rheumatoid arthritis. The Veteran's disability is currently evaluated pursuant to 38 C.F.R. § 4.71, DC 5240, which specifically addresses ankylosing spondylitis. Information set forth in the February 2009 Compensation & Pension Service Bulletin, however, indicates that when evaluating ankylosing spondylitis, the rater must determine whether it is an active process and if so, it should be evaluated under DC 5009, which directs that the disability be rated as rheumatoid arthritis under DC 5002. In remanding for an examination, the Board requested that the examiner state whether the Veteran's ankylosing spondylitis was an "active process" as opposed to chronic residuals affecting the spine and any other joints. Pursuant to the Board's remand, an examination was obtained in June 2011; however, the examiner did not provide the requested opinion as to whether the Veteran's ankylosing spondylitis was an "active process." Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board finds that the Veteran's increased rating for his lumbar spine must be remanded yet again for the requested opinion as to whether the ankylosing spondylitis is active or not. In this regard, the pertinent medical evidence is not clear as to whether it is an active process or not. A record dated in January 2012 indicates that the ankylosing spondylitis had questionable ongoing activity, while a May 2012 record shows that there was no clinical or radiological evidence consistent with active ankylosing spondylitis. As for the issue of whether an earlier effective date for the 20 percent evaluation for the Veteran's lumbar spine disability is warranted, the Board finds that this issue must also be remanded as it is inextricably intertwined with the increased rating claim. The appropriate remedy where a pending claim is inextricably intertwined with claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication of the Veteran's earlier effective date claim is deferred. Additionally, the Veteran's contentions throughout this appeal have indicated that he is unemployable as a result of his service-connected lumbar spine and vision disabilities. Indeed, the Veteran filed a claim for a TDIU in February 2008, which was subsequently denied by the RO in the December 2008 rating decision. The Veteran's contentions since then continue to raise a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). With regards to the Veteran's unemployability, a November 2011 VA general medical examination indicates that the Veteran's service-connected disabilities of lumbar spine ankylosing spondylosis, and degenerative disc disease L4-L5 and L5-S1; and sacroiliitis, bilateral hips, at least as likely as not rendered him unable to secure and maintain substantially gainful employment (emphasis added). This opinion was supported by a rationale. Although a medical opinion indicating that the Veteran is unemployable due to service-connected disabilities has been provided, the Board observes that the Veteran does not currently meet the schedular criteria for the award of a TDIU as he is not rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities with at least one disability rated at least at 40 percent. 38 C.F.R. § 4.16(a) (2012). Nevertheless, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). However, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, although a positive opinion has been provided indicating that the Veteran is unemployable due to service-connected disabilities, even though the Board has jurisdiction of the issue of a TDIU under Rice, the Board is precluded from assigning a TDIU on an extraschedular basis. Furthermore, the claim for a TDIU is inextricably intertwined with the increased rating claim for his lumbar spine disability. Consequently, a remand of this issue is required. The most recent VA treatment records from the VA Medical Center (VAMC) in Lebanon, Pennsylvania are dated in August 2012. On remand, records of any VA lumbar spine treatment that the Veteran received since August 2012 should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a Veterans Claims Assistance Act of 2000 notice letter for the claim for a TDIU. 2. After obtaining the appropriate release of information forms where necessary, procure records of post-service lumbar spine treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the Lebanon VAMC. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 3. Obtain an addendum medical opinion from the June 2011 VA examiner (or, if unavailable, from a medical professional with appropriate expertise). The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. The examiner is requested to review the record, and offer an opinion as to whether the Veteran's ankylosing spondylitis is an "active process" as opposed to chronic residuals affecting the spine and any other joints. In answering this question, the examiner should address the January 2012 record showing questionable ongoing activity and the May 2012 indicating that it was not active. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 4. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 5. Then, readjudicate the issues on appeal, to include the issue of entitlement to a TDIU. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs